Citation Nr: 21076640 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 17-29 477 DATE: December 27, 2021 ORDER A compensable rating for service-connected right hip disability (limitation of extension) is denied. A rating in excess of 40 percent for service-connected right hip disability (right hip strain with degenerative joint disease) is denied as the Veteran is receiving the highest schedular rating. A rating in excess of 10 percent for service-connected right hip disability (impairment of the thigh) is denied. FINDINGS OF FACT 1. The Veteran's right hip disability did not manifest extension limited to 5 degrees during the appeals period. 2. The Veteran's right hip disability is rated as 40 percent disabling, which is the maximum schedular rating permitted for limitation of flexion of the thigh. 3. The Veteran's right hip disability is manifested by pain and limitation of rotation the thigh. CONCLUSIONS OF LAW 1. The criteria for a rating for a 10 percent for right hip strain, limitation of extension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5251. 2. The criteria for a rating in excess of 40 percent for right hip strain with degenerative joint disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5252. 3. The criteria for a rating in excess of 10 percent for right hip strain, impairment of thigh have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5253. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1975 to April 1980. This case is on appeal to the Board of Veterans' Appeals (Board) from an October 2014 Department of Veterans Affairs (VA) Regional Office (RO) rating decision that granted service connection for right hip strain and assigned an initial 10 percent rating effective from April 15, 2014. The Veteran appealed for a higher initial rating for the right hip disability. See October 2015 Notice of Disagreement (NOD). A November 2019 Board decision denied entitlement to an initial rating higher than 10 percent for service-connected right hips train with degenerative joint disease (right hip disability), to include separate compensable ratings for impairment of the right hip abduction/adduction, limitation of right thigh flexion, and limitation of rotation. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a September 2020 Order, the Court vacated and remanded the Board's decision pursuant toa Joint Motion for Partial Remand (JMPR). Subsequently, an October 2021 rating decision granted the Veteran a 40 percent rating for a right hip strain (pursuant to Diagnostic Code (DC) 5252); a 10 percent rating for thigh impairment (pursuant to DC 5253) and a noncompensable rating for limitation of extension (pursuant to DC 5251). Increased Rating Disability ratings are determined by comparing a veteran's present symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A review of the recorded history of a disability is necessary to make an accurate rating. 38 C.F.R. §§ 4.2, 4.41. The regulations do not give past medical reports precedence over current findings where such current findings are adequate and relevant to the rating issue. Francisco v. Brown, 7 Vet. App. 55 (1994); Powell v. West, 13 Vet. App. 31 (1999). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's right hip disabilities are rated under 38 C.F.R. § 4.71a, to include a noncompensable rating under DC 5251, for limitation of extension of the thigh; a 40 percent rating under DC 5252, for limitation of flexion of the thigh; and a 10 percent rating under DC 5253, for impairment of the thigh. Under Diagnostic Code 5251, a maximum 10 percent rating is warranted for extension of the thigh limited to 5 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5251. Under Diagnostic Code 5252, a maximum 40 percent rating is warranted for flexion limited to 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5252. Under Diagnostic Code 5253, a 10 percent rating is warranted for limitation of rotation of affected leg, cannot toe out more than 15 degrees. A 10 percent rating is also warranted for limitation of adduction, cannot cross legs. A maximum 20 percent rating is warranted for limitation of abduction, motion lost beyond 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5253. The Board notes that during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised Diagnostic Codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." However, the ratings under Diagnostic Codes 5151, 5152, and 5153 were unaffected by the regulatory changes. 1. Limitation of Extension (DC 5251) The Veteran seeks a compensable rating under DC 5251. The Veteran was afforded a VA examination in March 2017. At the time of the examination, the Veteran stated that she recently reported to her primary physician with complaints of right hip pain. The Veteran denied having flare-ups of the hip or thigh. Range of motion testing revealed flexion to 100 degrees, extension to 25 degrees, abduction to 30 degrees, and adduction to 25 degrees. Adduction was not limited such that the Veteran cannot cross legs. There was no showing of pain with weight bearing and no evidence of crepitus. Veteran was able to perform repetitive use testing with at least three repetitions and there was no additional loss of function or range of motion after three repetitions. The examiner indicated that they were unable to say whether pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over a period of time because functional loss cannot be quantified on a hypothetical situation. Muscle strength testing was normal (5/5) in all tested categories and there was no muscle atrophy or ankylosis. Pursuant to a Board and CAVC remand, the Veteran was afforded a VA examination in September 2021 where she was diagnosed with degenerative arthritis of the right hip and a right hip strain. The Veteran reported that approximately 60 percent of the time, she has swelling in her right hip which causes her to avoid movement. When her leg becomes stiff, she reports having to drag it and she feels like if she steps on it, it won't work. She reports that her activity level is down to 0 and reports difficulty getting out of bed. The Veteran indicated that she cannot stand and sit for very long and she is unable to walk on the treadmill for more than six minutes without experiencing pain. Her pain is constant and dull in nature; most of the time, the Veteran indicates that her right leg is numb on the outside of the entire leg and on the bottom of her foot. The Veteran reported experiencing flare-ups. The Veteran indicates that during flare-ups she has a decrease in activity level in order to make sure she doesn't "over do it" and that she cannot stand or sit very long due to pain by these activities. Flare-ups are brought on by activity. Upon examination, the Veteran demonstrated flexion to 40 degrees, extension to 20 degrees, abduction to 20 degrees, and adduction to 10 degrees. The Veteran demonstrated external rotation endpoint to 25 degrees and internal rotation endpoint to 20 degrees. The Veteran reports burning pain and numbness through all ranges of motion (ROM) with right hip flexion and abduction being the worst out of all of the ranges. ROM and pain reporting confounded by lower back pain (Veteran was clutching her lower back through the ROMs). The Veteran was able to perform repetitive-use testing with at least three repetitions without additional loss of function or ROM. Repetitive use over time revealed the same ROM as original ROM, no additional loss of ROM was noted. During flare-ups, the examiner indicates that pain creates functional loss and estimates that the Veteran would experience flexion to 10 degrees, extension to 20 degrees, abduction to 15 degrees, and adduction to 10 degrees. The examiner noted that interference with standing, disturbance of locomotion, less movement than normal, interference with sitting, swelling, and more movement than normal are contributing factors of the Veteran's disability. This exam showed no evidence of muscle atrophy, ankylosis, malunion or nonunion of femur, flail hip joint or leg length discrepancy. The Veteran did not report using any assistive devices. The examiner indicated that the results of this exam were confounded by lower back pain. The Veteran walked with an altered gait consisting stiff leg movements in a waddling fashion and limping favoring the left leg. VA treatment records do not show worse findings than demonstrated at the September 2021 VA examination. Based on the above, the Board finds that a compensable rating is not warranted for limitation of extension of the right hip. Here, extension was not limited to 5 degrees at any point in the appeal period, even when considering the Veteran's reports of flare-ups. As such, an increased rating is not warranted, and the claim is denied. 2. Limitation of Flexion (DC 5252) As the Veteran is in receipt of the highest schedular rating for limitation of flexion of the thigh, there is no basis to award a higher rating. The Board has also considered the other Diagnostic Codes pertaining to the hip and thigh. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). The Veteran is already rated under both DC 5253 and DC 5251 for her right hip disability. As the Veteran already has the maximum schedular disability rating under this Diagnostic Code, the appeal is denied. 3. Limitation of Rotation, Adduction or Abduction (DC 5253) The Veteran seeks an increased rating for her hip disability under DC 5253. The Veteran is currently rated at 10 percent. A maximum 20 percent rating would be warranted for limitation of abduction, motion lost beyond 10 degrees. 38 C.F.R. § 4.71a, DC 5253. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for a right hip disability. As noted above, at her most recent VA examination the Veteran demonstrated flexion to 40 degrees, extension to 20 degrees, abduction to 20 degrees, adduction to 10 degrees, external rotation endpoint to 25 degrees and internal rotation endpoint to 20 degrees. Pain and numbness were noted through all ranges of motion with right abduction being the worst. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain during flare-ups. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that are brought on by increased activity would not result in symptoms more nearly approximating limitation of abduction, motion lost beyond 10 degrees. VA treatment records do not indicate any worse findings for limitation of abduction than those demonstrated at the most recent VA examination. The Board has also considered the other DCs pertaining to the hip and thigh. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). The Board finds the preponderance of the evidence is against finding any additional DCs are appropriate. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's appeal for a rating in excess of 10 percent for a right hip disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. TIFFANY HANSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jennifer M. Narvaez, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.