Citation Nr: 21077368 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 15-25 243 DATE: December 29, 2021 ORDER Entitlement to a rating in excess of 20 percent for a left hip disability is denied. Entitlement to a compensable initial rating for limitation of extension of the left hip is denied. Entitlement to a compensable initial rating for limitation of flexion of the left hip is denied. FINDING OF FACT The left hip disability does not result in limitation of extension to at most five degrees, limitation of flexion to fewer than 80 degrees, abduction lost beyond 10 degrees, or malunion. CONCLUSION OF LAW 1. The criteria for a rating in excess of 20 percent rating for limitation of adduction have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5253. 2. The criteria for a compensable initial rating for limitation of flexion of the left hip have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5252. 3. The criteria for a compensable initial rating for limitation of extension of the left hip have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5251. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from August 1985 to July 1986. The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in February 2017. This matter was previously before the Board, most recently in January 2019 and in June 2021. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. It is the intention of the rating schedule to recognize any painful, unstable or malaligned joint, due to healed injury, by assigning at least the minimum compensable rating for that joint. 38 C.F.R. § 4.59. 38 C.F.R. § 4.59 provides for a minimum 10 percent rating for painful, unstable, or malaligned joints, including for residuals of injuries in non-arthritis contexts. Burton v. Shinseki, 25 Vet. App. 1, 4-5 (2011). With respect to all service-connected joint disorders, evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. 38 C.F.R. §§ 4.40, 4.45; Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995) (holding that, to adequately portray the functional loss of musculoskeletal disabilities, a medical examination must "express an opinion on whether pain could significantly limit functional ability during flare-ups or when the [joint] is used repeatedly over a period of time"). However, those provisions should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. 38 C.F.R. §§ 4.40, 4.45; Johnson v. Brown, 9 Vet. App. 7 (1996). For limitation of extension of the thigh, where extension is limited to 5 degrees, a maximum 10 percent evaluation is assigned. 38 C.F.R. § 4.71a Diagnostic Code 5251. For limitation of flexion of the thigh, where flexion is limited to 45 degrees, a 10 percent evaluation is assigned; where flexion is limited to 30 degrees, a 20 percent evaluation is assigned; where flexion is limited to 20 degrees, a 30 percent evaluation is assigned; and where flexion is limited to 10 degrees, a 40 percent evaluation is assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5252. For impairment of the thigh, a 10 percent rating is warranted for limitation of rotation resulting in ability to toe out more than 15 degrees or limitation of adduction resulting in ability to cross legs. A 20 percent rating is warranted for abduction lost beyond 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5253. The Board notes that VA regulations pertaining to the musculoskeletal system were amended effective February 7, 2021. The amendments do not affect the rating criteria applicable here, however. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020). The record reveals the Veteran's endorsement of pain and popping of the left hip and spasm at the left hip and iliotibial band area. The record further reveals history of increased pain and limp over the course of a day of work or use. VA treatment record dated in 2014 reveal flexion to 100 degrees and external and internal rotation to 15 degrees with pain on extreme internal rotation. A May 2014 VA examination record reveals left hip flexion to 110 degrees and extension to greater than 5 degrees, with pain at the end degrees. After repetition, flexion was additionally limited to 105 degrees. Abduction was not lost beyond 10 degrees, adduction was not limited such that the Veteran cannot cross legs, and rotation was not limited such that the Veteran could not toe out more than 15 degrees. The examiner was unable to state the effect of repeated use over time or flares. Motor strength was full, and there was no ankylosis. The record reports that the Veteran had trouble standing or sitting for long periods without a break or walking long distances. He also reported trouble with squatting and being careful with how much weight he could carry. A March 2015 VA examination record reveals the Veteran's history of increased pain and some weakness in the hip since the previous examination. He reported increased pain in the hip with flares. He reported that during flares, he was still able to walk but with a limp. Examination revealed flexion to 80 degrees, extension to 30 degrees, abduction to 25 degrees, adduction to 15 degrees, internal rotation to 10 degrees, and external rotation to 35 degrees. Adduction was not so limited that the Veteran could not cross legs. There was pain with weight-bearing. There was no loss of motion after repetition. The examiner was unable to state the effect of repeated use or flare on range of motion. Motor strength was full, and there was no ankylosis. A March 2015 private treatment record reports that the Veteran had normal gait, coordination, and muscle tone, 4+/5 left hip flexion strength, and normal range of motion. July 2015 VA treatment record reports the Veteran's history of changing jobs though the current job also aggravated his hip. The record reports that the Veteran ambulated fairly well and had hip rotation to 10 to 15 degrees and flexion to 90 degrees. January and December 2016 VA treatment records report that the Veteran had normal gait, and the December 2016 treatment record reports that the Veteran had normal range of motion of the lower extremities. A June 2018 VA treatment record reports that the Veteran had normal gait and normal range of motion of the lower extremities. An October 2019 VA examination record reveals the Veteran's history of constant left hip pain. The Veteran reported flares approximately once a month which caused him to limp. Examination revealed flexion to 110 degrees, extension to 20 degrees, abduction to 30 degrees, adduction to 25 degrees, external rotation to 40 degrees, and internal rotation to 20 degrees. Adduction was so limited that the Veteran could not cross legs. There was pain on examination but not with weight-bearing. There was no loss of motion after repetition. Functional ability was not significantly limited after repeated use over a period of time. Motor strength was 5/5. There was no ankylosis. In a July 2020 addendum, it was determined that flares would limit flexion an additional 5 to 10 degrees and all other motion an additional 0 to 5 degrees. An October 2020 private treatment record reports that the Veteran had 90 degrees flexion, 10 degrees extension, and 20 degrees abduction. External rotation was limited and painful, and internal rotation was limited. A February 2021 VA examination record reveals the Veteran's history of increased left hip pain that made ambulation difficult. He denied flares. The left hip had active and passive flexion to 110 degrees, extension to 30 degrees, abduction to 40 degrees, adduction to 25 degrees, external rotation to 50 degrees, and internal rotation to 40 degrees. There was pain with motion but not weight-bearing or non-weight-bearing. Adduction was not so limited so as to prevent the Veteran from crossing legs. There was no change in range of motion after repetition. The examiner estimated that repeated use over time would result in additional imitation of internal rotation to 30 degrees but that ranges of motion would otherwise remain the same. The examiner determined functional ability would not be significantly limited with flares. There was no atrophy or ankylosis. The Veteran is currently assigned a 20 percent rating by analogy to Diagnostic Code 5253 for functional impairment including less movement than normal, weakened movement, pain with movement, interference with sitting, standing, and weight-bearing, and episodic instability. After consideration of the record, the Board finds a higher rating is not warranted for the left hip disability under any available diagnostic code. Range of motion testing shows extension to greater than 5 degrees, flexion to at least 80 degrees, and abduction grossly beyond 10 degree. There is no indication, including history, that the range of motion findings are inadequate or were affected by the use of medication, and the record includes estimates on the effect of flares and repeated use over time dated in 2019, 2020, and 2021. Notably, there is also no indication that medication was in effect during clinical testing. In making this determination, the Board reiterates that the effects of functional limitation due to pain, weakness, incoordination, etc. are all considered in the currently assigned 20 percent rating; assigning separate compensable ratings under Diagnostic Code 5251 or 5252 would result in pyramiding. The Board notes that the 2014 and 2015 VA examiners were unable to state whether the Veteran would have additional functional loss due to repeated use over time or flares. The record includes those determinations dated in 2019, 2020, and 2021, however, and the Board notes that there is no evidence that the range of motion findings in the 2014 or 2015 VA examination record are otherwise inadequate for rating purposes. Thus, the Board finds the 2014 and 2015 VA examination record maintain some probative value, even if it does not address repeated use over time or flares. The Board also notes that the VA examination records prior to 2021 do not specify passive range of motion and the records do not specify range of motion in and without weight-bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016). The Board finds no prejudice results from any failure to test passive motion or in non-weight bearing. The fundamental issue for Correia is that VA examinations perform adequate joint testing for pain. Range of motion testing performed for the hip requires standing testing, which is considered to be testing on weight bearing because the Veteran must support the weight of his body while undergoing such testing. Generally, active range of motion testing produces more restrictive results than passive range of motion testing, in that passive range of motion testing requires the physician to force the joint through its motions. Similarly, testing on weight bearing would generally produce more restrictive results than testing done without weight bearing. Therefore, there is no prejudice to the Veteran in relying on the VA examinations that involved active range of motion testing or weight-bearing for the hip because such results tend to produce the "worst case scenario" of impairment and thus would tend to support the highest possible rating. The Board notes that a Veteran may be entitled to a higher disability evaluation for a musculoskeletal disability than that supported by mechanical application of the rating schedule where there is evidence that his or her disability causes additional functional loss, such as the inability... to perform the normal working movements of the body with normal excursion, strength, speed, coordination [,] and endurance, including as due to pain. 38 C.F.R. § 4.40; see Lyles v. Shulkin, 29 Vet. App. 107, 117 (2017). A higher disability evaluation may also be awarded where there is a reduction of a joint's normal excursion of movement in different planes, including changes in the joint's range of movement, strength, fatigability, or coordination. 38 C.F.R. § 4.45 (2020). However, the veteran's functional loss must result in limitation of motion sufficient to satisfy the next disability rating allowable for that particular disorder to be entitled to a higher disability rating under §§ 4.40 and 4.45. See Thompson v. McDonald, 815 F.3d 781, 785-86 (Fed. Cir. 2016). The Board has considered whether a higher or separate rating is warranted under alternate diagnostic codes (i.e., those unrelated to motion) but finds none is applicable. Notably, the record indicates that the Veteran works and there is no indication including history that the work is not substantially gainful or in a protected environment. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Snyder, 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.