Citation Nr: 21006047 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 13-34 031 DATE: February 3, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for right hip inflammatory arthritis based on limitation of extension is denied. Entitlement to an initial compensable rating for right hip inflammatory arthritis based on limitation of flexion is denied. Entitlement to an initial compensable rating for right hip inflammatory arthritis based on thigh impairment prior to December 23, 2019 is denied. Entitlement to a 10 percent rating, but no higher, for right hip inflammatory arthritis based on thigh impairment since December 23, 2019 is granted, subject to the laws and regulations governing the award of monetary benefits. REMANDED Entitlement to a rating in excess of 10 percent for a traumatic brain injury (TBI) is remanded. FINDINGS OF FACT 1. Right hip inflammatory arthritis is not manifested by flexion limited to 45 degrees or less, a limitation of abduction with motion lost beyond 10 degrees or by limitation of rotation with inability to toe-out more than 15 degrees. 2. Prior to December 23, 2019, right hip inflammatory arthritis was not manifested by a limitation of adduction with inability to cross the legs. 3. Since December 23, 2019, right hip inflammatory arthritis was manifested by a limitation of adduction with inability to cross the legs. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for right hip inflammatory arthritis based on limitation of extension have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.14, 4.40, 4.59, 4.71a, Diagnostic Codes (DCs) 5251, 5252, 5253. 2. The criteria for entitlement to a compensable rating for right hip degenerative arthritis based on limitation of flexion have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.14, 4.40, 4.59, 4.71a, DCs 5251, 5252, 5253. 3. The criteria for entitlement to a compensable rating for right hip degenerative arthritis based on thigh impairment prior to December 23, 2019 were not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.14, 4.40, 4.59, 4.71a, DCs 5251, 5252, 5253. 4. The criteria for entitlement to a 10 percent rating, but no higher, for right hip degenerative arthritis based on a limitation of right hip adduction with inability to cross the legs since December 23, 2019 is met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.14, 4.40, 4.59, 4.71a, DC 5253. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2001 to August 2004 and is the recipient of the Purple Heart and Combat Infantryman Badge. These matters are before the Board of Veterans’ Appeals (Board) on appeal of an August 2011 Department of Veterans Affairs (VA) rating decision. In a July 2016 rating decision during the course of this appeal, the Agency of Original Jurisdiction (AOJ) awarded separate noncompensable ratings for right hip inflammatory arthritis based on thigh impairment and flexion. Although the Veteran did not separately appeal those decisions, they are part of the claim on appeal for entitlement to an increased rating for right hip inflammatory arthritis. Also, in the July 2016 rating decision, the Veteran’s existing 10 percent rating for right hip inflammatory arthritis (previously rated under DC 5252 based on pain on motion in the hip under 38 C.F.R. § 4.59) was recharacterized as right hip inflammatory arthritis based on limitation of extension, and his 10 percent rating was reassigned under DC 5251 for the entire period on appeal. In June 2015 and March 2019, the Board remanded the appeals for further development. The issues have now been returned to the Board. Entitlement to an initial rating in excess of 10 percent for right hip inflammatory arthritis based on limitations of extension, to a compensable rating based on limitation of flexion and to a compensable rating based on thigh impairment prior to December 23, 2019 is denied; entitlement to a 10 percent rating based on thigh impairment since December 23, 2019 is granted. The Veteran contends that his right hip inflammatory arthritis is more severely disabling than represented by the 10 percent rating assigned based on limitation of extension and the noncompensable ratings assigned based on limitation of flexion and thigh impairment. Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1999). Nevertheless, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods within the period on appeal. Where there is a question as to which of the two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to these elements. In addition, functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The normal range of hip motion is measured from zero degrees of extension to 125 degrees of flexion; abduction is measured from zero degrees to 45 degrees. 38 C.F.R. § 4.71a, Plate II. The Veteran’s right hip degenerative arthritis is currently rated under DC 5251 which provides for a maximum 10 percent evaluation where thigh extension is limited to five degrees or less. Id. Limitation of hip motion can also be evaluated under DC 5252. Under that code, a 10 percent disability evaluation is assigned for flexion of the thigh limited to 45 degrees. For a 20 percent evaluation, there must be limitation of flexion to 30 degrees. 38 C.F.R. § 4.71a. DC 5253 provides for evaluations based on impairment of the thigh. Limitation of adduction with inability to cross the legs is assigned a 10 percent rating and limitation of rotation with inability to “toe-out” (externally rotate) more than 15 degrees is assigned a 10 percent rating. Limitation of abduction with motion lost beyond 10 degrees is assigned a 20 percent rating. Id. In June 2011 a VA examiner reported right hip flexion to 100 degrees, extension to 10 degrees and abduction to 30 degrees. The Veteran was able to cross the right leg over the left and could toe out more than 15 degrees. The examiner noted right hip pain, which increased following repetitive use, as well as popping, and stiffness after squatting. In a January 2012 private treatment record, the Veteran’s right hip range of motion was flexion to 95 degrees, internal rotation to 0 degrees, external rotation to 40 degrees, abduction to 40 degrees, and adduction to 25 degrees. In a March 2012 private treatment record, the Veteran’s right hip range of motion was flexion to 90 degrees, internal rotation to 20 degrees, and external rotation to 40 degrees. In an April 2012 private treatment record, the Veteran’s right hip range of motion was flexion to 100 degrees, internal rotation to 10 degrees, external rotation to 40 degrees, abduction to 40 degrees, and adduction to 20 degrees. In a July 2012 private treatment record, the Veteran’s right hip range of motion was flexion to 105 degrees, internal rotation to 10 degrees, external rotation to 40 degrees, abduction to 40 degrees, and adduction to 20 degrees. In September 2013 a VA examiner reported right hip flexion to 95 degrees and extension to 5 degrees. Abduction was not lost beyond 10 degrees, nor was adduction limited such that the Veteran could not cross his legs. Rotation was not limited such that the Veteran could not toe-out more than 15 degrees. The examiner provided right hip “[active range of motion]” measurements of internal rotation to 25, 28 and 22 degrees, external rotation to 25, 15, and 18 degrees, abduction to 10, 11, and 15 degrees, and adduction to 30, 21, and 30 degrees. The Veteran did not report right hip flare-ups but reported that the right hip “pops all the time,” and that his hip was worse with squatting, standing, and sitting. A September 2013 VA treatment record noted right hip internal rotation to 5 degrees, and external rotation to 30 degrees. In November 2013, the Veteran stated that at his VA examination, the examiner moved his hips further than he would have moved them due to pain, and “assisted” him with crossing his legs. The Veteran noted that his hip disability affected his ability to play with his children, drive, and sleep at night. In January 2016 a VA examiner reported right hip flexion to 110 degrees, extension to 0 degrees, abduction to 45 degrees, adduction to 15 degrees, external rotation to 40 degrees, and internal rotation to 40 degrees. Adduction was not limited such that the Veteran could not cross his legs. The Veteran did not report right hip flare-ups, but stated his right hip popped in and out and started hurting if he performed the same movement for 30 minutes. On VA examination on December 23, 2019, the examiner noted right hip flexion to 110 degrees, extension to 15 degrees, abduction to 40 degrees and adduction to 15 degrees. External and internal rotation were to 35 degrees. Adduction was limited such that the Veteran could not cross his legs. The Veteran did not report flare-ups but reported constant right hip pain and stated he had to change positions from sitting to standing often due to pain. The examiner noted that the examination was conducted immediately after repetitive use. The Board finds that, based on the foregoing evidence, a 10 percent rating is warranted for right hip inflammatory arthritis based on limitation of adduction with inability to cross legs, effective December 23, 2019. On that date, the Veteran demonstrated adduction limited such that he could not cross his legs, warranting a 10 percent rating under DC 5253. The criteria for any higher or separate rating during the period on appeal are not met. In this regard, the Veteran is in receipt of the maximum schedular rating based on limitation of extension throughout the period on appeal. The evidence preponderates against finding flexion limited to 45 degrees or less, limitation of abduction with motion lost beyond 10 degrees, or limitation of rotation with inability to toe-out more than 15 degrees at any time during this period. While the September 2013 VA examiner listed right hip abduction as “10, 11, and 15” degrees, the preponderance of those measurements was in excess of 10 degrees. Additionally, prior to December 23, 2019, there is no evidence of limitation of adduction with inability to cross the legs. The Board has considered the Veteran’s November 2013 report that on VA examination, the examiner pushed his right hip beyond the point of pain and “assisted” him to cross his legs. The Veteran did not specifically assert that he was unable to cross his legs on his own, and the November 2013 examiner provided the Veteran’s right hip range of motion as “[active]” adduction to 30, 21, and 30 degrees, a greater range of adduction than reported at the subsequent January 2016 examination where the examiner again concluded that the limitation of adduction did not prevent the Veteran from crossing his legs. This evidence preponderates against finding that a compensable rating is warranted based on a limitation of right hip adduction prior to December 23, 2019. All of the Veteran’s additional reported symptoms have been considered, to include his reports of right hip pain, popping and stiffness. The Board is sympathetic to the pain experienced by the Veteran. However, these symptoms do not reveal flexion limited to 45 degrees or less, limitation of abduction with motion lost beyond 10 degrees, limitation of rotation with inability to toe-out more than 15 degrees, or limitation of adduction with inability to cross the legs prior to December 23, 2019, and therefore do not approximate the criteria for a higher or separate rating. Based on the foregoing, a separate 10 percent rating is warranted since December 23, 2019 based on limitation of right hip adduction with inability to cross the legs. Any other higher or separate rating for right hip inflammatory arthritis is denied. REASONS FOR REMAND Entitlement to a rating in excess of 10 percent for a TBI is remanded. In its March 2019 remand, the Board directed that the AOJ determine whether neuropsychiatric testing was conducted at the July 2016 VA examination, and if so, to obtain the results of that testing. If not, the AOJ was to schedule the Veteran for a new VA TBI examination to assess the current severity of his disability, to specifically include “testing of the Veteran’s memory.” In December 2019 the Veteran attended a VA examination and the examiner found that the Veteran exhibited “mild memory loss…attention, concentration or executive functions, but without objective evidence on testing.” In response to the question of whether neuropsychiatric testing had been conducted, the examiner indicated “yes” and stated that neuropsychiatric testing had been conducted in June 2008, indicating no memory problems on formal testing. The examiner’s notation suggests that he relied on the June 2008 neuropsychiatric testing results to conclude that the Veteran did not exhibit objective evidence of memory loss. However, the June 2008 testing results are outside of the period at issue in this case, and insofar as the December 2018 examiner relied on such results, that examination is inadequate. There is no indication that the December 2018 examiner conducted current memory testing at the time of the examination as directed by the March 2019 remand directives. Accordingly, remand is required to obtain a medical examination specifically indicating that memory testing was conducted as directed by the March 2019 remand directive. Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally, the December 2018 examiner concluded that the Veteran’s headaches were not a symptom of his TBI. As a result, the examiner did not complete a separate disability benefits questionnaire relating to headaches as directed by the TBI questionnaire. However, the June 2011, September 2013, and July 2016 VA examiners attributed the Veteran’s headaches to his TBI, and the December 2019 examiner himself ambiguously listed “headache” as a subjective symptom of TBI. On remand, the Veteran must be provided a VA examination which adequately addresses the severity of headaches, to include completion of the corresponding disability benefits questionnaire. The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected TBI. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. a. The examiner must conduct current neuropsychiatric testing, to include memory testing, and the examiner must specifically indicate that such testing was performed. b. The examiner must complete the appropriate disability benefits questionnaire to assess the current severity of the Veteran’s headaches. LAURA E. COLLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Paul J. Bametzreider 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.