Citation Nr: 21006277 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 13-06 220 DATE: February 3, 2021 ORDER Entitlement to an initial rating in excess of 20 percent for limitation of abduction of the right hip is denied. Entitlement to an initial rating in excess of 20 percent for limitation of abduction of the left hip is denied. Entitlement to an initial compensable rating for limitation of extension of the right thigh is denied. Entitlement to an initial compensable rating for limitation of extension of the left thigh is denied. Entitlement to an initial compensable rating for limitation of flexion of the right thigh is denied. Entitlement to an initial compensable rating for limitation of flexion of the left thigh is denied. FINDINGS OF FACT 1. The maximum schedular rating of 20 percent for limitation of abduction of the right hip is assigned. 2. The maximum schedular rating of 20 percent for limitation of abduction of the left hip is assigned. 3. The evidence of record indicates that the Veteran’s right thigh disability has not manifested extension limited to 5 degrees or less throughout the appellate period. 4. The evidence of record indicates that the Veteran’s left thigh disability has not manifested extension limited to 5 degrees or less throughout the appellate period. 5. The evidence of record indicates that the Veteran’s right thigh disability has not manifested flexion limited to 45 degrees or less throughout the appellate period. 6. The evidence of record indicates that the Veteran’s left thigh disability has not manifested flexion limited to 45 degrees or less throughout the appellate period. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating in excess of 20 percent for limitation of abduction of the right hip have not been met, as the maximum schedular rating for limitation of hip abduction is already assigned. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5253. 2. The criteria for entitlement to an initial rating in excess of 20 percent for limitation of abduction of the left hip have not been met, as the maximum schedular rating for limitation of hip abduction is already assigned. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5253. 3. The criteria for entitlement to an initial compensable rating for limitation of extension of the right thigh have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5251. 4. The criteria for entitlement to an initial compensable rating for limitation of extension of the left thigh have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5251. 5. The criteria for entitlement to an initial compensable rating for limitation of flexion of the right thigh have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5252. 6. The criteria for entitlement to an initial compensable rating for limitation of flexion of the left thigh have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5252. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1986 to August 1997. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from a April 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in December 2014. The hearing transcript is of record. The Board remanded the claim in April 2015, July 2018, and June 2019 for further development by the RO. The case has been returned to the Board for further appellate action. Increased Rating A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained 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. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on the facts found, a practice known as ‘staged ratings.’ Fenderson v. West, 12 Vet. App. 119, 12627 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In determining the adequacy of assigned disability ratings, consideration is also given to factors affecting functional loss. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Such factors include a lack of normal endurance and functional loss due to pain and pain on use, specifically limitation of motion due to pain on use, including that experienced during flare ups. 38 C.F.R. § 4.40. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that § 4.59 applies to all forms of painful motion of joints, and not just to arthritis). Pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32, 4243 (2011) (holding that pain alone does not constitute functional loss and is just one fact to be considered when evaluating functional impairment). That said, 38 C.F.R. § 4.59 recognizes that painful motion is an important factor of disability. Joints that are painful, unstable, or misaligned, due to healed injury, are entitled to at least the minimum compensable rating for the joint. Id. 1. Entitlement to an initial rating in excess of 20 percent for limitation of abduction of the right hip 2. Entitlement to an initial rating in excess of 20 percent for limitation of abduction of the left hip The Veteran’s limitation of abduction of the right and left hips is rated under Diagnostic Code (DC) 5253. 38 C.F.R. § 4.71a, for impairment of the thigh. 38 C.F.R. § 4.71a. Under DC 5253, a limitation of rotation of the affected leg, which cannot toe-out more than 15 degrees, warrants a 10 percent rating. A limitation of adduction such that legs cannot be crossed warrants a 10 percent rating. A limitation of abduction such that motion is lost beyond 10 degrees warrants the highest 20 percent rating. Normal range of motion of the hip is from 0 to 125 degrees of flexion, 0 to 30 degrees of extension, 0 to 45 degrees of abduction, 0 to 25 degrees of adduction, 0 to 60 degrees for external rotation, and 0 to 40 degrees for internal rotation. See 38 C.F.R. § 4.71a., Plate II. On review of the record, the Board finds that the evidence weighs against a rating in excess of the currently assigned maximum 20 percent ratings. The Veteran underwent a VA medical examination in February 2010. The Veteran reported hip pain and decreased hip motion. As to both hips, the examiner noted abnormal and guarded movement. No signs of edema, instability, effusion, weakness, tenderness, redness, heat, deformity, malalignment, drainage, subluxation, or ankylosis were noted for either hip. Right hip adduction was noted to 25 degrees; pain was also noted at 25 degrees. Right hip abduction was noted at 23 degrees; pain was also noted at 23 degrees. There was no additional limitation of motion after repetitions on either adduction or abduction for the right side. Left hip adduction was noted to 16 degrees; pain was also noted at 16 degrees. Left hip abduction was noted to 24 degrees; pain was also noted at 24 degrees. There was no additional limitation of motion after repetitions on either adduction or abduction for the left side. The Veteran underwent a second VA examination in April 2014. The Veteran reported the condition had stayed the same, as well as pain on certain movements, positions and activities as to both hips; no flare-ups were reported. The examiner noted that right hip abduction was not lost beyond 10 degrees, adduction was not limited such that the Veteran could not cross his legs, and rotation was not limited such that the Veteran cannot toe-out more than 15 degrees. Left hip abduction was not lost beyond 10 degrees, adduction was not limited such that the Veteran could not cross his legs, and rotation was not limited such that the Veteran cannot toe-out more than 15 degrees. There was no additional limitation of motion after repetitions for either side. As for functional loss of both hips, the examiner noted less movement than normal, weakened movement and pain on movement. No ankylosis of either hip or other pertinent findings were noted. VA treatment records dated October 2014 note a full range of motion at the hip of both extremities, and that strength was intact against resistance to flexion and extension at the hips. A January 2015 VA treatment records noted no tenderness of the hips as well as a full range of motion. An August 2015 VA treatment record noted normal internal external rotation of the hips bilaterally. The veteran underwent a third VA examination in March 2016. The Veteran reported baseline pain with flare-ups up to four times per month; he also reported having difficulty donning shoes and socks due to limited extension, rotation and flexion. The examiner noted that the functional impact of the condition was such that it caused difficulty sitting for more than ten minutes and pain with standing for more than 30 to 60 minutes. For both the right and left sides, the examiner noted pain on flexion, abduction and external rotation; pain with weight-bearing; and tenderness over sacroiliac joints and the gluteal area. No crepitus was noted for either the right or left side. No ankylosis for either side or other pertinent findings were noted. Initial range of motion results were abnormal for both hips; there was no additional loss of function or range of motion after three repetitions for either hip. More specifically, right hip abduction was noted from 0 to 20 degrees. Right hip adduction was noted from 0 to 25 degrees. Adduction was not limited such that the Veteran could not cross his legs. Right hip external rotation was noted from 0 to 45 degrees; internal rotation was noted from 0 to 40 degrees. Left hip abduction was noted from 0 to 30 degrees; adduction was noted from 0 to 25 degrees. Left hip adduction was not limited such that the Veteran could not cross his legs. Left hip external rotation was noted from 0 to 45 degrees; internal rotation was noted from 0 to 40 degrees. The Veteran underwent a fourth VA examination in July 2016. The Veteran reported the condition had worsened and caused difficulty walking, moving and sleeping; he also reported flareups. For both the right and left sides, the examiner noted no pain on physical examination, pain on weight-bearing, or localized tenderness or pain. No crepitus was noted for either the right or left side. No ankylosis or other pertinent findings were noted. Initial range of motion results were abnormal for both hips; there was no additional loss of function or range of motion after three repetitions for either hip. Right hip abduction was from 0 to 40 degrees. Right rip adduction was noted from 0 to 25 degrees. External rotation was noted from 0 to 60 degrees; internal rotation was noted from 0 to 40 degrees. Adduction was not limited such that the Veteran could not cross his legs. Left hip abduction was noted from 0 to 30 degrees. Left hip adduction was noted from 0 to 25 degrees; adduction was not limited such that the Veteran could not cross his legs. Left hip external rotation was noted from 0 to 60 degrees; internal rotation was noted from zero to 40 degrees. VA treatment records from May 2018, November 2018 and June 2019 noted normal internal and external rotation of the hips bilaterally. The Veteran was scheduled to undergo a fifth VA examination in December 2019. The examiner noted that the Veteran reported believing that he had withdrawn the increased rating hip and thigh claims and requested cancelling the scheduled examination. The Veteran reported satisfaction with his current ratings and adamantly requested that they not be changed. The examiner complied with the Veteran’s request and did not undertake the examination. The Board notes that the Veteran is already in receipt of the maximum evaluation under DC 5253 and has been throughout the entire appellate period. The evidence of record is consistent with such evaluation. The February 2010 VA examiner noted right hip abduction to 23 degrees. Left hip abduction was noted to 24 degrees. The April 2014 VA examiner explicitly noted that, for both hips, abduction was not lost beyond 10 degrees, adduction was not limited such that the Veteran could not cross his legs, and rotation was not limited such that the Veteran cannot toe-out more than 15 degrees. The March 2016 VA examiner noted right hip abduction to 25 degrees; adduction was not limited such that the Veteran could not cross his legs. Left hip abduction was noted to 30 degrees; adduction was not limited such that the Veteran could not cross his legs. The July 2016 VA examiner noted right hip abduction to 40 degrees; adduction was not limited such that the Veteran could not cross his legs. Left hip abduction was noted to 30 degrees; adduction was not limited such that the Veteran could not cross his legs. The Board has considered whether the Veteran is entitled to a higher disability rating under alternative diagnostic codes. However, the evidence does not show the Veteran suffers from symptoms better represented by another diagnostic code. Thus, a higher rating under another diagnostic code is not warranted. The Board acknowledges the Veteran’s representative’s argument that, absent a withdrawal of the claim in writing, the Veteran should be granted another examination. See December 2020 appellate brief. The record demonstrates that an examination was scheduled, and the Veteran explicitly declined to undergo examination. The Board finds the Board has satisfied its duty to assist. See 38 U.S.C. § 5103A; Wood v. Derwinski, 1 Vet. App. 190 (1991). Neither the Veteran nor his representative has given any indication that were an examination to be scheduled, the Veteran would attend. As such, the Board does not find that a remand for further examination is necessary, as there is no indication that the additional delay to do so would actually avail the Veteran of any benefit, and the current evidence is adequate for adjudication. While the criteria for a withdrawal of an appeal have not been met, the Board also finds that the duty to assist has been met in light of the Veteran’s statements and informing VA in essence that another examination was unnecessary. The Board acknowledges the Veteran’s competent and credible reports of relevant observable symptoms, as set out in the VA treatment records and examinations. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, these lay statements are consistent with the assigned rating. To the extent that the Veteran believes that a higher rating is warranted, this belief is outweighed by the remaining evidence of record, as summarized above. As the Veteran is already in receipt of the maximum evaluation under DC 5253, there is no legal basis upon which to award an increased rating for limitation of abduction of each hip on a schedular basis. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Consequently, an increased rating for limitation of abduction is not warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to an initial compensable rating for limitation of extension of the right thigh 4. Entitlement to an initial compensable rating for limitation of extension of the left thigh The Veteran’s limitation of extension of the right and left thighs is rated under DC 5251. 38 C.F.R. § 4.71a. Under DC 5251, a single 10 percent rating is assigned for extension limited to 5 degrees. Normal extension of the hip is from 0 to 30 degrees. 38 C.F.R. § 4.71a, Plate II. On review of the record, the Board finds that the evidence weighs against a rating in excess of the currently assigned zero percent ratings. The Veteran underwent a VA medical examination in February 2010. The Veteran reported leg pain and limitations in walking. The examiner noted a stiff, rigid gait. Extension of the right thigh was noted to 28 degrees; pain was also noted at 28 degrees. There was no additional limitation of motion upon repetitions. Extension of the left thigh was noted to 18 degrees; pain was also noted at 18 degrees. There was no additional limitation of motion upon repetitions. The Veteran underwent a second VA examination in April 2014. Right hip extension was noted to be greater than 5 degrees; there was no objective evidence of painful motion. There was no additional limitation of motion upon repetitions. Left hip extension was noted to be greater than 5 degrees; there was no objective evidence of painful motion. There was no additional limitation of motion upon repetitions. The Veteran underwent a third VA examination in March 2016. Right hip extension was noted to 20 degrees. Left hip extension was noted to 20 degrees. The Veteran underwent a fourth VA examination in July 2016. Right hip extension was noted to 30 degrees. Left hip extension was noted to 30 degrees. The Board does not find that a higher disability rating is warranted. None of the VA examinations noted extension limited to 5 degrees for either right or left thighs. Where the exact degree of motion was explicitly recorded, the Veteran never manifested extension below 20 degrees. The Veteran was noted to have functional loss associated with his right and left hips and thighs, but the record does not indicate that his functional loss has reduced his extension to 5 degrees or less, which is required for the next higher rating. VA treatment records from October 2014 and January 2015 noted a full range of motion. Thus, the higher rating of 10 percent under DC 5251 is not warranted. The Board has acknowledged and addressed the Veteran’s representative’s argument for another VA examination, as discussed above. While the criteria for a withdrawal of an appeal have not been met, the Board also finds that the duty to assist has been met in light of the Veteran’s statements and informing VA in essence that another examination was unnecessary. The Board has considered whether the Veteran is entitled to a higher disability rating under alternative diagnostic codes. However, the evidence does not show the Veteran suffers from symptoms better represented by another diagnostic code. Thus, a higher rating under another diagnostic code is not warranted. The Board acknowledges the Veteran’s competent and credible reports of relevant observable symptoms, as set out in the VA treatment records and examinations. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, these lay statements are consistent with the assigned rating. To the extent that the Veteran believes that a higher rating is warranted, this belief is outweighed by the remaining evidence of record, as summarized above. In sum, the Board finds that a compensable disability rating is not warranted. To the extent that the Veteran contends entitlement to a higher rating, the preponderance of the evidence is against the claim; there is no reasonable doubt to be resolved; and any further increased rating is not warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 5. Entitlement to an initial compensable rating for limitation of flexion of the right thigh 6. Entitlement to an initial compensable rating for limitation of flexion of the left thigh The Veteran’s limitation of flexion of the right and left thighs is rated under DC 5252. 38 C.F.R. § 4.71a. Under DC 5252, a 10 percent rating is assigned for flexion limited to 45 degrees; 20 percent is assigned for flexion limited to 30 degrees; 30 percent is assigned for flexion limited to 20 degrees; and, 40 percent is assigned for flexion limited to 10 degrees. Normal flexion of the hip is from 0 to 125 degrees. 38 C.F.R. § 4.71a, Plate II. On review of the record, the Board finds that the evidence weighs against a rating in excess of the currently assigned zero percent ratings. The Veteran underwent a VA medical examination in February 2010. Flexion of the right thigh was noted to 75 degrees; pain was also noted at 75 degrees. There was no additional limitation of motion upon repetitions. Flexion of the left thigh was noted to 62 degrees; pain was also noted at 62 degrees. There was no additional limitation of motion upon repetitions. The Veteran underwent a second VA examination in April 2014. Right hip flexion was noted to 100 degrees; painful motion was also noted to begin at 100 degrees. There was no additional limitation of motion upon repetitions. Left hip flexion was noted to 100 degrees; painful motion was also noted to begin at 100 degrees. There was no additional limitation of motion upon repetitions. The Veteran underwent a third VA examination in March 2016. Right hip flexion was noted to 85 degrees. Left hip flexion was noted to 90 degrees. The Veteran underwent a fourth VA examination in July 2016. Right hip flexion was noted to 125 degrees. Left hip flexion was noted to 125 degrees. The Board does not find that a higher disability rating is warranted. None of the VA examinations noted flexion below 85 degrees. The Veteran was noted to have functional loss associated with his right and left hips and thighs, but the record does not indicate that his functional loss has reduced his flexion to 45 degrees or less, which is required for the next higher rating. VA treatment records from October 2014 and January 2015 noted a full range of motion. Thus, the higher ratings of 10, 20, 30, and 40 percent under DC 5252 are not warranted. The Board has acknowledged and addressed the Veteran’s representative’s argument for another VA examination, as discussed above. While the criteria for a withdrawal of an appeal have not been met, the Board also finds that the duty to assist has been met in light of the Veteran’s statements and informing VA in essence that another examination was unnecessary. The Board has considered whether the Veteran is entitled to a higher disability rating under alternative diagnostic codes. However, the evidence does not show the Veteran suffers from symptoms better represented by another diagnostic code. Thus, a higher rating under another diagnostic code is not warranted. The Board acknowledges the Veteran’s competent and credible reports of relevant observable symptoms, as set out in the VA treatment records and examinations. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, these lay statements are consistent with the assigned rating. To the extent that the Veteran believes that a higher rating is warranted, this belief is outweighed by the remaining evidence of record, as summarized above. In sum, the Board finds that a compensable disability rating is not warranted. To the extent that the Veteran contends entitlement to a higher rating, the preponderance of the evidence is against the claim; there is no reasonable doubt to be resolved; and any further increased rating is not warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Minaya, 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.