Citation Nr: 21006701 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 18-08 945 DATE: February 4, 2021 ORDER Entitlement to an initial rating greater than 10 percent for left hip limitation of flexion is denied. Entitlement to an initial compensable rating for left hip limitation of extension, exclusive of a period of an assigned temporary total rating from April 25, 2019 to June 30, 2019 is denied. FINDINGS OF FACT 1. The Veteran’s left hip flexion was not limited to 45 degrees even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups. 2. The Veteran’s left hip extension was not limited to 5 degrees. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating greater than 10 percent for left hip limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5252. 2. The criteria for entitlement to an initial compensable rating for left hip limitation of extension, exclusive of a period of an assigned temporary total rating from April 25, 2019 to June 30, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5251. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1994 to July 1995. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2017 rating decision. In October 2018 and September 2020, the Board remanded the issues on appeal in order to obtain a VA examination. The procedural history of the case is discussed in detail below. 1. Entitlement to an initial rating greater than 10 percent for left hip limitation of flexion 2. Entitlement to an initial compensable rating for left hip limitation of extension, exclusive of a period of an assigned temporary total rating from April 25, 2019 to June 30, 2019 The procedural history is as follows. On October 25, 2016, the Veteran filed a claim for service connection for a left hip disability. In an April 2017 rating decision, the RO granted a separate evaluation for left hip limitation of extension with an evaluation of 0 percent under Diagnostic Code (DC) 5251, and granted a separate evaluation for left hip limitation of flexion with an evaluation of 0 percent under DC 5252. In addition, the RO continued the 10 percent evaluation of residuals; left femur fracture under DC 5299-5255. In a December 2017 rating decision, the RO granted entitlement to a total temporary evaluation due to left hip arthroscopy necessitating convalesce under DC 5299-5255 from February 14, 2017. Thereafter, from April 1, 2017, the Veteran was rated 10 percent for thigh impairment pursuant to DC 5253. In October 2018, the Board remanded the issues of entitlement to an initial compensable rating for a left hip limitation of flexion and entitlement to an initial compensable rating for a left hip limitation of extension in order to provide the Veteran a more recent VA examination. In an August 2020 rating decision, the RO granted a temporary evaluation of 100 percent effective April 25, 2019 based on surgical or other treatment necessitating convalesce under DC 5251 for limitation of extension. Thereafter, from July 1, 2019, the Veteran was awarded a 10 percent evaluation under DC 5251 for left hip limitation of extension based on painful motion of the hip. The Veteran’s left hip limitation of flexion remained noncompensable. In September 2020, the Board remanded the Veteran’s increase rating claim for the Veteran’s hip in order to obtain an adequate VA examination. In a December 2020 rating decision, the RO granted a 10 percent evaluation for the Veteran’s left hip limitation of flexion from October 25, 2016 under DC 5252, and decreased the evaluation of left hip limitation of extension to 0 percent, effective July 1, 2019. The RO noted that the Veteran was assigned a 10 percent rating for limitation of flexion based on painful motion of the hip. Thus, the RO decreased the Veteran’s rating for left hip limitation of extension because it would create a pyramiding conflict. There was no overall decrease in the Veteran’s total combined disability rating. The Board finds that the December 2020 rating decision did not represent a reduction in rating, but rather a change in diagnostic code for rating purposes. The Board concludes that the issue on appeal relating to extension of the hip (DC 5251) is not a reduction, but instead is an increased rating claim for limitation of extension of the left hip. Therefore, the procedural and substantive requirements for a reduction do not apply and need not be addressed. In that same rating decision, the RO also stated that the increase of the Veteran’s left hip limitation of flexion constitutes a total grant of benefits sought. However, this does not constitute a full grant of all benefits possible, and the claim is still before the Board. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Turning to the facts in this case, the Veteran is seeking a higher rating for her service-connected left hip limitation of flexion and limitation of extension. DC 5251 affords a single 10 percent disability based on limitation of extension of the thigh when extension is limited to 5 degrees. 38 C.F.R. § 4.71a, DC 5251. DC 5252 compensates based on limitation of flexion of the thigh. Under the applicable rating criteria, a 10 percent rating is assigned for flexion limited to 45 degrees. Flexion limited to 30 degrees is afforded a 20 percent rating. Flexion limited to 20 degrees is afforded a 30 percent rating. Finally, a 40 percent rating is assigned for flexion of the thigh limited to 10 degrees. 38 C.F.R. § 4.71a, DC 5252. Impairment of the thigh, implying limitation of abduction, adduction or rotation, is compensated under DC 5253. Under the applicable rating criteria, limitation of abduction of the thigh, with motion lost beyond 10 percent, is afforded a 20 percent rating. Limitation of adduction of the thigh, implying an inability to cross the legs, is afforded a 10 percent rating. Limitation of rotation, described as an inability to toe-out more than 15 degrees in the affected leg, is afforded a 10 percent rating. 38 C.F.R. § 4.71a, DC 5253. To the extent that the Veteran has been assigned multiple ratings for her left hip disability at various times throughout the appeal period, the Board is cognizant that the assignment of multiple ratings based on the same symptoms or manifestations constitutes prohibited pyramiding. 38 C.F.R. § 4.14. However, here, the Board finds that the assignment of separate ratings based on limitation of extension, flexion, and adduction of the left hip under DC 5251, 5252, and 5253 would not amount to pyramiding under 38 C.F.R. § 4.14. In this regard, separate ratings under different diagnostic codes may be assigned where “none of the symptomatology for any of [the] conditions are duplicative of or overlapping with the symptomatology of the other... conditions.” Esteban v. Brown, 6 Vet. App. 259 (1994). Here this key consideration has been met, in that limitation of extension, flexion, and adduction concern excursions of movements in different planes, and these limitations therefore constitute different bases for rating the hip. 38 C.F.R. § 4.45. If these limitations are demonstrated, they must be rated separately to adequately compensate for functional loss associated with the service-connected left hip disability. Cf. VAOPGCPREC 9-2004 (providing that separate ratings may be assigned for disability of the same joint where Veteran has both limitation of flexion and limitation of extension of same leg); see also Yonek v. Shinseki, 722 F.3d 1355 (2013) (finding separate ratings are not warranted for limitation of motion in different planes of the shoulder because they are not warranted under the applicable diagnostic codes, but that diagnostic codes addressing joints other than the shoulder assign different codes to limitation of motion in different planes, or to limitation of motion in different directions within a single plane, for example, DCs 5252 and 5253 with regard to the thigh). Also applicable to the hip and thigh are DCs addressing ankylosis, flail joint, and impairment of the femur (nonunion, false joint, or malunion). 38 C.F.R. § 4.71a, DCs 5250, 5254, 5255. As is noted below, during the pendency of the appeal the Veteran does not show such pathology, and therefore, these DCs do not apply in this matter. Here, the Veteran submitted a private CT scan of the left hip that showed mild protuberance at the left femoral head/neck consistent with a cam deformity. The Veteran was afforded a VA examination in December 2016. The Veteran reported flare-ups of the hip or thigh and described her flare-ups as daily and lasting hours. The Veteran reported having functional loss or functional impairment. The Veteran stated that she has loss of standing and ambulation tolerance. The Veteran’s left hip flexion was from 0 to 100 degrees; extension was from 0 to 20 degrees; abduction was from 0 to 15 degrees; and adduction from 0 to 10 degrees. The examiner noted that the Veteran’s adduction was limited such that the Veteran cannot cross her legs. External rotation was from 0 to 20 degrees and internal rotation was from 0 to 15 degrees. The examiner reported that pain was noted on the examination and causes functional loss. The Veteran was able to perform repetitive use testing with at least three repetitions. No additional loss of function or range of motion was noted. With regards to whether pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over a period of time or with flare-ups, the examiner was unable to say without mere speculation. The examiner stated that all musculoskeletal disorders present in an individual could potentially cause functional limitation during repetitive use over a period of time. The examiner stated that if pain, weakness, fatigability, or incoordination are present, it could also significantly limit functional ability during a flare-up. The examiner was unable to describe the limitation in terms of degrees as the examiner noted the Veteran was not present during a flare-up. The examiner noted that the Veteran did not have ankylosis and did not have malunion or nonunion of femur, flail hip joint, or leg length discrepancy. In a September 2018 private treatment note, the Veteran complained of left hip pain that was exacerbated 5 months prior after suffering a fall. The Veteran stated that her pain is worse when she stands up from a sitting position. The Veteran was afforded a VA examination in January 2019. The Veteran reported flare-ups of the hip or thigh and noted that she has flare-ups with prolonged walking and standing. The Veteran reported not having functional loss or functional impairment. The Veteran’s left hip flexion was from 0 to 70 degrees; extension was from 0 to 20 degrees; abduction was from 0 to 30 degrees; and adduction from 0 to 15 degrees. The examiner noted that the Veteran’s adduction was not limited such that the Veteran cannot cross her legs. External rotation was from 0 to 60 degrees and internal rotation was from 0 to 40 degrees. The examiner reported that pain was noted on the examination but does not result in/cause functional loss. The Veteran was able to perform repetitive use testing with at least three repetitions. No additional loss of function or range of motion was noted. With regards to whether pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over a period of time or with flare-ups, the examiner was unable to say without mere speculation as the examiner noted the Veteran was not present during a flare-up. The examiner noted that the Veteran did not have ankylosis and did not have malunion or nonunion of femur, flail hip joint, or leg length discrepancy. In a September 2020 Board remand, the Board found that the January 2019 VA examination was inadequate as the examiner failed to provide an opinion, based on the Veteran’s lay statements and the other evidence of record, estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. Thus, the Veteran was afforded a VA examination in October 2020. The Veteran reported flare-ups of the hip or thigh and indicated that she experiences flare-ups with prolonged standing or sitting. The Veteran reported having functional loss or functional impairment. The Veteran stated that she has difficulty exiting a car or getting up from a seated position. The Veteran’s left hip flexion was from 0 to 65 degrees; extension was from 0 to 15 degrees; abduction was from 0 to 30 degrees; and adduction from 0 to 15 degrees. The examiner noted that the Veteran’s adduction was not limited such that the Veteran cannot cross her legs. External rotation was from 0 to 40 degrees and internal rotation was from 0 to 30 degrees. The examiner reported that pain was noted on the examination and causes functional loss. The Veteran was able to perform repetitive use testing with at least three repetitions. No additional loss of function or range of motion was noted. The examiner noted that pain significantly limits functional ability with repeated use over a period of time. In terms of range of motion, the examiner noted that the Veteran’s left hip flexion would be from 0 to 60 degrees; extension was from 0 to 10 degrees; abduction was from 0 to 25 degrees; and adduction from 0 to 10 degrees. The examiner reported that post-test adduction was not limited such that the Veteran cannot cross her legs. External rotation was from 0 to 35 degrees and internal rotation was from 0 to 25 degrees. The examiner noted that pain significantly limits functional ability with flare-ups In terms of range of motion, the examiner noted that the Veteran’s left hip flexion would be from 0 to 60 degrees; extension was from 0 to 10 degrees; abduction was from 0 to 25 degrees; and adduction from 0 to 10 degrees. The examiner reported that post-test adduction would not be limited such that the Veteran cannot cross her legs. External rotation would be from 0 to 35 degrees and internal rotation was from 0 to 25 degrees. The examiner noted that the Veteran did not have ankylosis and did not have malunion or nonunion of femur, flail hip joint, or leg length discrepancy. As noted above, DC 5251 governs limitation of extension of the thigh, and awards a 10 percent rating, the maximum under this code, for extension limited to five degrees. 38 C.F.R. § 4.71a, DC 5251. At the Veteran’s most recent VA examination in October 2020, the examiner indicated the Veteran had extension of her left hip to 15 degrees. Thus, the Veteran does not meet the functional impairment requirements for a rating of 10 percent under DC 5251. Even after repetitive use or during a flare-up, the examiner noted that extension of the left hip was limited to 10 degrees. In addition, examinations in December 2016 and January 2019 do not show that the Veteran’s left hip has resulted in limitation of extension limited to 5 degrees. The Veteran also cannot be awarded a rating on the bases of functional loss due to weakness, fatigability, swelling, incoordination, or pain on movement because, the agency of original jurisdiction granted a 10 percent rating under DC 5252 for painful motion of the left hip, for the entire period on appeal. Granting an additional rating under DC 5251 based on the same painful motion would constitute pyramiding. As noted above, DC 5252 governs limitation of flexion of the thigh, and awards a 10 percent rating for flexion that is limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5252. To qualify for a compensable rating for limitation of flexion based on functional limitation, the Veteran must have, at minimum, flexion limited to 45 degrees. At the most recent VA examination in October 2020, the examiner indicated the Veteran’s flexion was limited to 65 degrees. The examiner also noted that pain significantly limits functional ability with flare-ups and repetitive use. However, the examiner described the range of motion of flexion to be limited to 60 degrees, during a flare-up and after repetitive use. As a result, the Veteran does not meet the minimum requirements based on functional limitation under DC 5252. The Board has considered the provisions of 38 C.F.R. § 4.59, which states that a claimant is entitled to the minimum compensable rating for the joint for painful motion. However, the Veteran is already in receipt of a 10 percent rating for painful motion under DC 5252. Nor is a higher rating warranted for additional functional limitation of motion. The Board acknowledges the Veteran’s reports having hip pain and difficulty exiting a car or getting up from a seated position. However, pain itself does not rise to the level of functional loss applicable to the musculoskeletal system. Mitchell v. Shinseki. Physical examination of the Veteran indicated no additional limitation of motion that was commensurate with a higher rating. As such, a higher rating for additional limitation of motion is not warranted. See DeLuca v. Brown, 8 Vet. App. at 202. Based on the foregoing, the Board finds that a disability rating higher than 10 percent is not warranted. While the examiner noted that pain significantly limits functional ability with repetitive use and flare-ups, the Veteran’s described range of motion of flexion was noted to be 60 degrees. Thus, at no point pertinent to the appeal period was the Veteran’s flexion limited to 45 degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups. As noted above, DC 5253 governs impairment of the thigh, and awards a 10 percent rating for limitation of rotation of, cannot toe-out more than 15 degrees, the affected leg, or when adduction is limited such that legs cannot be crossed. 38 C.F.R. § 4.71a, DC 5253. A 20 percent rating is assigned for limitation of abduction of, motion lost beyond 10 degrees. Id. However, in this case, the Veteran is already in receipt of a 10 percent rating under DC 5253 and a higher rating in excess of 10 percent under DC 5253 is not warranted as the evidence does not show that the Veteran’s left hip has resulted in limitation of abduction beyond 10 degrees. The most recent VA examination in October 2020 specifically indicated that abduction was limited to 30 degrees and limited to 25 degrees with repetitive use and during flare-ups. In addition, examinations in December 2016 and January 2019 do not show that the Veteran’s left hip has resulted in limitation of abduction beyond 10 degrees. For these reasons, a rating in excess of 10 percent under DC 5253 has not been met or more nearly approximated. Also applicable to the hip and thigh are DCs addressing ankylosis, flail joint, and impairment of the femur (nonunion, false joint, or malunion). 38 C.F.R. § 4.71a, DCs 5250, 5254, 5255. As is noted, the Veteran does not show such pathology, and therefore, these DCs do not apply in this matter. The Board acknowledges the Veteran’s assertions that her left hip disability warrants higher ratings. The Board considered the Veteran’s reported symptoms in conjunction with the clinical findings of record and determines that higher and/or separate ratings for the left hip disability are not warranted at this time. The preponderance of the evidence is against evaluations higher than those assigned by the agency of original jurisdiction for the Veteran’s left hip limitation of flexion and left hip limitation of extension. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.D. 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.