Citation Nr: 21006793 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 17-52 908 DATE: February 5, 2021 ORDER Entitlement to a compensable disability rating for limitation of flexion of the right thigh prior to December 10, 2019, is denied. Entitlement to a disability rating in excess of 20 percent for limitation of flexion of the right thigh since December 10, 2019, is denied. Entitlement to a disability rating in excess of 10 percent for degenerative arthritis of the right hip is denied. Entitlement to a 10 percent disability rating, and no higher, for limitation of rotation of the right thigh prior to December 10, 2019, is granted. Entitlement to a disability rating in excess of 20 percent for limitation of rotation of the right thigh since December 10, 2019, is denied. FINDINGS OF FACT 1. Prior to December 10, 2019, the Veteran had 100 degrees of flexion of the right hip and thigh. 2. As of December 10, 2019, the Veteran has had limitation of flexion of the right hip and thigh to 30 degrees. 3. The Veteran is shown to have noncompensable limitation of extension due to painful motion and objective findings of bursitis in the right hip. Limitation of abduction to 10 degrees or less has not been shown prior to December 10, 2019. 4. The evidence shows that prior to December 10, 2019, the Veteran’s limitation of rotation of the right hip was sufficient that he was unable to cross his legs. 5. The evidence as of December 10, 2019, shows that the Veteran has limitation of abduction of the right thigh to 10 degrees. CONCLUSIONS OF LAW 1. The criteria for entitlement to a compensable disability rating for limitation of flexion of the right thigh prior to December 10, 2019, 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. 2. The criteria for entitlement to a disability rating in excess of 20 percent for limitation of flexion of the right thigh since December 10, 2019, 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 entitlement to a disability rating in excess of 10 percent for degenerative arthritis of the right hip have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5003 and 5251. 4. The criteria for entitlement to a 10 percent disability rating, and no higher, for limitation of rotation of the right thigh prior to December 10, 2019, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5253. 5. The criteria for entitlement to a disability rating in excess of 20 percent for limitation of rotation of the right thigh since December 10, 2019, 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 had active duty military service from January 1962 to January 1965. Increased Rating Disability ratings are determined by applying the criteria established in VA’s Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.20. When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly 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 remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3. Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). 1. Entitlement to a compensable disability rating for right thigh limitation of flexion prior to December 10, 2019 2. Entitlement to a disability rating in excess of 20 percent for right thigh limitation of flexion since December 10, 2019 The Veteran is service connected for a disability impacting his right hip and thigh, which includes a noncompensable disability rating for limitation of flexion. A noncompensable (0 percent) disability rating is assigned prior to December 10, 2019, and a 20 percent rating is assigned thereafter. The Veteran seeks higher disability ratings for both time periods. Under Diagnostic Code 5252, a 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 20 degrees. A maximum 40 percent rating is warranted for flexion limited to 10 degrees. Limitation of flexion which includes range of motion in excess of 45 degrees is considered noncompensable or 0 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5252. 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 notes that the Veteran has been assigned a 10 percent disability rating for painful motion with evidence of bursitis, as addressed below. Prior to December 10, 2019, the Veteran has not been shown to have compensable limitation of flexion of the right hip. Specifically, at the February 2015 VA examination, he had flexion to 100 degrees, more than double the 45 degrees required for a 10 percent disability rating. (See CAPRI, 02/11/2015.) Moreover, there was no change with repetitive motion. The Board acknowledges the Veteran testimony at the Board hearing in April 2019 to the effect that the VA examiner had not used a goniometer in assessing range of motion. (See Hearing Transcript, 04/29/2019.) However, the Board does not consider it likely or plausible that an estimated range of motion without a goniometer would reflect a broad enough divergence that a compensable rating would have been more appropriate. Therefore, a higher disability rating for that time period is not warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5252. At the December 10, 2019 VA examination, the Veteran’s range of motion reflected a significant worsening of his right hip and thigh disability. (See C&P Exam, 12/10/2019.) Specifically, right hip flexion was limited to 30 degrees of motion, which warranted the assignment of a 20 percent disability rating. A still higher disability rating, however, was not warranted, as limitation of flexion to 20 degrees or less was not shown. Moreover, a goniometer was used to obtain the measurements at this examination and the examiner expressed confidence in the accuracy of the measurements despite the complications of the Veteran’s Parkinson’s disease on his movements. In addition, while the Veteran reported pain flare-ups with activity, which resulted in increased difficulty with prolonged sitting, standing, or walking, there was no evidence of decreased range of motion after repetitive motion. Pain flare-ups were alleviated by changing position or laying down. The VA examiner was unable to provide an opinion on the functional impacts of pain flare-ups because of the complicating factors of severe back pain from a non-service-connected disability and rigidity resulting from Parkinson’s disease. There was, however, no difference in range of motion testing between active and passive motion. The Veteran also had significantly restricted range of motion in his left hip because of Parkinson’s disease, although it was not as restricted as in the right hip. Therefore, the Board finds that the VA examination was compliant with the requirements of Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). In sum, the Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for limitation of flexion of the right hip and thigh. The Board acknowledges the Veteran’s lay reports of symptoms, specifically pain, and that there was functional loss due to pain, especially during flare-ups or repetitive use over time. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reported by the Veteran at the VA examination would not result in a disability picture more nearly approximating flexion limited to 20 degrees. 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). Such other ratings as are relevant are addressed below. 3. Entitlement to a disability rating in excess of 10 percent for degenerative arthritis of the right hip The Veteran is also service connected for degenerative arthritis of the right hip, which is rated as 10 percent disabling based on findings of bursitis on MRI in 2013, in accordance with Diagnostic Code 5003. Under Diagnostic Code 5010, arthritis due to trauma substantiated by objective diagnostic testing such as MRI or X-ray findings is rated under Diagnostic Code 5003 as degenerative arthritis. Under Diagnostic Code 5003, degenerative arthritis established by such findings is rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. When there is some limitation of motion of the specific joint that is noncompensable under the appropriate diagnostic codes, a rating of 10 percent for each such major joint affected by limitation of motion is assigned. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. The assigned rating also incorporates the rating criteria for Diagnostic Code 5251, based on limitation of extension. The criteria require limitation of extension to 5 degrees for assignment of a 10 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5251. In this instance, the Veteran is assigned the 10 percent rating based on the objective findings of bursitis or other degenerative changes. The evidence of record does not show that the Veteran has ever had a compensable limitation of extension. Specifically, at the VA examination in February 2015, extension was 25 degrees. (See CAPRI, 02/11/2015.) At the VA examination in December 2019, which reflected a significant downward change in all ranges of motion, the Veteran still had 10 degrees of extension, which exceeds the 5 degrees required for a compensable rating. Notably, the rating criteria do not provide for a disability rating higher than 10 percent for limitation of extension. The Veteran already has separate compensable ratings assigned for the other types of limitation of motion which are included in the rating schedule for the hip and thigh. As such, there is no basis for a higher disability rating for the right hip and thigh. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, and 5251. 4. Entitlement to a compensable disability rating for right thigh limitation of rotation prior to December 10, 2019 5. Entitlement to a disability rating in excess of 20 percent for right thigh limitation of rotation since December 10, 2019 The Veteran’s right thigh disability is also rated under 38 C.F.R. § 4.71a, Diagnostic Code 5253, for impairment of the thigh. 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. 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 considerations related to painful motion and 38 C.F.R. § 4.59 are addressed by the 10 percent disability rating assigned for right hip arthritis or limitation of extension as discussed above. For the rating period prior to December 10, 2019, the evidence includes a VA examination in February 2015, testimony at the April 2019 Board hearing, and a VA examination in December 2019. At the February 2015 VA examination, the Veteran had external rotation to 50 degrees, abduction to 45 degrees, and was unable to cross his legs. (See CAPRI, 02/04/2015.) At the Board hearing, the Veteran testified that he was unhappy with the VA examination and that the examiner had not used a goniometer to measure the range of motion. (See Hearing Transcript, 04/29/2019.) At the December 2019 VA examination, the examiner stated that he understood why a goniometer had not been used in the past, as the Veteran’s Parkinson’s disease impacted the accuracy of such measurements. (See C&P Examination, 12/10/2019.) However, the examiner was able to use a goniometer for the examination and expressed confidence in the accuracy in light of the Veteran’s patient cooperation. Range of motion was measured as external rotation to 10 degrees and abduction to 10 degrees; the Veteran was unable to cross his legs. Based on the evidence of record, the Board finds that a 10 percent disability rating for limitation of motion in the right hip and thigh prior to December 10, 2019 is appropriate. The 10 percent rating is assigned based on the Veteran’s inability to cross his legs, as noted in the February 2015 VA examination. A higher disability rating prior to December 10, 2019, is not warranted as the Veteran’s range of motion, abduction of 25 degrees and external rotation of 50 degrees, were both in excess of the range required for even a 10 percent rating. In conclusion, the Board finds that the preponderance of the evidence warrants assignment of a 10 percent rating, and no higher, for limitation of abduction or external rotation in the right hip and thigh prior to December 10, 2019. 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. For the period since December 10, 2019, the Veteran has been assigned a 20 percent disability rating, the highest possible schedular rating under this Diagnostic Code. As there is no evidence or argument showing that the Veteran’s disability picture regarding limitation of abduction of the right thigh is unique and not contemplated by the schedular rating criteria, the Board finds that there is no basis to award a higher rating, including on referral for extraschedular consideration. 38 C.F.R. § 4.71a, Diagnostic Code 5253. The Board has also considered the other diagnostic codes pertaining to the hip and thigh as discussed above. 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 that no additional disability ratings for the right hip and thigh, beyond those discussed in this decision, are warranted. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Cheryl E. Handy 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.