Citation Nr: 21007017 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 13-11 532 DATE: February 8, 2021 ORDER An initial rating in excess of 10 percent prior to June 25, 2020, and in excess of 20 percent thereafter for limitation of adduction of the right hip is denied. The assignment of the separate rating for limitation of extension of the right hip, evaluated as noncompensably disabling from January 31, 2018, to June 25, 2020, and 10 percent thereafter is proper; the appeal is denied. The assignment of the separate rating for limitation of flexion of the right hip, evaluated as noncompensably disabling from January 31, 2018, to June 25, 2020, and 30 percent thereafter is proper; the appeal is denied. FINDINGS OF FACT 1. Prior to June 25, 2020, the Veteran’s right hip disability resulted in abduction of limited to, at most, 25 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. As of June 25, 2020, the Veteran has been assigned the maximum schedular rating for impairment of the thigh manifested by limitation of adduction, abduction, and rotation of the right hip. 3. Prior to January 31, 2018, the Veteran’s right hip disability did not result in limitation of extension or flexion such that separate ratings are warranted. 4. From January 31, 2018, to June 25, 2020, the Veteran’s extension of the right hip was limited to, at most, 10 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. 5. As of June 25, 2020, the Veteran has been assigned the maximum schedular rating for limitation of extension of the right hip. 6. From January 31, 2018, to June 25, 2020, the Veteran’s flexion of the right hip was limited to, at most, 60 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. 7. As of June 25, 2020, the Veteran’s flexion of the right hip was limited to, at most, 15 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. 8. For the entire appeal period, the Veteran’s right hip disability did not result in ankylosis of the hip, flail joint of the hip, or impairment of the femur. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent prior to June 25, 2020, and in excess of 20 percent thereafter for limitation of adduction of the right hip have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5253. 2. The assignment of the separate rating for limitation of extension of the right hip, evaluated as noncompensably disabling from January 31, 2018, to June 25, 2020, and 10 percent thereafter is proper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5251. 3. The assignment of the separate rating for limitation of flexion of the right hip, evaluated as noncompensably disabling from January 31, 2018, to June 25, 2020, and 30 percent thereafter is proper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 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 July 1982 to July 1986 and July 1992 to May 2008, to include service in Southeast Asia, and with additional service in the Army National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in May 2010 by a Department of Veterans Affairs (VA) Regional Office. In September 2015, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge concerning, in part, the issues on appeal. A transcript of the hearing is of record. In December 2015 and December 2017, the Board remanded the claim of entitlement to an increased rating for the Veteran’s service-connected right hip disability. An April 2018 rating decision granted, in pertinent part, separate noncompensable ratings for limitation of extension and limitation of flexion of the right hip as of January 31, 2018. In December 2018, the Board denied the claims on appeal, and the Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a September 2019 Joint Motion for Partial Remand (JMPR), the Court vacated the December 2018 Board decision with respect to the denials and remanded the issues to the Board. In April 2020 and October 2020, the Board remanded the issues on appeal for additional development pursuant to the September 2019 JMPR. While on remand, a rating decision issued in July 2020 awarded increased ratings of 20 percent, 10 percent, and 30 percent respectively, effective June 25, 2020. While the awards of 20 percent and 10 percent are the maximum schedular ratings available under the appropriate Diagnostic Codes based on limitation of abduction and extension, the Veteran has not subsequently limited his appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). The case now returns for further appellate review, and the Board has characterized the issues on appeal in light of the award of such increased ratings. The Board notes that, in October 2020, the Veteran was sent a letter indicating that he had elected an in-person hearing with a Veterans Law Judge and, in light of COVID 19, was encouraged to opt into a virtual hearing; however, such letter was sent in error as his Board hearing was previously held in September 2015 and he has not subsequently requested a second hearing. Quinn v. Wilkie, 31 Vet. App. 284 (2019); Cook v. Snyder, 28 Vet. App. 330 (2017). The Board notes that, since the issuance of the supplemental statement of the case in November 2020, additional evidence consisting of updated VA treatment records has been associated with the record. While the Veteran has not waived AOJ consideration of such evidence, there is no prejudice to him in the Board proceeding with a decision at the present time because such newly received evidence is irrelevant to the issue on appeal or contain findings duplicative to those previously considered by the AOJ. 38 C.F.R. § 20.1305(c). 1. Entitlement to an initial rating in excess of 10 percent prior to June 25, 2020, and in excess of 20 percent thereafter for limitation of adduction of the right hip. 2. Propriety of the assignment of the separate rating for limitation of extension of the right hip, evaluated as noncompensably disabling from January 31, 2018, to June 25, 2020, and 10 percent thereafter. 3. Propriety of the assignment of the separate rating for limitation of flexion of the right hip, evaluated as noncompensably disabling from January 31, 2018, to June 25, 2020, and 30 percent thereafter. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history, and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119, 126-7 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. 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. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the Court held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § 4.59 requires that “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.” Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the Diagnostic Code under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). The Veteran’s limitation of adduction of the right hip is evaluated as 10 percent disabling as of June 1, 2008, the date of service connection, and 20 percent disabling as of June 25, 2020, pursuant to Diagnostic Code 5253. 38 C.F.R. § 4.71a. As of January 31, 2018, the Veteran is also in receipt of separate noncompensable ratings for limitation of extension and flexion of the right hip, which were increased to 10 percent and 30 percent as of June 25, 2020, pursuant to Diagnostic Codes 5251 and 5252, respectively. Id. Here, the Board will review the entirety of the evidence with consideration of higher and/or additional separate ratings for the Veteran’s service-connected right hip disability. Normal range of hip motion is 125 degrees of flexion, 140 degrees of extension, and 45 degrees of abduction. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5251 provides that limitation of extension of the thigh to 5 degrees warrants a 10 percent rating. Diagnostic Code 5252 provides that limitation of flexion of the thigh to 45 degrees warrants a 10 percent rating. Flexion limited to 30 degrees warrants a 20 percent rating. Flexion limited to 20 degrees warrants a 30 percent rating and flexion limited to 10 degrees warrants a 40 percent rating. Diagnostic Code 5253 provides that impairment of the thigh resulting in limitation of rotation of the affected leg such that the veteran cannot toe-out more than 15 degrees warrants a 10 percent rating. Impairment of the thigh resulting in limitation of adduction and an inability to cross legs warrants a 10 percent rating. Impairment of the thigh resulting in limitation of abduction and motion lost beyond 10 degrees warrants a 20 percent rating. 38 C.F.R. § 4.71a. For the period prior to June 25, 2020, Diagnostic Code 5253 provides that, in order to assign a rating in excess of 10 percent based on impairment of the thigh, the evidence must demonstrate limitation of abduction with motion lost beyond ten degrees. However, medical examinations and treatment records dated in February 2008, January 2010, February 2016, and January 2018 reflects limitation of abduction to 45 degrees, 45 degrees, 35 degrees, and 25 degrees, respectively, 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 or flare-ups. Thus, such findings do not support the assignment of a rating in excess of 10 percent for limitation of adduction. The Veteran also asserts that his right hip disability warrants compensable ratings based on additional limited range of motion, specifically to include extension and flexion. As noted above, Diagnostic Codes 5251 and 5252 provide compensable ratings for limitation of extension and flexion are provided for extension limited to five degrees and flexion limited to 45 degrees, respectively. Medical records show that, prior to June 25, 2020, extension was limited to, at most, 10 degrees while flexion was limited to, at most, 60 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 or flare-ups. Thus, such findings do not support the assignment of compensable ratings for limitation of extension and flexion. Despite the fact that the Veteran does not meet the criteria for a compensable rating for limitation of extension or flexion, and his functional impairment resulting from pain and limited motion is already contemplated in his currently assigned 10 percent rating based on limitation of adduction, the AOJ granted separate noncompensable ratings for limitation of extension and flexion, effective January 31, 2018. In an April 2018 rating decision, the AOJ found the January 31, 2018, VA examination report is the first to demonstrate significant, limited functional ability with flare-ups and additional limitation of range of motion due to pain. Therefore, the separate noncompensable ratings assigned as of January 31, 2018, for limitation of extension and flexion were proper. However, in the September 2019 JMPR, the parties determined the Board erred in relying on the February 2016 and January 2018 examination reports, as neither opinion adequately described functional loss in terms of range of motion (ROM) during the Veteran’s reported flare-ups. Following the April 2020 Board remand, the Veteran underwent a VA examination on June 25, 2020, at which time initial ROM testing revealed flexion to 75 degrees, extension to 15 degrees, abduction to 30 degrees, adduction to 20 degrees, external rotation to 25 degrees, and internal rotation to 15 degrees without pain. Adduction was not limited such that the Veteran cannot cross his legs. There was no additional loss of ROM following repetitive use testing; however, following repeated use over time and during flare-ups, the examiner estimated that flexion would be limited to 15 degrees, extension would be limited to 4 degrees, abduction would be limited to 8 degrees, and adduction would be limited to 5 degrees, and external and internal rotation would be limited to 5 degrees, and adduction would be limited such that the Veteran cannot cross his legs. Based on such findings, the July 2020 rating decision awarded increased ratings of 20 percent for limitation of abduction of the thigh with motion lost beyond 10 degrees, 10 percent for limitation of extension to five degrees, and limitation of flexion to 15 degrees. However, as the June 2020 examiner did not provide the retrospective medical opinion addressing the findings pertinent to flare-ups from the February 2016 and January 2018 VA examinations, the case was remanded in October 2020 to obtain the requested opinion. Thereafter, in November 2020, a VA examiner reviewed the relevant examination findings and offered an addendum opinion. In this regard, he initially indicated that the very basis of attempting to describe the severity or ROM during a flare-up is speculative. He further indicated that the term “flare-up” is subjective as it means different things to different people. In this regard, the examiner noted that, at the February 2016 VA examination, the Veteran described such as “right hip may pop if he turns a certain way…going up and down stairs.” At the January 2018 VA examination, such were described as “almost every time he descends the stairs,” and, at the June 2020 VA examination, they were described as occurring two to three ties a day to three to four times a week “depends on movement” “precipitated by movement of the hip forward/back—twisting/ turning.” The examiner indicated that such statements reflected the Veteran’s interpretation of a flare-up as a description of where certain movement causes the pain to be worse. The examiner stated that he personally defined such term more in line with the VA, i.e., that a flare-up is unpredictable and without obvious reason (“some days it’s good, some days it’s bad”). Thus, the examiner found the very terminology of flare-up to be subjective and, as such, any ROM or severity estimation during a flare-up even more subjective. The examiner further explained that, as an emergency room physician, he had arguably seen more “flare-ups” when they are happening of chronic pain than other specialties. However, he reported that he had never seen a true “flare-up” of a musculoskeletal chronic hip condition (not including the sort of acute injury such as a MVC dislocation of a hip). However, he stated that he can understand that “flare-ups” exist in the form of the subjective perspective of the patient, which is the very nature of musculoskeletal pain, i.e., there are exacerbating movements. With respect to estimating the ROM during a flare-up, the examiner noted the additional limitation of ROM reported at the June 2020 VA examination, but indicated that such appeared to be pulled out of thin air. Nonetheless, he found that such appeared to convey the overall idea that, during flare-ups, the Veteran indicated that he could move very little. In regard to the examinations conducted in February 2016 and January 2018, the examiner observed that the examiners at such times were unable to describe the ROM during a flare-up. He indicated that the inability to provide ROM during a flare-up when not actually examining in flare-ups is true and accurate in medical practice. Nonetheless, the examiner found that, upon review of the record, there were no records that assessed the Veteran during a period of a flare-up and his X-rays over the years of his right hip were unremarkable. Thus, he indicated that his opinion of a flare-up is the natural increase and decrease of chronic pain in general and, at times, “some days are worse than other days.” The examiner stated that it is not the specific motion that causes the pain to increase, which is normal and typical of musculoskeletal joint pain. Ultimately, the examiner found that the Veteran did not have any significant degree of a true flare-up, and his ROM during “flare-ups” should be the same as the ROM when not in flare-up. Based on the foregoing, an initial rating in excess of 10 percent and in excess of 20 percent thereafter for limitation of adduction of the right hip under Diagnostic Code 5253 is not warranted. Specifically, as previously discussed, the record does not show that, prior to June 25, 2020, the Veteran had limitation of adduction with motion lost beyond 10 degrees. Rather, such was limited to, at most 25 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 or flare-ups, as addressed by the November 2020 VA examiner. Furthermore, as of June 25, 2020, the Veteran’s abduction was estimated to be limited to 8 degrees following repeated use over time and during flare-ups, which results in a 20 percent rating under Diagnostic Code 5253, which is the maximum schedular rating for impairment of the thigh manifested by limitation of adduction, abduction, and rotation of the right hip. Thus, higher ratings based on limitation of the thigh are not warranted for either period on appeal. Additionally, as discussed previously, prior to January 31, 2018, the Veteran’s right hip disability not result in limitation of extension or flexion such that separate ratings are warranted. Furthermore, from January 31, 2018, to June 25, 2020, his extension was limited to, at most, 10 degrees while flexion was limited to, at most, 60 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 or flare-ups as addressed by the November 2020 VA examiner. Also, as of June 25, 2020, the Veteran’s extension and flexion were estimated to be limited to 4 and 15 degrees, respectively, following repeated use over time and during flare-ups, which results in a 10 percent rating under Diagnostic Code 5251, which is the maximum schedular rating for limitation of extension, and a 30 percent rating under Diagnostic Code 5252. However, as the Veteran’s flexion is not shown to be further limited to 10 degrees, even in contemplation of such factors, a rating in excess of 30 percent under the latter Diagnostic Code is not warranted. Thus, the Board finds that the separately assigned ratings for the Veteran’s limitation of extension and flexion of the right hip are proper. The Board has also considered whether higher and/or separate ratings are warranted under any other applicable Diagnostic Code. However, as the medical evidence does not reflect ankylosis of the hip, flail joint of the hip, or impairment of the femur, higher and/or separate ratings are not warranted under Diagnostic Codes 5250, 5254, or 5255. 38 C.F.R. § 4.71a. In reaching its conclusions in the instant case, the Board acknowledges the Veteran’s belief that his right hip disabilities are more severe than as reflected by the current assigned disability ratings. In this regard, the Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that the Veteran is competent to describe his symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Ultimately, the Board finds the medical evidence in which professionals with specialized expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disabilities in light of the rating criteria to be more persuasive than his own reports regarding the severity of his disabilities. The Board has also considered whether additional staged ratings under Fenderson, supra, are appropriate for the Veteran’s service-connected right hip disabilities; however, the Board finds that his symptomatology has been stable throughout each period on appeal. Thus, assigning additional staged ratings for such disabilities is not warranted. Furthermore, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the initial rating claims adjudicated herein. Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Therefore, an initial rating excess of 10 percent prior to June 25, 2020, and in excess of 20 percent thereafter for limitation of adduction is not warranted. Further, the assignment of the separate rating for limitation of extension of the right hip, evaluated as noncompensably disabling from January 31, 2018, to June 25, 2020, and 10 percent thereafter and the separate rating for limitation of flexion of the right hip, evaluated as noncompensably disabling from January 31, 2018, to June 25, 2020, and 30 percent thereafter are proper. Consequently, the Board finds that higher or additional ratings for the Veteran's right hip disability is not warranted. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s initial rating claim, such doctrine is inapplicable in the instant appeal and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. M. Kelly, 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.