Citation Nr: 21007961 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 09-31 300 DATE: February 11, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for limitation of flexion of the right hip as a residual of pelvic fracture is denied. Entitlement to a disability rating in excess of 10 percent for limitation of flexion of the left hip as a residual of pelvic fracture is denied. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s limitation of flexion of the right hip as a residual of pelvic fracture was manifested by painful motion, but not limitation of thigh flexion to 45 degrees, limitation of thigh extension to 5 degrees, ankylosis, limitation of abduction with motion lost beyond 10 degrees, limitation of adduction with inability to cross the legs, limitation of rotation with inability to toe-out more than 15 degrees, a flail hip joint, or fracture or malunion of the femur. 2. Throughout the period on appeal, the Veteran’s limitation of flexion of the left hip as a residual of pelvic fracture was manifested by painful motion, but not limitation of thigh flexion to 45 degrees, limitation of thigh extension to 5 degrees, ankylosis, limitation of abduction with motion lost beyond 10 degrees, limitation of adduction with inability to cross the legs, limitation of rotation with inability to toe-out more than 15 degrees, a flail hip joint, or fracture or malunion of the femur. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for limitation of flexion of the right hip as a residual of pelvic fracture have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5252, 4.73, Diagnostic Code 5312 (2020). 2. The criteria for a rating in excess of 10 percent for limitation of flexion of the left hip as a residual of pelvic fracture have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5252, 4.73, Diagnostic Code 5312. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Air Force from October 2006 to July 2007. These matters are on appeal from a February 2008 rating decision. In a March 2014 decision, the Board remanded these issues to attempt to obtain additional records and afford the Veteran an additional VA examination. The Agency of Original Jurisdiction (AOJ) has done so. The Board granted separate 10 percent ratings for residuals of pelvic fractures of each hip in a July 2016 decision. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2017 memorandum decision, the Court vacated the Board’s decision and remanded the case to the Board for additional development. In a September 2020 decision, the Board remanded the issues being decided below to attempt to obtain additional records and to afford the Veteran an additional VA examination.  The Agency of Original Jurisdiction (AOJ) has done so. The November 2020 VA examination for hip and thigh conditions is adequate because it was based upon consideration of the Veteran’s pertinent medical history, his lay assertions and current complaints, and because it described his left and right hip in detail sufficient to allow the Board to make fully informed determinations.  The remand directed the examiner to address flare-ups and provide an estimate of range of motion during a flare-up and this was done. The examiner specifically found that during a flare-up, the range of motion would not change. The remand directed the examiner to test active and passive motion and discuss whether there was pain with weight bearing and non weight bearing. This was done. There was therefore substantial compliance with the remand directives.  See Stegall v. West, 11 Vet. App. 268 (1998).  Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist with regard to the issues being decided below.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating 1. Limitation of Flexion of the Right Hip as a Residual of Pelvic Fracture 2. Limitation of Flexion of the Left Hip as a Residual of Pelvic Fracture The Veteran contends that her residuals of a pelvic fracture warrant higher ratings than those currently assigned. They are currently rated under 38 C.F.R. § 4.73, Diagnostic Code 5312, for injury to Muscle Group XII, with a 10 percent rating for each hip on and after July 3, 2007. The full period of service connection is on appeal. Any change in Diagnostic Code must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Diagnostic Code 5312 appears to have been assigned in error. The Veteran’s pelvic fracture was initially rated under 38 C.F.R. § 4.71a, Diagnostic Code 5010 (2020), for traumatic arthritis, with a single 10 percent rating. In its July 2016 decision granting separate 10 percent ratings for each hip, the Board listed Diagnostic Code 5312 but otherwise did not discuss that Diagnostic Code, instead focusing its discussion on the Diagnostic Codes pertinent to limitation of motion of the musculoskeletal system. Because, in the same decision, the Board remanded the issue of entitlement to a separate compensable rating for a muscle group injury, the Board finds that this likely represents a typographical error. In its September 2020 decision, which was not appealed, the Board found that a separate compensable rating for a muscle group injury was not warranted. The Board concludes that the Veteran’s limitation of flexion of the right and left hips as residuals of pelvic fracture is more closely analogous to limitation of flexion of the thigh, which is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5252. Service connection for a disability is not severed when the Diagnostic Code associated with it is changed to more accurately determine the benefit to which a veteran may be entitled. Read v. Shinseki, 651 F.3d 1296, 1302 (Fed. Cir. 2011). The change in Diagnostic Code is not improper because the criteria set forth in Diagnostic Code 5252 are more accurate to the nature of the Veteran’s disability and do not result in a reduction in benefits. The Board also finds that there are no other Diagnostic Codes to which the Veteran’s right and left hip symptoms would be more closely analogous than Diagnostic Code 5252 that would result in a higher rating. 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 (2020). 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. “Staged” ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Given the nature of the present claims for higher initial evaluations, the Board has considered all evidence of severity since the effective dates for the awards of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). 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. In determining the appropriate rating for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Factors of joint disability include increased or limited motion, weakened movement, excess fatigability, incoordination, and painful movement, including during flare-ups and after repeated use. DeLuca v. Brown, 8 Vet. App. 202, 206-08 (1995); 38 C.F.R. § 4.45. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40. Additionally, “pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system.” Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Pain in a particular joint 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.; 38 C.F.R. § 4.40. Under 38 C.F.R. § 4.59, painful joints are entitled to at least the minimum compensable rating for the joint. In this case, at least the minimum compensable ratings have been in effect during the entire appeal period. 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.”). Limitation of flexion of a thigh is evaluated as follows: flexion limited to 10 degrees (40 percent); flexion limited to 20 degrees (30 percent); flexion limited to 30 degrees (20 percent); and flexion limited to 45 degrees (10 percent). 38 C.F.R. § 4.71a, Diagnostic Code 5252. Under 38 C.F.R. § 4.71a, Diagnostic Code 5251 (2020), a 10 percent rating is warranted for extension limited to 5 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5251. For VA purposes, a normal range of hip motion is from 0 degrees of thigh extension to 125 degrees of thigh flexion and from 0 to 45 degrees of abduction. 38 C.F.R. § 4.71, Plate II. Impairment of a thigh is evaluated as follows: limitation of abduction with motion lost beyond 10 degrees (20 percent); limitation of adduction without the ability to cross legs (10 percent); and limitation of rotation without the ability to toe-out more than 15 degrees (10 percent). 38 C.F.R. § 4.71a, Diagnostic Code 5253 (2020). There are additional Diagnostic Codes that apply to hip disorders: Diagnostic Code 5250 pertains to ankylosis of the hip, Diagnostic Code 5254 pertains to a flail joint of the hip, and Diagnostic Code 5255 pertains to impairment of the femur, whether from fracture or malunion. The Veteran was afforded a VA examination in November 2007. With regard to the functional impact of flare ups, the clinician found that there was no additional loss of motion during a flare up but then clarified that, by this, they meant that they “cannot offer info as to additional LOM during a flare up” as they “have not witnessed a flare up.” The Court has held that there must be an adequate rationale for declining to provide an opinion with regard to the functional impact of flare ups and has specifically found that the rationale that an opinion is not possible without directly observing a flare up is inadequate. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board therefore finds that the November 2007 examination report is inadequate for rating purposes and of no probative value; it will play no role in the Board’s analysis. The Veteran was afforded an additional VA examination in May 2014. Because, as the Board noted in its September 2020 decision, the Court found this examination report inadequate in its December 2017 memorandum decision, this examination report is also of no probative value and will play no role in the Board’s analysis. The Veteran was afforded an additional VA examination in November 2020. The clinician diagnosed residuals of an iliac wing fracture into the left sacroiliac joint, a nondisplaced right anterior acetabular fracture, and a displaced right inferior ramus fracture. The Veteran reported that she cannot sleep on her sides, that her pelvis gets numb, that she has pain in both hips, that her balance and posture are off, and that she has muscle spasms at night in which her legs freeze up. The Veteran did not report any flare ups, but reported functional impairment in the form of difficulty with balance and inability to run due to back and hip pain. On examination, range of motion of the right hip was reported as 96 degrees of flexion, 10 degrees of extension, 28 degrees of abduction, 25 degrees of adduction, 50 degrees of external rotation, and 17 degrees of internal rotation. Adduction was not limited such that the Veteran could not cross her legs. The range of motion itself contributed to functional loss in its effect on balance, walking, bending forward at the hips, and running. There was objective evidence of painful motion on all of these ranges and it resulted in functional loss. There was objective evidence of moderate ischial sacral tenderness or pain on palpation. There was evidence of pain with weight bearing, but no objective evidence of crepitus. Range of motion of the left hip was reported as 90 degrees of flexion, 14 degrees of extension, 35 degrees of abduction, 18 degrees of adduction, 40 degrees of external rotation, and 27 degrees of internal rotation. Adduction was not limited such that the Veteran could not cross her legs. The range of motion itself contributed to functional loss in its effect on balance, walking, bending forward at the hips, and running. There was objective evidence of painful motion on all of these ranges and it resulted in functional loss. There was objective evidence of moderate ischial sacral tenderness or pain on palpation. There was evidence of pain with weight bearing, but no objective evidence of crepitus. On repetition, range of motion of the right hip was reported as limited by pain as follows: 96 degrees of flexion, 7 degrees of extension, 22 degrees of abduction, 25 degrees of adduction, 50 degrees of external rotation, and 17 degrees of internal rotation. Range of motion of the left hip was reported as limited by pain as follows: 90 degrees of flexion, 14 degrees of extension, 30 degrees of abduction, 18 degrees of adduction, 40 degrees of external rotation, and 27 degrees of internal rotation. Adduction was not limited in either hip such that the Veteran could not cross her legs. Although the examination did not take place immediately after repetitive use over time or during a flare up, the clinician specifically found that ranges of motion under those circumstances would be the same as those listed above for limitation by pain. The examiner concluded flexion would remain 96 degrees, extension to 7 degrees, abduction to 22 degrees, adduction to 25 degrees, external rotation to 50 degrees, and internal rotation to 17 degrees for the right hip. The examiner concluded that flexion would remain 90 degrees, extension to 14 degrees, abduction to 30 degrees, adduction to 18 degrees, external rotation to 40 degrees, and internal rotation to 27 degrees. The clinician noted functional loss in both hips due to decreased movement and instability of station, as well as difficulty with balance, walking, bending forward at the hips, and running. The strength of each hip was normal and there was no muscle atrophy. There was no ankylosis, malunion or nonunion of the femur, flail hip joint, or leg length discrepancy. The Veteran reported using no assistive devices for her hips. Imaging studies did not document degenerative or traumatic arthritis in either hip. The clinician found that the Veteran’s hip disabilities had an impact on her ability to work by limiting prolonged sitting or standing, lifting heavy objects or moving swiftly, running, or bending. Based on the evidence described above, the Board finds that the Veteran’s limitation of flexion of the hips as residuals of pelvic fracture does not warrant a rating in excess of 10 percent for each hip at any point during the period on appeal. There is no evidence of ankylosis, limitation of flexion of the thigh to at least 45 degrees, limitation of extension of the thigh to 5 degrees, a compensable limitation of abduction, adduction, or rotation of the thigh, a flail joint of the hip, or impairment of the femur. Because the Board considered the applicable ratings under every Diagnostic Code pertaining to musculoskeletal disabilities of the hip, the Board finds that there are no other potentially applicable Diagnostic Codes by which a higher rating can be assigned. The Board has considered the Veteran’s lay statements. The Veteran is competent to report her own observations with regard to the symptoms of her hip disabilities. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, nothing in the Veteran’s statements is incompatible with a 10 percent rating for either hip. In addition, the Board considered whether a higher rating is warranted under the regulations relating to additional functional loss due to pain, weakness, fatigability, incoordination, and other factors under DeLuca, 8 Vet. App. at 204-07; 38 C.F.R. §§ 4.40, 4.45. There is no evidence that these factors cause a level of functional impairment equivalent to the criteria for a higher rating under any Diagnostic Code pertaining to musculoskeletal disabilities of the hip. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ryan Frank, 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.