Citation Nr: 21008880 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 13-13 562 DATE: February 18, 2021 ORDER A rating in excess of 10 percent for right hip bursitis is denied. From February 19, 2019 onwards, a 10 percent rating for right hip bursitis with limitation of extension is granted. FINDINGS OF FACT 1. The preponderance of the evidence indicates that the Veteran has not been diagnosed with malunion of the femur during the relevant period. 2. From February 2019 onwards, the Veteran’s right thigh has demonstrated limitation of extension to 5 degrees after repetitive motion and during flare-ups. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for right hip bursitis is denied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5255 (under the rating criteria in effect prior to February 7, 2021). 2. The criteria for a 10 percent rating for limitation of extension of the right thigh have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5251. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1988 to August 1999. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the case for further development in April 2015, May 2017, February 2018 and January 2020. The January 2020 Board remand mandated that the Veteran be afforded a new VA examination in connection with her increased rating claim for right hip bursitis in addition to requiring that her right knee symptoms be assessed as potentially warranting a separate rating. Since this development was mandated, the Veteran has been service-connected for a separate right knee disability as secondary to right hip bursitis. Accordingly, The Board finds that there has been substantial compliance with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board’s remand directives is required under Stegall). Increased ratings for right hip bursitis Legal Criteria Disability ratings are determined by applying the criteria set forth in the schedule of ratings. The percentage ratings are based on the average impairment of earning capacity, and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When a question arises as to which of two ratings apply under a single diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. As such, the Board must consider all potentially applicable diagnostic codes when rating a Veteran’s disability. However, evaluation of the same manifestation of the same disability under various diagnoses, otherwise known as “pyramiding” is to be avoided. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. When evaluating musculoskeletal disabilities based on limitation of motion, the Veteran is entitled to at least the minimum compensable evaluation if motion is accompanied by painful motion with joints. The joints involved should be tested for pain on both active and passive motion, in weight bearing and non-weight bearing and, if possible, with the range of the opposite undamaged joint. See 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). Additionally, pain is also relevant to assignment of a rating in excess of the minimum compensable rating, but only if that pain results in demonstrated functional impairment. Mitchell, 25 Vet. App. at 3738; see 38 C.F.R. §§ 4.40, 4.45. Functional impairment as contemplated by 38 C.F.R. §§ 4.40 and 4.45 includes 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). Joint pain alone, without evidence of decreased functional ability, does not warrant a higher rating. See generally Mitchell, 25 Vet. App. 32 Moreover, the Board must consider functional loss caused by pain or other factors listed in 38 C.F.R. §§ 4.40 and 4.45 that could occur during flare-ups or after repeated use and, therefore, may not be reflected on range-of-motion testing. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, despite the relevance of the background factors delineated in §§ 4.40 or 4.45 when evaluating a disability, the rating to be assigned is based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); therefore, a separate or higher rating predicated solely on §§ 4.40 or 4.45 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 [or § 4.73] criteria.”). DC 5019 directs VA to rate bursitis based on limitation of motion of the affected parts, as degenerative arthritis. Under DC 5003, degenerative arthritis, established by X-ray findings, will be rated on the basis of limitation of motion under the appropriate DCs for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate DCs, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. Id. Each hip is considered a major joint. 38 C.F.R. § 4.45 (f). Ratings for the Veteran’s right hip bursitis are assigned under sections of the rating schedule applicable to the hip and thigh. 38 C.F.R. § 4.71a, DC 5250-5255. Under 38 C.F.R. § 4.71a, DC 5250, favorable ankylosis of the hip, in flexion at an angle between 20 and 40 degrees, with slight adduction or abduction, warrants a 60 percent rating; while evidence of intermediate ankylosis of the hip warrants a 70 percent rating under the same diagnostic code. Evidence of extremely unfavorable ankylosis of the hip, with the foot not reaching the ground and requiring the use of crutches, warrants a 90 percent maximum rating and entitlement to SMC. 38 C.F.R. § § 4.71a, DC 5250. Under 38 C.F.R. § 4.71a, DC 5251, a 10 percent rating is assigned for extension of the thigh limited to 5 degrees. Under 38 C.F.R. § 4.71a , DC 5252, a 10 percent rating is assigned for flexion of the thigh limited to 45 degrees; a 20 percent rating is assigned for flexion limited to 30 degrees, a 30 percent rating is assigned for flexion limited to 20 degrees, and a 40 percent rating is assigned for flexion limited to 10 degrees. Under 38 C.F.R. § 4.71a , DC 5253, a 10 percent rating is assigned for limitation of rotation of the thigh, where the affected leg cannot toe-out more than 15 degrees; a 10 percent rating is assigned for limitation of abduction, cannot cross legs; and a 20 percent rating is assigned for limitation of abduction, motion lost beyond 10 degrees. A flail joint of the hip warrants an 80 percent rating under DC 5254. 38 C.F.R. §§ 4.71a. With respect to DC 5255, during the pendency of the appeal, the rating criteria (including DC 5255) for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised Diagnostic Codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021, and the criteria that is more favorable to the Veteran will be applied. Under the revised rating criteria for DC 5255 effective February 7, 2021, impairment of the femur warrants a 60 percent for fracture of the shaft or anatomical neck with nonunion, without loose motion, weightbearing preserved with aid of brace; and the highest rating of 80 percent is warranted for fracture of shaft or anatomical neck with nonunion, with loose motion (spiral or oblique fracture). Malunion is to be evaluated under DCs 5256, 5257, 5260, or 5261 for the knee, or 5250–5254 for the hip, whichever results in the highest evaluation. Under the rating criteria for DC 5255 in effect prior to February 7, 2021, a 10 percent rating is warranted for malunion with slight knee or hip disability; a 20 percent rating is warranted for malunion with moderate knee or hip disability; a 30 percent rating is warranted for malunion with marked knee or hip disability; a 60 percent rating is warranted for fracture of surgical neck of, with false joint; a 60 percent rating is warranted for fracture of shaft or anatomical neck with nonunion, without loose motion, weightbearing preserved with aid of brace; and the highest rating of 80 percent is warranted for fracture of shaft or anatomical neck with nonunion, with loose motion (spiral or oblique fracture). See 38 C.F.R. § 4.71a, DC 5255. Factual Background & Analysis The Veteran seeks higher ratings for her service-connected right hip bursitis. Currently, her right hip bursitis is assigned a 10 percent disability rating under DC 5019-5255, a 0 percent rating for limitation of flexion of the right thigh and a 0 percent rating for limitation of extension of the right thigh. On September 2012 VA examination the Veteran described her hip pain as sharp on the right side, daily and constant. Initial range of motion (ROM) testing documents right hip flexion to 125 degrees or greater, no abduction lost beyond 10 degrees, no adduction limited such that the Veteran cannot cross her legs or rotation limited such that the Veteran cannot toe-out more than 15 degrees. Muscle strength testing was normal and no ankylosis of the right hip was indicated. In a November 2012 notice of disagreement (NOD) the Veteran communicated that she has had to get steroid shots in her right hip to help with her pain. In the May 2013 substantive appeal (Form 9) the Veteran stated that she still has good range of motion in her hips and knees but is limited by daily pain. She uses a cane at times and occasionally is in a great deal of pain when she lies down on her right side. October to December 2014 private physical therapy treatment records document ongoing hip pain, the Veteran needs assistance with getting up from bending/kneeling position. On September 2015 VA examination the Veteran reported flare-ups that are exacerbated with increased physical activity such as squatting or lifting. Initial ROM testing showed right hip flexion to 125 degrees, extension 30 degrees, abduction to 45 degrees, adduction to 25 degrees, external rotation to 60 and internal rotation to 40 degrees. Pain was noted on examination that causes functional loss on internal rotation. Pain was also noted to significantly limit functional ability with repeated use over a period of time. Muscle strength testing revealed a 5 out of 5; with no ankylosis, malunion or nonunion of the femur, or flail hip joint noted. On June 2017 VA examination the Veteran reported flare-ups with increased activity. Initial ROM testing showed right hip flexion to 125 degrees, extension 30 degrees, abduction to 45 degrees, adduction to 25 degrees, external rotation to 60 and internal rotation to 40 degrees. Muscle strength testing revealed a 5 out of 5; with no ankylosis, malunion or nonunion of the femur, or flail hip joint noted. Private orthopedic clinic treatment records from January 2017 to August 2018 document an unstable single leg squat with hip drop and arthritic hips. On February 2019 VA examination the Veteran reported right hip pain ranging from a 4 to 8 out of 10. The right hip flares up when she tries to get up from a sitting position with pain in the anterior part of the hip and around to the back. This limits her activities; she doesn’t run and takes Aleve for the pain. Initial ROM testing showed right hip flexion to 90 degrees, extension 10 degrees, abduction to 20 degrees, adduction to 15 degrees, external rotation to 35 and internal rotation to 20 degrees. Muscle strength testing revealed a 5 out of 5; with no ankylosis, malunion or nonunion of the femur, or flail hip joint noted. The examiner described functional loss, noting that sitting requires at least 90 to 122 degrees of hip flexion with the knees flexed. Additional hip flexion of 120 degrees is necessary for putting on socks, 112 degrees for squatting and 125 degrees for stooping. There was evidence of pain on weight-bearing and localized tenderness or pain on palpation of anterior, lateral and posterior hip. Muscle strength testing revealed reduced right hip strength rated as a 4 out of 5; with no ankylosis, malunion or nonunion of the femur, or flail hip joint noted. The Veteran’s right hip symptoms were noted to impact her ability perform physical labor such as running, squatting, stair climbing and prolonged walking. A July 2019 addendum to the February 2019 VA examination reflects that there was additional functional limitation after repeated use and during flare-ups. An estimate of additional functional loss after repeated use and during flare-ups was expressed in terms of ROM as limiting right hip flexion to 80 degrees, extension 5 degrees, abduction to 20 degrees, adduction to 10 degrees, external rotation to 25 and internal rotation to 10 degrees. Post-test adduction was not limited such that the Veteran cannot cross her legs. Muscle strength testing revealed a 5 out of 5; with no ankylosis, malunion or nonunion of the femur, or flail hip joint noted. In an October 2019 statement the Veteran reiterated that she has had constant pain in her hips since 2012. Her hips get fatigued easily ans she is unable to bend down without assistance with getting back up due to the extreme pain in her knees. She has to be careful not to sit too low because her hip cramps caused her to limp until the cramping goes away. On February 2020 VA examination, the Veteran described intense and frequent right hip pain. Her right hip pain flares-up when she tries to get up from a sitting position, pain is felt in the anterior part of the hip and around to the back. The Veteran described functional loss in that she can’t stand as long as she used to. Initial ROM testing documents right hip flexion to 80 degrees, extension 10 degrees, abduction to 25 degrees, adduction to 25 degrees, external rotation to 35 and internal rotation to 20 degrees. Post-test adduction was not limited such that the Veteran cannot cross her legs. Pain was noted on weight-bearing and non-weight-bearing, there was pain on palpation of the lateral hip. Pain, fatigue and weakness were noted to limit functional ability with repeated use over time and during flare-ups. This limitation was described in terms of ROM as limiting right hip flexion to 80 degrees, extension 5 degrees, abduction to 20 degrees, adduction to 10 degrees, external rotation to 25 and internal rotation to 10 degrees. Muscle strength testing revealed a 5 out of 5; with no ankylosis, malunion or nonunion of the femur, or flail hip joint noted. Functional impact was described as the inability to sit or drive more than 20 minutes without a break. In a September 2020 VA addendum medical opinion to the February 2020 VA examination, the reviewing examiner opined that due to pain, fatigue and weakness after repeated use over time and during flare-ups, the Veteran would be unable to sit or drive more than 20 minutes without a break, in addition to being unable to run, having to limit time standing, walking, stair climbing and an inability to squat or kneel. At the outset, the Board notes that there is no evidence to indicate the Veteran has ever experienced ankylosis of the right hip or flail joint, as such, separate ratings under DC 5250 (for ankylosis) or DC 5254 (for hip flail joint) are not warranted. Additionally, the Veteran’s right hip bursitis has not manifested functional impairment to the extent that a separate rating may be assigned under DC 5253. The record does not show evidence of functional impairment including symptoms such as adduction being unable to cross legs, abduction motion lost beyond 10 degrees, or limitation of rotation such as cannot “toe-out” more than 15 degrees in the affected leg. Consequently, a separate rating under DC 5253 is not warranted. 38 C.F.R. § 4.71a, DC 5253. The Board also finds that the most probative medical evidence does not reach the level of equipoise as to whether higher rating is appropriate for the Veteran’s right hip bursitis during the rating period on appeal as there is no indication that she has malunion of the femur during the relevant period, but a higher rating for right hip extension is warranted. ROM testing performed during the period on appeal documents that the Veteran’s right hip bursitis has manifested flexion limited, at its lowest, to 80 degrees, even when considering additional functional loss after repeated use and during flare-ups. Such a level of functional impairment is contemplated by the assigned 0 percent rating. 38 C.F.R. § 4.71a, DC 5252. With respect to limitation of extension, she has manifested a compensable limitation of extension under DC 5251 since undergoing ROM testing during the February 19, 2019 VA examination, after which the July 2019 VA addendum examiner estimated functional loss after repeated use and during flare-ups expressed in terms of ROM as limiting right thigh extension to 5 degrees. Therefore, a 10 percent rating for limitation of right thigh extension is warranted. With respect to whether a rating in excess of 10 percent is warranted under DC 5255, the Board first finds that application of the rating criteria in effect for DC 5255 prior to February 7, 2021 is most beneficial to the Veteran. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The revised rating criteria in effect from February 7, 2021 onwards offers only a minimum 60 percent rating for the right hip where there is a fracture of the shaft or anatomical neck with nonunion, without loose motion, weightbearing preserved with aid of brace is demonstrated. 38 C.F.R. § 4.71a, DC 5255 (amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020)). Because the evidence does not demonstrate that the Veteran’s right hip bursitis has even been characterized by these symptoms, a higher rating under the revised criteria would not be warranted. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kyle McKone 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.