Citation Nr: 21010668 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 14-43 924 DATE: February 25, 2021 ORDER An initial disability rating in excess of 10 percent for limitation of flexion of the left hip is denied. A separate compensable disability rating for limitation of extension of the left hip is denied. A separate compensable disability rating for limitation of abduction, adduction, or rotation of the left hip is denied. An initial disability rating in excess of 30 percent from February 1, 2018 for a left knee disability is denied. An initial disability rating of 20 percent, but no more, for left femur scarring is granted. An initial compensable disability rating for residual surgical scarring of the left knee is denied. FINDINGS OF FACT 1. The Veteran’s left hip did not manifest ankylosis; flail hip joint, a malunion or fracture of shaft or anatomical neck; or a flexion limited to 30 degrees or less throughout the period on appeal. 2. The Veteran’s left hip did not manifest an extension limited to five degrees throughout the period on appeal. 3. The Veteran’s left hip did not manifest the Veteran needed to manifest an extension limited to five degrees; a flexion limited to 30 degrees or less; rotation is limited such that the Veteran cannot toe-out more than 15 degrees, adduction is limited such that the Veteran cannot cross legs. 4. The Veteran underwent a left knee implantation on December 10, 2018, and from February 1, 2020 the Veteran’s left knee disability rating did not manifest ankylosis, a tibial or fibular impairment, chronic residuals consisting of severe painful motion or weakness, or an extension limited to zero degrees or more. 5. The Veteran manifested four unstable surgical scars on the left femur and left knee. 6. The Veteran did not manifest five or more unstable or painful scars; scarring of the head, face, or neck; scarring associated with soft tissue damage; or additional disabling effects from scarring. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent for limitation of flexion of the left hip have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5250, 5252, 5254-5255. 2. The criteria for a separate compensable disability rating for limitation of extension of the left hip have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5251. 3. The criteria for a separate compensable disability rating for limitation of abduction, adduction, or rotation of the left hip have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5253. 4. The criteria for an initial disability rating in excess of 30 percent from February 1, 2018 for a left knee disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5055, 5256, 5261-5262. 5. The criteria for an initial disability rating of 20 percent, but no more, for left femur scarring have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, Diagnostic Codes 7800-7803, 7804-7805. 6. The criteria for an initial compensable disability rating for residual surgical scarring of the left knee have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, Diagnostic Codes 7800-7803, 7804-7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from December 1982 to December 1985. These matters comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal is being adjudicated under the legacy appellate framework. In the substantive appeal perfecting these matters to the Board, the Veteran indicated that he did not desire a personal hearing before the Board. These matters were previously before the Board, and, in May 2018 and June 2020, the Board remanded these matters for further development. Further development in substantial compliance with the Board’s previous remand instructions has been completed. Increased 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. 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 appellant working or seeking work. 38 C.F.R. § 4.2. 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. 1. An initial disability rating in excess of 10 percent for limitation of flexion of the left hip is denied. 2. A separate compensable disability rating for limitation of extension of the left hip is denied. 3. A separate compensable disability rating for limitation of abduction, adduction, or rotation of the left hip is denied. At issue is whether the Veteran is entitled to an increased disability rating for a left femur disability. The weight of the evidence indicates that the Veteran is not entitled to an increased disability rating. The Veteran first filed for service connection in May 2012, and the RO granted service connection in September 2013 and assigned a noncompensable disability rating effective the date the claim was received. The Veteran appealed the initial disability rating. During the pendency of the appeal, the Veteran was granted a disability rating of 10 percent throughout the period on appeal based on limitation of flexion. Additionally, the Veteran was granted two separate noncompensable disability ratings based on limitation of extension and impairment of the thigh effective August 8, 2020. Disability ratings for femur disabilities are assigned pursuant to Diagnostic Codes 5250-5255. 38 C.F.R. § 4.71a, Diagnostic Codes 5250-5255. Diagnostic Codes 5250 (ankylosis), 5254 (flail hip joint), and 5255 (malunion or fracture of shaft or anatomical neck), because the Veteran has manifested ankylosis, flail hip joint, malunion, or fracture of the shaft or anatomical neck. Therefore, these Diagnostic Codes do not provide an adequate basis for an increased disability rating. 38 C.F.R. § 4.71a, Diagnostic Codes 5250, 5254-5255. Under Diagnostic Code 5251, a disability rating of 10 percent is assigned when extension is limited to five degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5251. Under Diagnostic Code 5252, a disability rating of 10 percent is assigned when flexion is limited to 45 degrees, and a disability rating of 20 percent is assigned when flexion is limited to 30 degrees. A disability rating of 30 percent is assigned when flexion is limited to 20 degrees, and a disability rating of 40 percent is assigned when flexion is limited to 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5252. Under Diagnostic Code 5253, a disability rating of 10 percent is assigned when rotation is limited such that the Veteran cannot toe-out more than 15 degrees, or when adduction is limited such that the Veteran cannot cross legs. A disability rating of 20 percent is assigned when abduction is limited to 20 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5253. The Veteran underwent a VA examination in August 2013. The Veteran reported limited movement, loss of muscle mass, and flare-ups during cold weather. The Veteran’s range of motion measurements were as follows: flexion to 125 degrees; extension to zero degrees; abduction is not lost beyond 10 degrees; adduction is not limited such than cannot cross legs; and rotation is not limited such that cannot toe-out more than 15 degrees. The Veteran was able to perform repetitive range of motion without additional loss of range of motion. The examiner opined that the Veteran did not manifest any additional functional loss. The examiner indicated that the Veteran did not manifest ankylosis, flail hip joint, malunion, or fracture of the shaft or anatomical neck. The Veteran underwent another VA examination in February 2019. The Veteran reported muscle loss, weakness, and arthritis. The Veteran denied flare-ups, but the Veteran reported additional functional loss including inability to squat, kneel, standing straight, weight bearing, and climbing steps; difficulty sitting, standing, or walking for long periods of time; and pain and swelling while walking, sitting, lying, and standing. The Veteran’s range of motion measurements were as follows: flexion to 125 degrees; abduction to 45 degrees; adduction is not limited such that cannot cross legs; external rotation to 60 degrees; and internal rotation to 40 degrees. The examiner opined that the Veteran did not manifest additional functional loss. The examiner indicated that the Veteran did not manifest ankylosis, flail hip joint, malunion, or fracture of the shaft or anatomical neck. The Veteran underwent another VA examination in August 2020. The Veteran reported dull pain over the left lateral hip that would flare-up after exertion. The Veteran’s range of motion measurements were as follows: flexion to 60 degrees; extension to 20 degrees; abduction to 45 degrees; adduction is limited such that cannot cross legs; external rotation to 50 degrees; and internal rotation to 40 degrees. The Veteran was able to perform repetitive range of motion without additional loss of range of motion. The examiner opined that the Veteran did not manifest additional functional loss. The examiner opined that the Veteran manifested additional functional impairment, and the Veteran’s reduced range of motion measurements were as follows: flexion to 50 degrees; extension limited to 15 degrees; abduction limited to 40 degrees; adduction is not limited such that cannot cross legs; external rotation to 45 degrees; and internal rotation to 35 degrees. The weight of the evidence indicates that the Veteran is not entitled to an increased disability rating for a femur disability. In order to meet the criteria for a disability rating in excess of 10 percent or a separate compensable disability rating, the Veteran needed to manifest an extension limited to five degrees; a flexion limited to 30 degrees or less; rotation is limited such that the Veteran cannot toe-out more than 15 degrees, adduction is limited such that the Veteran cannot cross legs. The Veteran underwent range of motion testing repeatedly throughout the period on appeal, and the Veteran never met these range of motion requirements. Therefore, the criteria for an increased disability rating have not been met. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. § 4.45. Even if range of motion was slightly limited by pain however, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rather, pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Id. The Veteran is not entitled to an increased disability rating or a separate compensable disability rating even after taking additional functional impairment into consideration. VA examiners in August 2013 and February 2019 both opined that the Veteran did not manifest additional functional impairment. An August 2020 VA examination indicated that the Veteran did manifest additional functional impairment, but the Veteran’s range of motion measurements were still in excess of the criteria for an increased disability rating or a separate compensable disability rating even after taking additional functional impairment into consideration. Here, the weight of the probative evidence of record simply fails to demonstrate that the Veteran is entitled to increased disability ratings for the left femur. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, entitlement to increased disability ratings for a left femur disability is denied. 4. An initial disability rating in excess of 30 percent from February 1, 2018 for a left knee disability is denied. At issue is whether the Veteran is entitled to a disability rating in excess of 30 percent from February 1, 2018 for a left knee disability. The weight of the evidence indicates that the Veteran is not entitled to an increased disability rating. The Veteran first filed for service connection in May 2012, and the RO granted service connection in September 2013 and assigned a disability rating of 10 percent effective the date the claim was received. The Veteran appealed the initial disability rating. The Board, in June 2020, previously disposed of the Veteran’s claim for the period on appeal prior to December 10, 2018. The Veteran’s treatment records indicate that the Veteran underwent a total left knee arthroplasty on December 10, 2018. Additionally, the Veteran has been assigned a total disability rating from December 10, 2018 to January 31, 2020. See November 2018 Rating Decision Code Sheet. The Veteran’s left knee disability rating is evaluated pursuant to Diagnostic Codes 5055, 5256, & 5261-5262. 38 C.F.R. § 4.71a, Diagnostic Code 5055, 5256, 5261-5262. Under Diagnostic Code 5055, a total disability rating is assigned for one year following implantation of a prosthesis. Thereafter, the Veteran is assigned a minimum disability rating of 30 percent. The Veteran may be assigned a maximum disability rating of 60 percent if there are chronic residuals consisting of severe painful motion or weakness in the affected extremity. With intermediate degrees of residual weakness, pain, or limitation of motion the disability is rated by analogy to Diagnostic Codes 5256, 5261, & 5262. 38 C.F.R. § 4.71a, Diagnostic Code 5055. Diagnostic Codes 5256 (ankylosis) and 5262 (impairment of tibia or fibula) are not raised by the record, because the Veteran did not manifest ankylosis or an impairment of the tibia or fibula. Therefore, Diagnostic Code 5256 does not provide an adequate basis for an increased disability rating. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262. Under Diagnostic Code 5261, a disability rating of 30 percent is assigned when extension is limited to 20 degrees, and a disability rating of 40 percent is assigned when extension is limited to 30 degrees; and a disability rating of 50 percent is assigned when extension is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. The Veteran underwent a VA examination in August 2020. The Veteran reported dull pain with crepitus. The Veteran reported flare-ups including worse with movement with exertion. The examiner indicated that the Veteran did not manifest ankylosis or impairment of the tibia or fibula. The Veteran reported additional functional impairment including difficulty walking for long due to pain. The Veteran’s extension was to zero degrees. The examiner opined that the Veteran manifested left knee residuals including intermediate degrees of weakness, but that the Veteran did not manifest chronic residuals consisting of severe painful motion or weakness. The Veteran was able to perform repetitive range of motion testing without additional loss of range of motion. The examiner opined that the Veteran manifested additional functional impairment, but even after taking additional functional impairment into consideration, the Veteran’s extension was to zero degrees. The weight of the evidence indicates that the Veteran is not entitled to an increased disability rating. In order to meet the criteria for a disability rating in excess of 30 percent, the Veteran needed to manifest ankylosis, a tibial or fibular impairment, chronic residuals consisting of severe painful motion or weakness, or an extension limited to 30 degrees or more. The Veteran did not manifest ankylosis or a tibial or fibular impairment during the period on appeal. The Veteran did manifest left knee residuals including left knee weakness, but an examiner opined that the Veteran’s left knee residuals were not severe enough to be considered chronic with severe painful motion or weakness. Finally, the Veteran’s extension was measured during the period on appeal, and it was less than 30 degrees. Therefore, the Veteran is not entitled to an increased disability rating. As previously noted, it is necessary – in evaluating disabilities of the musculoskeletal system – to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. See DeLuca. Even after taking additional functional impairment into consideration however, the examiner still estimated that the Veteran’s extension was to zero degrees. Therefore, the Veteran is not entitled to an increased disability rating even after taking additional functional impairment into consideration. Here, the weight of the probative evidence of record simply fails to demonstrate that the Veteran is entitled to an increase disability rating for a left knee disability. Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, a disability rating in excess of 30 percent for a left knee disability is denied. 5. An initial disability rating of 20 percent, but no more, for left femur scarring is granted. 6. An initial compensable disability rating for residual surgical scarring of the left knee is denied. At issue is whether the Veteran is entitled to increased disability ratings for scarring. The weight of the evidence indicates that the Veteran is entitled to a single disability rating of 20 percent, but no more, for scarring. The Veteran first filed for service connection for surgical scars of the left femur and the left knee in May 2012, and, in September 2013, the RO granted service connection; but, rather than grant separate disability ratings, the RO characterized the Veteran’s left femur and left knee disability ratings as taking surgical scars into consideration. The Veteran appealed the initial disability ratings. During the pendency of the appeal, the Veteran was granted the following separate disability ratings for scarring: a noncompensable disability rating for a surgical scar of the left femur effective May 10, 2012; a surgical scar associated with a meniscus repair of the left knee effective May 10, 2012; and a surgical scar associated with total arthroplasty effective February 1, 2020. See November 2020 Rating Decision Code Sheet. Disability ratings for scarring is evaluated pursuant to Diagnostic Codes 7800-7803 & 7804-7805. The Board notes that VA amended the criteria for rating skin disabilities during the period on appeal. Nevertheless, the changes to the rating criteria do not substantively impact the outcome of this case. To simplify matters, the Board will use the more recent versions of the rating criteria. Diagnostic Code 7800 (scars of the head, face, or neck) is not raised by the record, because the Veteran has not been granted service connection for any scars of the head, face, or neck. 38 C.F.R. § 4.118, Diagnostic Codes 7800-7803, 7804-7805. Under Diagnostic Code 7801, a disability rating of 10 percent is assigned when the Veteran manifests scaring associated with soft underlying tissue damage with an area of at least 6 sq. in. (39 sq. cm) but less than 12 sq. in. (77 sq. cm), and a disability rating of 20 percent is assigned when the Veteran manifests scaring associated with soft underlying tissue damage with an area of at least 12 sq. in. (77 sq. cm) but less than 72 sq. in. (465 sq. cm). A disability rating of 30 percent is assigned when the Veteran manifests when the Veteran manifests scaring associated with soft underlying tissue damage with an area of at least 72 sq. in. (465 sq. cm) but less than 144 sq. in. (929 sq. cm), and a disability rating of 40 percent when the Veteran manifests scaring associated with soft underlying tissue damage with an area of at least 144 sq. in. (929 sq. cm). 38 C.F.R. § 4.118, Diagnostic Code 7801. Under Diagnostic Code 7802, a disability rating of 10 percent is assigned for scarring not associated with underlying soft tissue damage with an area of at least 144 sq. in. (929 sq. cm). 38 C.F.R. § 4.118, Diagnostic Code 7802. Under Diagnostic Code 7804, a disability rating of 10 percent is assigned when the Veteran manifests one to two painful or unstable scars, and a disability rating of 20 percent is assigned when the Veteran manifests three to four painful or unstable scars; and a disability rating of 30 percent is assigned when the Veteran manifests five or more painful or unstable scars. 38 C.F.R. § 4.118, Diagnostic Code 7804 Under Diagnostic Code 7805, scars are evaluated by analogy to other disabilities based on the presence of additional disabling effects. 38 C.F.R. § 4.118, Diagnostic Code 7805. The Veteran underwent a VA examination evaluating the Veteran’s left femur in August 2013. The examiner noted that the Veteran had scarring on the left femur, but that it was not unstable or painful and did not have an area of 6 sq. in. or (39 sq. cm). The Veteran underwent a VA examination evaluating the Veteran’s left knee in August 2013. The examiner noted that the Veteran had scarring on the left knee, but that it was not unstable or painful and did not have an area of 6 sq. in. or (39 sq. cm). The Veteran underwent another VA examination evaluating the Veteran’s left femur in February 2019. The examiner noted that the Veteran had scarring on the left femur, but that it was either of the face, head, or neck; unstable or painful; or had an area of 6 sq. in. or (39 sq. cm) or more. The Veteran underwent another VA examination evaluating the Veteran’s left knee in February 2019. The examiner noted that the Veteran had scarring on the left knee, but that it was not unstable or painful and did not have an area of 6 sq. in. or (39 sq. cm). The Veteran underwent a VA examination evaluating the severity of the Veteran’s scarring in February 2019. The examiner noted the following scars on the left lower extremity: a 2.2 sq. cm scar on the anterior knee; a 2.0 sq. cm scar on the left gluteal region; and a 1.3 sq. cm scar on the left gluteal region. The examiner also indicated that there was a total of 1053 sq. cm of scarring without underlying soft tissue damage on the left lower extremity; although the sum of total of the three itemized scars listed above is only 5.5 sq. cm. The examiner indicated that none of the Veteran’s scars resulted in underlying tissue damage, were unstable, were painful, or caused any additional findings or complications due to scarring. The Veteran underwent another VA examination evaluating the Veteran’s left femur in August 2020. The examiner noted two scars: a 22.5 sq. cm scar; and a 27 sq. cm scar on the left buttock. The examiner indicated that the Veteran did not manifest any unstable or painful scars or have an area of 39 sq. cm or more; despite the fact that the itemized scars listed above have a sum total of 49.5 sq. cm. The Veteran underwent another VA examination evaluating the Veteran’s left knee in August 2020. The examiner noted two scars: an 18 sq. cm scar; and a 12 sq. cm scar on the left buttock. The examiner indicated that the Veteran did not manifest any unstable or painful scars or have an area of 39 sq. cm or more. The Veteran underwent another VA examination evaluating the severity of the Veteran’s scarring in August 2020. The examiner noted the following scars on the left lower extremity: an 18 sq. cm scar on the left knee; a 12 sq. cm scar on the left knee; a 22.5 sq. cm scar on the left buttock; and a 27 sq. cm scar on the left buttock. The examiner noted that the Veteran that the Veteran had a sum total of 79.5 sq. cm of scarring; which is consistent with the four itemized scars listed above. The examiner indicated that none of the Veteran’s scars resulted in underlying tissue damage, were unstable, were painful, or caused any additional findings or complications due to scarring. The Veteran is entitled to a disability rating of 20 percent. The weight of the evidence indicates that the Veteran has four surgical scars on the left femur and left knee. The weight of the evidence indicates that the surface area of these scars has been variable throughout the period on appeal. Therefore, the Veteran has manifested four unstable scars, and the Veteran is entitled to disability rating of 20 percent. The Veteran is not entitled to a disability rating in excess of 20 percent. In order to meet the criteria for a disability rating in excess of 20 percent, the Veteran needed to manifest five or more painful or unstable scars, scaring associated with underlying tissue damage; scarring of the head, face, or neck; or additional disabling effects of scarring. Nevertheless, the Veteran was evaluated multiple times, and the Veteran never manifested more than four scars; and the Veteran’s scaring was never associated with underlying tissue damage or any additional disabling effects. The Board is cognizant that the February 2019 VA examination evaluating the severity of the Veteran’s left femur indicated that the Veteran had scarring on the left femur, but that it was either of the face, head, or neck; unstable or painful; or had an area of 6 sq. in. or (39 sq. cm) or more. Nevertheless, a contemporaneous VA examination evaluating the Veteran’s scarring indicated that the Veteran did not have scars of the head, face, or neck, and that the femur examination was more likely than not referring to area of the Veteran’s scaring being in excess of 6 sq. in. or (39 sq. cm). Therefore, the criteria for a disability rating in excess of 20 percent have not been met. Here, the weight of the probative evidence of record demonstrates that the Veteran is entitled toa disability rating of 20 percent, but no more, for the Veteran’s scarring. Therefore, the evidence in this case is evenly balanced enough so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, entitlement to a disability rating of 20 percent, but no more, is granted. [SIGNATURE ON NEXT PAGE] DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Seaton 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.