Citation Nr: 21011731 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 15-42 353 DATE: March 2, 2021 ORDER 1. Entitlement to service connection for hypertension is granted. 2. Entitlement to an initial compensable rating for right femoral acetabular impingement syndrome with labral tear and femoral nerve involvement with limitation of flexion prior to May 23, 2017 and in excess of 20 percent from May 23, 2017 is denied. 3. Entitlement to an initial rating in excess of 10 percent for a right hip disability with impairment of thigh is denied. 4. Entitlement to a compensable rating for a right hip disability with limitation of extension, status post femoral osteochondroplasty and capsular repair from May 23, 2017 is denied. FINDINGS OF FACT 1. After affording the Veteran the benefit of the doubt, the Veteran's hypertension had its onset in service. 2. The Veteran’s right hip disability has not been manifested by flexion limited to 45 degrees or less prior to May 23, 2017 or by flexion limited to 20 degrees or less from May 23, 2017. 3. The Veteran’s right hip disability has not been manifested by limitation of abduction of, motion lost beyond 10 degrees or less. 4. The Veteran’s right hip disability has not been manifested by extension limited to 5 degrees or less from May 23, 2017. 5. For the entire period on appeal, the Veteran’s right hip scar was not greater than six centimeters (cm) long, was not painful or unstable, and did not result in any limitation of function. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for an initial compensable rating for right femoral acetabular impingement syndrome with labral tear and femoral nerve involvement with limitation of flexion prior to May 23, 2017 and in excess of 20 percent from May 23, 2017 have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5252. 3. The criteria for an initial rating in excess of 10 percent for a right hip disability with impairment of thigh have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5253. 4. The criteria for a compensable rating for a right hip disability with limitation of extension, status post femoral osteochondroplasty and capsular repair from May 23, 2017 have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5251. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 2012 to February 2013. In January 2020, the Board remanded the claims for service connection for hypertension and an increased rating for the right hip disability for new VA examinations and readjudication by the Agency of Original Jurisdiction (AOJ). The Board finds there was substantial compliance with this development. The case returns to the Board for further appellate review. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In this case, the disorder at issue, hypertension, is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. See 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). 1. Entitlement to service connection for hypertension. The Veteran contends hypertension was incurred in service. The Board has carefully reviewed the evidence of record and finds that the evidence supports the grant of service connection for hypertension based on a finding that it was chronic. The reasons follow. A December 2012 discharge Report of Medical Examination shows a diagnosis of hypertension. A June 2013 private post-anesthesia care orders report documents medication under the hypertensive patient box which is indicative of the Veteran having hypertension. A March 2015 VA treatment record shows an acute care visit for hypertension. The service treatment records show hypertension in service, and post-service treatment also shows hypertension soon after service; therefore, the Veteran has met the standard of chronicity laid out in 38 C.F.R. § 3.303(b). Resolving reasonable doubt in the Veteran's favor, the Board finds that the current hypertension was "chronic" in service under the presumptive service connection provisions of 38 C.F.R. § 3.303(b). Accordingly, the Board concludes the evidence shows that service connection for hypertension is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects the Veteran's ability to function under the ordinary conditions of daily life, including employment, by comparing the Veteran's symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 C.F.R. § Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In determining the severity of a disability, if the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. 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. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervations, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant 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. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. The provisions regarding the avoidance of pyramiding, see 38 C.F.R. § 4.14, do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. However, those provisions should only be considered in conjunction with the DCs predicated on limitation of motion. 38 C.F.R. §§ 4.40, 4.45. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Painful motion is an important factor of joint disability, which is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. However, the evaluation of painful motion as limited motion only applies when the limitation of motion is noncompensable under the applicable DC. 2. Entitlement to an initial compensable rating for right femoral acetabular impingement syndrome with labral tear and femoral nerve involvement with limitation of flexion prior to May 23, 2017 and in excess of 20 percent from May 23, 2017. The Veteran contends the right hip disability with limitation of flexion warrants a higher rating. The Veteran’s husband noted in a March 2015 correspondence that he has been told that her pain level is irrelevant to her level of disability. He wrote her pain impacts activities of daily living and lowers her patience with him and their daughter. The claim for service connection for a right hip disability with limitation of flexion was granted in an April 2014 rating decision and assigned a 10 percent rating, effective February 28, 2013, the day following service discharge. This rating was assigned for painful motion. In an August 2015 Statement of the Case, the rating was reduced to a noncompensable rating. In a January 2018 rating decision, the AOJ increased the rating to 20 percent, effective May 23, 2017, the date the Veteran submitted an intent to file a claim for compensation. The Veteran has a noncompensable rating under Diagnostic Code 5252 for limited flexion of the thigh prior to May 23, 2017 and a 20 percent rating under DC 5252 for limited flexion of the thigh from May 23, 2017. Under DC 5252, a 10 percent rating requires flexion of the thigh limited to 45 degrees; a 20 percent rating requires flexion limited to 30 degrees; a 30 percent rating requires flexion limited to 20 degrees; and a 40 percent rating requires flexion limited to 10 degrees. 38 C.F.R. § 4.71a, DC 5252. At the outset, the Board notes that the evidence does not support an award for an increased rating at any point of the appeal period for the right hip under DC 5250 for ankylosis of the hip or DC 5255 for impairment of the femur. 38 C.F.R. § 4.71a, DCs 5250, 5255.   Prior to May 23, 2017 The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of a compensable rating for the right hip disability with limitation of flexion prior to May 23, 2017. Specifically, the evidence shows that the Veteran’s right hip disability did not result in limitation of flexion of the thigh to 45 degrees. For example, a March 2014 VA examination showed flexion to 110 degrees with painful motion at 90 degrees. Muscle strength was 5 out of 5 for flexion. The Veteran reported weekly flare-ups that caused increased pain usually after too much stair climbing. The Veteran did not report any change in range of motion or swelling during flare-ups. The Veteran was able to perform repetitive use testing with at least three repetitions, and there was no additional loss of range of motion after three repetitions. A July 2015 VA examination showed flexion to 90 degrees. The limitation of flexion was the same when considering pain. Muscle strength was 5 out of 5 for flexion. The Veteran reported weekly flare-ups with prolonged walking or climbing stairs. Functional loss or impairment was reported as an inability to walk extended distances over uneven terrain. The Veteran was able to perform repetitive use testing with at least three repetitions, and there was no additional loss of range of motion after three repetitions. This is evidence against flexion limited to 45 degrees or less to warrant a 10 percent rating based on limitation of flexion. The Veteran is rated separately under DC 5251 with a 10 percent rating for limitation of extension effective February 28, 2013 and under DC 5253 with a 10 percent rating for limitation of adduction of, cannot cross legs effective July 16, 2015. Thus, the Veteran is in receipt of a compensable rating for painful motion of her right hip as of the day following service discharge. The March 2014 VA examination documents the Veteran’s adduction is not limited such that she cannot cross her legs. The Board has considered whether a higher rating should be assigned pursuant to 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca, and Mitchell criteria, but a higher rating is not warranted for the Veteran's disability picture. See DeLuca v. Brown, 8 Vet. App. at 206-07; Mitchell v. Shinseki, 25 Vet. App. at 42-43. The VA treatment records are silent for any showing of limitation of flexion to 45 degrees or less to include functional impairment that resembles that level of severity. The March 2014 and July 2015 VA examiners noted there was no additional limitation of range of motion after three repetitions. VA treatment records show the Veteran uses a cane. The Board finds that the overlapping rating from DC 5251 contemplates painful motion and how it affects the Veteran, such as difficulty walking and standing for extended periods because of pain; therefore, a separate rating for pain under DC 5252 would amount to pyramiding. From May 23, 2017 The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of a compensable rating in for a right hip disability with limitation of flexion from May 23, 2017. Specifically, the evidence shows that the Veteran’s right hip disability did not result in limitation of flexion of the thigh to 20 degrees. For example, a December 2017 VA examination showed flexion to 30 degrees and muscle strength as 4 out of 5 for flexion. The reduction in muscle strength was also noted as being due in part to the lower extremity peripheral neuropathy. The limitation of flexion to 30 degrees is the same when consider pain and after three repetitions. The Veteran reported flare-ups of pain with prolonged standing. The Board has considered whether a higher rating should be assigned pursuant to 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca, and Mitchell criteria, but a higher rating is not warranted for the Veteran's disability picture. See DeLuca, 8 Vet. App. at 206-07; Mitchell, 25 Vet. App. at 42-43. VA treatment records submitted by the Veteran do not show functional loss from pain, weakness, or fatigability that is not contemplated by the current 20 percent rating. The VA treatment records are similarly silent for any showing of limitation of flexion to 20 degrees or less to include functional impairment that resembles that level of severity. The December 2017 VA examiner noted there was no additional limitation of range of motion after three repetitions. VA treatment records show the Veteran uses a cane. The Board finds that the 20 percent rating contemplates pain and how it affects the Veteran, such as difficulty walking and standing for extended periods because of pain. Although the Board is required to consider the effect of pain when making a rating determination, it is important to emphasize that the rating schedule does not provide a separate rating for pain. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). The Board has considered whether an increased disability rating would be appropriate for right hip scar, which is service connected secondary to the right hip disability. The Veteran’s service-connected right hip scar is evaluated under the General Rating Formula for rating diseases and injuries of the skin. 38 C.F.R. § 4.118, DC 7805. The right hip scar is rated as noncompensable effective May 23, 2017. Diagnostic Code 7805 provides that scars (including linear scars) not otherwise rated under Diagnostic Codes 7800-7804 are to be rated based on any disabling effects not provided for by those codes. In addition, the effects of scars otherwise rated under DCs 7800-7804 are to be considered. DC 7801 provides that burn scars or scars due to other causes, not of the head, face, or neck, that are deep and nonlinear in an area or areas of at least 6 square inches (39 square centimeters) but less than 12 square inches (77 square centimeters) will be assigned a 10 percent rating. Note (1) indicates that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118. DC 7802 pertains to burn scars or scars due to other causes, not of the head, face, or neck, that are superficial and nonlinear in an area or areas of 144 square inches (929 square centimeters) or greater will be assigned a 10 percent rating. Note (1) indicates that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118. DC 7804 pertains to unstable or painful scars. One or two scars that are unstable or painful are rated at 10 percent disabling. Note (1) to Diagnostic Code 7804 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against a compensable rating for a right hip scar at any point during the appeal period. The reasons follow. The March 2014 VA examiner documented three one centimeter scars on the right hip. The examiner marked “no” for any scars of the extremities being painful, unstable, or due to burns. The July 2015 VA examiner documented multiple port scars totaling six centimeters in length. The scars were not painful, unstable, or located on the head, face, or neck. The December 2017 VA examiner documented three scars of two centimeters each. Throughout the entire period on appeal, the Veteran has not exhibited other disabling effects not considered in a rating provided under DCs 7800-7804. Therefore, a compensable rating under DC 7805 is not warranted. The Board has also considered the other DCs pertaining to scars. However, the Veteran's right hip scar is not of the head, face, or neck, is not deep and non-linear, and is not associated with underlying soft tissue damage. Although it is superficial and not associated with underlying soft tissue damage, the scar does not cover an area or areas of 144 square inches or greater. Moreover, the Veteran's right hip scar is not unstable or painful. Therefore, DCs 7800, 7801, 7802, and 7804 are not applicable. In sum, the preponderance of the evidence is against a compensable disability rating prior to May 23, 2017 and/or a rating in excess of 20 percent from May 23, 2017 for the right hip disability with limitation of flexion. As the preponderance of the evidence is against the claim for a higher rating, the benefit of the doubt doctrine is not applicable, and the Veteran’s claim for an increased rating is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 3. Entitlement to an initial rating in excess of 10 percent for a right hip disability with impairment of thigh. The Veteran contends the right hip disability with impairment of the thigh warrants a higher rating. The claim for service connection for a right hip disability with limitation of flexion was granted in a July 2015 rating decision and assigned a noncompensable rating, effective July 16, 2015, the day the VA examination showed impairment exists. The Veteran has a 10 percent rating under Diagnostic Code 5253 for impairment of the thigh. Under DC 5253, a 10 percent rating is warranted where there is limitation of adduction preventing a veteran from crossing legs. Alternately, a 10 percent rating is warranted where there is limitation of rotation of the leg preventing a veteran from toeing-out more than 15 degrees. A maximum schedular 20 percent rating is warranted for limitation of abduction of the thigh with motion lost beyond 10 degrees. 38 C.F.R. § 4.71a, DC 5253. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of an initial rating in excess of 10 percent for a right hip disability with impairment of the thigh. Specifically, the evidence shows that the Veteran’s right hip disability did not result in limitation of abduction with motion lost beyond 10 degrees. For example, a July 2015 VA examination showed abduction limited to 15 degrees. Muscle strength was 5 out of 5 for abduction. The December 2017 VA examiner documented abduction limited to 20 degrees which was the same when considering pain and after three repetitions. Muscle strength was 4 out of 5 for abduction. Muscle strength was also affected by the right lower extremity peripheral neuropathy. This is evidence against limitation of abduction with motion lost beyond 10 degrees. The Board has considered whether a higher rating should be assigned pursuant to 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca, and Mitchell criteria, but a higher rating is not warranted for the Veteran's disability picture. See DeLuca, 8 Vet. App. at 206-07; Mitchell, 25 Vet. App. at 42-43. VA treatment records submitted by the Veteran do not show functional loss from pain, weakness, or fatigability that is not contemplated by the current 10 percent rating. The VA treatment records are similarly silent for any showing of limitation of abduction with motion lost beyond 10 degrees to include functional impairment that resembles that level of severity. The July 2015 and December 2017 VA examiners noted there was no additional limitation of range of motion after three repetitions. VA treatment records show the Veteran uses a cane. The Board finds that the 10 percent rating contemplates pain and how it affects the Veteran, such as difficulty walking and standing for prolonged periods because of pain. Although the Board is required to consider the effect of pain when making a rating determination, it is important to emphasize that the rating schedule does not provide a separate rating for pain. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). In sum, the preponderance of the evidence is against a rating in excess of 10 percent the right hip disability with impairment of the thigh. As the preponderance of the evidence is against the claim for a higher rating, the benefit of the doubt doctrine is not applicable, and the Veteran’s claim for an increased rating is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 4. Entitlement to a compensable rating for a right hip disability with limitation of extension, status post femoral osteochondroplasty and capsular repair from May 23, 2017. The Veteran contends the right hip disability with limitation of extension warrants a higher rating. The claim for service connection for a right hip disability with limitation of extension was granted in an April 2014 rating decision and assigned a noncompensable rating, effective February 28, 2013, the day after service discharge. The Veteran has a noncompensable rating under DC 5251 for limited extension of the thigh from May 23, 2017. Under DC 5251, a 10 percent rating is assigned with extension limited to 5 degrees. This is the maximum rating available for limitation of extension of the thigh. The Board notes that prior to May 23, 2017 the Veteran is in receipt of the maximum schedular rating available under DC 5251, 10 percent, and 100 percent ratings for two periods of surgical treatment necessitating convalescence. The Veteran has not alleged any symptoms that fall outside of the schedular criteria; therefore, the Board will only consider an increase during the period of a noncompensable rating from May 23, 2017. A consideration for an increased rating under other hip and thigh DCs prior to May 23, 2017 has been discussed above. A consideration for an increased rating under scar DCs throughout the appeal period has been discussed above as well. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of a compensable rating for a right hip disability with limitation of extension from March 23, 2017. Specifically, the evidence shows that the Veteran’s right hip disability did not result in limitation of extension to 5 degrees or less. For example, the December 2017 VA examination showed limitation of extension to 15 degrees which remained the same when considering pain and after three repetitions. Muscle strength was 5 out of 5 for extension. This is evidence against extension limited to 5 degrees or less from March 23, 2017. The Board has considered whether a higher rating should be assigned pursuant to 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca, and Mitchell criteria, but a higher rating is not warranted for the Veteran's disability picture. See DeLuca, 8 Vet. App. at 206-07; Mitchell, 25 Vet. App. at 42-43. The VA treatment records are silent for any showing of limitation of extension to 5 degrees or less to include functional impairment that resembles that level of severity. The December 2017 VA examiners noted there was no additional limitation of range of motion after three repetitions. VA treatment records show the Veteran uses a cane. The Board finds that the overlapping rating from DC 5252 contemplates painful motion and how it affects the Veteran, such as difficulty walking and standing for extended periods because of pain; therefore, a separate rating for pain under DC 5251 would amount to pyramiding. In sum, the preponderance of the evidence is against a compensable rating for the right hip disability with limitation of extension from May 23, 2017. As the preponderance of the evidence is against the claim for a higher rating, the benefit of the doubt doctrine is not applicable, and the Veteran’s claim for an increased rating is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. McDaniels, 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.