Citation Nr: 21012396 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 18-35 087 DATE: March 4, 2021 ORDER Entitlement to a rating in excess of 30 percent for limitation of flexion of the left hip from August 26, 2014, to May 15, 2017, is denied. REMANDED Entitlement to a rating in excess of 10 percent for patellofemoral syndrome of the left knee from October 1, 2014, to August 8, 2016, to include entitlement to a separate compensable rating for instability, is remanded. FINDING OF FACT The Veteran did not exhibit left hip flexion limited to 10 degrees during this period of the appeal. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 30 percent for left hip osteoarthritis with limitation of flexion from August 26, 2014, to May 15, 2017, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5252. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1987 to May 1987, March 1988 to July 1988, January 2003 to September 2003, and from September 2003 to September 2006. This matter come before the Board of Veterans’ Appeals (Board or BVA) on appeal from rating decisions dated in August 2015, November 2015, and September 2016 of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In August 2019, the case came before the Board. The Board granted entitlement to service connection for a right hip disorder, right carpal tunnel syndrome, and an acquired psychiatric disorder, other than posttraumatic stress disorder (PTSD). The Board granted entitlement to a 30 percent rating for limitation of flexion of the left hip based on painful motion and functional loss (formerly rated as painful limitation of extension) for the period prior to May 16, 2017. The Board denied entitlement to a rating greater than 40 percent for limitation of flexion of the left hip for the period beginning on May 16, 2017. The Board granted entitlement to a 10 percent rating for limitation of adduction of the left hip prior to May 16, 2017. The Board denied entitlement to a rating greater than 10 percent for limitation of adduction (formerly limitation of abduction) of the left hip for the period beginning on May 16, 2017. The Board granted entitlement to a 10 percent disability rating for limitation of rotation of the left hip, for the rating period beginning on May 16, 2017. The Board denied entitlement to an increased disability evaluation for left knee patellofemoral syndrome, rated as 10 percent disabling from October 1, 2014, to August 8, 2016. The Board also remanded the issues of entitlement to compensation under 38 U.S.C. § § 1151 for a back disorder, diverticulitis, neurogenic bladder, residuals of pelvic mesh surgery. The Board also remanded entitlement to an increased disability evaluation for supraventricular arrhythmia, rated as 30 percent disabling and entitlement to an effective date prior to March 15, 2016, for the grant of special monthly compensation based on housebound status. Lastly, the Board remanded entitlement to special monthly compensation on the basis of aid and attendance. Following the Board’s decision, the Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court). In September 2020, the Secretary of VA and a representative of the Veteran filed a Joint Motion for Partial Remand (JMPR). Initially, the Board notes that the Veteran did not challenge the portion of the Board’s decision that denied entitlement a disability rating in excess of 40 percent for limitation of flexion of the left hip for the period beginning on May 16, 2017; a disability rating in excess of 10 rating for limitation of adduction of the left hip prior to May 16, 2017; a disability rating in excess of 10 percent for limitation of adduction (formerly limitation of abduction) of the left hip for the period beginning on May 16, 2017; and a disability rating in excess of 10 percent for limitation of rotation of the left hip, for the rating period beginning on May 16, 2017. The parties also agreed not to disturb the portion of the Board’s decision granting entitlement to service connection for a right hip disorder; right carpal tunnel syndrome; an acquired psychiatric disorder, other than posttraumatic stress disorder (PTSD); a 50 percent rating for limitation of flexion of the left hip based on painful motion and functional loss (formerly rated as painful limitation of extension) for the period prior to May 16, 2017; a 10 percent rating for limitation of adduction of the left hip prior to May 16, 2017; and a 10 percent disability rating for limitation of rotation of the left hip for the rating period beginning on May 16, 2017. The remanded issues were not before the Court and were not included in the JMPR. As to the issue of entitlement to a rating in excess of 30 percent for left hip limitation of flexion, the parties agreed that the Board did not adequately explain why evidence of significant functional loss did not warrant a disability rating in excess of 30 percent for limitation of flexion. The parties agreed that a remand was necessary and the Board must provide an adequate statement of reasons or bases addressing whether the evidence of record, to include lay reports of functional loss warrants entitlement to a rating in excess of 30 percent for limitation of flexion of the left hip based on painful motion and functional loss for the period prior to May 16, 2017. Lastly, as to the issue of entitlement to an increased rating for a left knee disability to include a separate compensable rating for left knee instability, the parties agreed that the Board erred when it did not adequately address the inconsistency between Veteran’s lay report that her knee “sometimes gives out” and the July 2015 VA examiner’s finding of no history of lateral instability. The parties also agreed that the Board erred when the Board did not adequately address the Veteran’s use of muscle relaxers and pain medication to treat her left knee symptoms. Accordingly, the parties agreed that a remand was necessary in order to address these symptoms. As will be discussed below, the Board has considered the evidence of record as to the Veteran’s left hip claim and will proceed with a decision on the merits. To this end, the Board wishes to make it clear that it is aware of the Court’s instructions in Fletcher v. Derwinski, 1 Vet. App. 394 (1991), to the effect that a remand by the Court is not “merely for the purposes of rewriting the opinion so that it will superficially comply with the ‘reasons or bases’ requirement of 38 U.S.C. § 7104 (d)(1). A remand is meant to entail a critical examination of the justification for the decision.” The Board’s analysis has been undertaken with Fletcher in mind. Increased Rating 1. Entitlement to a rating in excess of 30 percent for left hip osteoarthritis prior to May 16, 2017 The Veteran contends that her disability warrants an increased rating. A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2015). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in such cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Instead, in Mitchell, the Court explained that, pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, and less or more movement than is considered normal, weakened movement, excess fatigability, and pain on movement (with swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The Board observes that the words “slight,” “moderate,” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2018). It should also be noted that use of descriptive terminology such as “mild” by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in the process of arriving at a decision regarding an increased rating. 38 U.S.C. § 7104(a); 38 C.F.R. §§ 4.2, 4.6. In considering the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board awarded a 30 percent rating according to Diagnostic Code 5010-5252. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned. The additional code is shown after the hyphen. Full hip range of motion is defined as 0 to 125 degrees hip flexion and 0 to 45 degrees hip abduction. See 38 C.F.R. § 4.71, Plate II. Under Diagnostic Code 5252, a 10 percent disability evaluation is assigned for flexion of the thigh limited to 45 degrees. For the next higher evaluation, a 20 percent rating, there must be limitation of flexion to 30 degrees. Limitation of thigh flexion to 20 degrees warrants a 30 percent rating, and limitation of flexion to 10 degrees warrants a 40 percent rating. Under Diagnostic Code 5010, for arthritis due to trauma, a rating is in turn rated as degenerative arthritis, under DC 5003. 38 C.F.R. § 4.71a. Under DC 5003, degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion is non-compensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, x-ray evidence of arthritis involving two or more major joints, or two or more minor joint groups will warrant a 10-percent rating, or a 20-percent rating where there are occasional incapacitating exacerbations. During the course of the appeal, the muscular skeletal rating codes were changed effective on February 7, 2021. Diagnostic Code 5010 now reads as follows: Post-traumatic arthritis: Rate as limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with §4.25. Diagnostic Code 5252 was unaffected by the February 7, 2021 revision. As to a current diagnosis, the Board notes that the Veteran’s disability has been diagnosed as osteoarthritis. At a November 2015 examination, the Veteran’s left hip had flexion to 125 degrees, extension to 30 degrees, abduction to 45 degrees, adduction to 25 degrees, external rotation to 60 degrees, and internal rotation to 40 degrees, and was able to cross her legs. Following three repetitions, motion was limited to flexion of 60 degrees, extension of 30 degrees, abduction of 30 degrees, adduction of 25 degrees, external rotation of 60 degrees, and internal rotation of 40 degrees, and she could no longer cross her legs. The examiner noted that during a flareup the Veteran’s range of motion was limited to flexion of 60 degrees, extension of 30 degrees, abduction of 30 degrees, adduction of 25 degrees, external rotation of 60 degrees, and internal rotation of 40 degrees, and she could no longer cross her legs. Muscle strength was 4/5, there was no atrophy, leg shortening, flail joint impairment, or malunion. She was noted to have significant limits on functional ability due to pain, fatigue, weakness, lack of endurance, and incoordination, that interfered with sitting, standing, caused instability of station, and deformity. Her left hip was not so diminished that amputation with a prosthetic would equally serve. She used a brace regularly, a walker constantly, and a cane occasionally. The examiner also indicated that she had favorable ankylosis in flexion at an angle of 20 to 40 degrees and slight adduction and abduction. While the Board notes that the examiner checked the box indicating the presence of favorable ankylosis in flexion from 20 to 40 degrees, with slight abduction and adduction, the Board finds that this check was an error on the examiner’s part as it contradicts the rest of the examination which shows flexion of 125 degrees before repetitive use and 60 degrees after, and more than slight abduction and adduction both before and after repetitive use. Clearly, these findings are not consistent with the hip being in a fixed or ankylosed position between 20 and 40 degrees of flexion. The Board has also reviewed the Veteran’s medical treatment records. After a review of the Veteran’s records, the Board finds that the Veteran’s records do not demonstrate that the Veteran exhibited limitation of flexion to 10 degrees. In sum, the Board finds that the Veteran’s left hip disability, manifested by limitation of flexion, has remained consistent and that a rating increase is not warranted. After a review of the record, the Board notes that the evidence does not demonstrate that the Veteran’s hip exhibits limitation of flexion to 10 degrees. The Board has considered the Veteran’s reports of pain and lost range of motion during a flareup; however, the Board does not find that the Veteran’s symptomatology, even when considering pain on motion, demonstrates that her disability results in lost range of motion which warrants a rating in excess of 30 percent. Specifically, the Board notes that the range of motion that was measured following repetitive testing and the examiner’s estimates of lost range of motion during a flareup do not result in flexion that is limited to 10 degrees. Moreover, with the most significant limitation based on functional use at 60 degrees, the Board finds that there is no uncompensated compensable limitation of motion that can provide a basis for a higher rating for pain under DeLuca. Accordingly, for the above-stated reasons, the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply, and the claim for entitlement to a rating in excess of 30 percent for a left hip disability manifested by limitation of flexion must be denied. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for a left knee disability for the period of October 1, 2014, to August 8, 2016, to include a separate compensable rating for instability is remanded. In the September 2020 JMPR, the parties agreed that the Board failed to adequately address the Veteran’s reports of instability. In addition, the parties agreed that the Board did not adequately address the Veteran’s use of medications to treat her left knee symptoms. As a result of the JMPR, the Board finds that additional development is necessary, and that a remand is required in order to obtain a VA medical opinion prior to the Board’s further consideration of the claim on appeal. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination in order to determine the severity of her left knee disability from October 1, 2014, to August 8, 2016. The examiner must specifically address the Veteran’s use of medications to treat the symptoms of her left knee during this period, and the level of instability demonstrated in the knee in addition to the basis for that assessment, making sure to also take into account the Veteran’s statements as to this claimed symptom. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Rescan, 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.