Citation Nr: 21012626 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 17-01 992 DATE: March 4, 2021 ORDER Entitlement to a rating in excess of 10 percent for femoroacetabular impingement, right hip with arthritis and limitation of extension and internal rotation of the thigh is denied. REMANDED Entitlement to service connection for left knee patellofemoral pain syndrome, to include as secondary to service-connected right hip disability, is remand. Entitlement to service connection for right knee patellofemoral pain syndrome, to include as secondary to service-connected right hip disability, is remand. Entitlement to service connection for lumbosacral strain, to include as secondary to service-connected right hip disability, is remand. Entitlement to service connection for left hip femoroacetabular impingement, to include as secondary to service-connected right hip disability, is remand. FINDING OF FACT The Veteran is in receipt of the maximum schedular disability rating for his right hip disability. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for right hip disability have not been met. 38 U.S.C. §§ 1155, 5107, 38 C.F.R. §§ 4.1 4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DC) 5003, 5251. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2003 to December 2003 and May 2005 to May 2006. In November 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. In February 2020, the Board remanded the claim for further development. The Board notes that after the agency of original jurisdiction (AOJ) last considered the appeal in the June 2020 Supplemental Statement of the Case (SSOC), the Veteran has submitted private medical evidence and additional arguments. The Board notes that there is now an automatic waiver of initial AOJ review of evidence submitted to the AOJ or to the Board at the time of or subsequent to the submission of a Substantive Appeal filed on or after February 2, 2013, unless the claimant or claimant’s representative requests in writing that the AOJ initially review such evidence. See 38 U.S.C. § 7105(e)(1). In the present case, the Veteran’s Substantive Appeal was received in December 2016, which is after the February 2, 2013 effective date of the new statute. Also, the Veteran did not request initial AOJ review of this evidence. Thus, no waiver of AOJ consideration for this evidence is necessary in order for the Board to consider it. Entitlement to a rating in excess of 10 percent for right hip disability Disability evaluations are determined by the application of the VA 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. 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 claimant. 38 C.F.R. § 4.3. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be “staged.” Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service-connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). A disability may require re-evaluation in accordance with changes in a veteran’s condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. The Veteran’s right hip disability is rated under 38 C.F.R. § 4.71a, DCs 5003-5251. During the pendency the Veteran’s appeal, VA amended criteria for rating musculoskeletal disabilities. The new regulation applies to claims received on or after February 7, 2021 or previously filed claims that are pending on February 7, 2021 if the new regulation will render more favorable result for the Veteran. As such, the Board will evaluate the Veteran’s disability under both old and new regulations for the entire appeal period and choose the more favorable result. The new regulation revises the rating criteria for DC 5255 regarding malunion of the femur. The revised rating stated that malunion of the femur should be evaluated under DCs 5256, 5257, 5260, or 5261 for the knee, or 5250-5254 for the hip, whichever results in the highest evaluation. The Board notes that DCs 5250 through 5254 and 5255 regarding impairment of the femur remain unchanged. As noted above, the Veteran’s disability is rated under 38 C.F.R. § 4.71a, DCs 5003-5251. Hyphenated DCs are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. In this case, the use of DCs 5003-5251 reflects that the service-connected limitation of extension of the right hip has been rated under DC 5003 for arthritis with reference to DC 5251 for limitation of extension. See 38 C.F.R. § 4.20. Diagnostic Code 5003 directs that a rating shall be awarded on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. If noncompensable limitation of motion is demonstrated, a 10 percent rating is assigned for each major joint or group of minor joints affected. A 20 percent rating is assigned for each major joint or group of minor joints affected, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5003. For the purpose of rating disability from arthritis, the hip is considered a major joint. 38 C.F.R. § 4.45. Diagnostic Code 5251 provides a maximum 10 percent rating for limitation of extension of the thigh to five degrees. 38 C.F.R. § 4.71a, DC 5251. Diagnostic Code 5252 provides a 10 percent rating for limitation of flexion of the thigh that is limited to 45 degrees. A 20 percent rating is assigned for flexion of the thigh limited to 30 degrees. A 30 percent rating is assigned for flexion of the thigh limited to 20 degrees. Finally, a 40 percent rating is assigned for flexion of the thigh limited to 10 degrees. 38 C.F.R. § 4.71a, DC 5252. Diagnostic Code 5253 provides a 10 percent rating for impairment of the thigh with limitation of rotation such that the veteran cannot toe-out more than 15 degrees of the affected leg or limitation of adduction such that the veteran cannot cross his or her legs. A 20 percent rating is warranted for limitation of abduction such that motion is lost beyond 10 degrees. 38 C.F.R. § 4.71a, DC 5253. Normal ranges of motion (ROM) of the hip include hip flexion from 0 to 125 degrees, hip extension from 0 to 30 degrees, hip abduction from 0 to 45 degrees, hip adduction from 0 to 25 degrees, hip external rotation from 0 to 60 degrees, and hip internal rotation from 0 to 40 degrees. 38 C.F.R. § 4.71, Plate II. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under 38 C.F.R. § 4.40 or 4.45 itself is not appropriate. When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case, the claim is denied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. Analysis The Veteran contends that his right hip disability is more severe than the rating depicts. In April 2013, the Veteran saw his private physician regarding his bilateral hip pain. The Veteran had a non-antalgic gait. Bilateral range of motion (ROM) was from zero to 95 degrees with pain in both hips. Bilaterally, his external rotation was 60 degrees and internal rotation was 15 degrees. The examiner noted pain on internal and external rotation. The Veteran experienced pain in the anterior groin of both hips with all ROM. Leg length was apparently equal, and his log roll was symmetrical. However, internal rotation with log roll of the left hip was painful intra-articulary. Bilaterally, muscle strength testing of the hip flexors, extensors, abductors, and adductors was 5/5. The examiner noted no tenderness to palpation at either trochanteric bursa and has a Faber on the right of two fists and a Faber on the left of 3.5 fists. Both of these reproduce pain in the anterior groin. Bilaterally, he has positive Scour’s tests. In May 2014, the Veteran was afforded a VA examination to determine the severity of his right hip disability. The Veteran stated that both hips were painful, the right worse that the left. He reported pain with all movements. To reduce pain, his movements were slow and deliberate. He did not experience instabilities, trauma, or injury since service. The Veteran was able to perform activities of daily living (ADL), but he was unable to run or do yard work. To help relieve the pain, the Veteran took IBU. His strength was limited only by pain. He had no locking or getting stuck in hips. The examiner confirmed the Veteran’s right hip femoroacetabular impingement diagnosis. The Veteran reported flare-ups that impacted the function of his hip. He stated any running, walking, and repetitive bending caused an increased burning ache in the hips. He also experienced daily dull pressure that increased inside his hips. The Veteran’s bilateral hip flexion was from zero to 90 degrees with objective evidence of painful motions beginning at 70 degrees. His bilateral extension was to zero degrees with objective evidence of painful motion beginning at zero degrees. Abduction was not lost beyond 10 degrees, adduction was not limited such that the Veteran could not cross his legs, and rotation was not limited such that the Veteran could not toe-out more than 15 degrees. The Veteran was able to perform repetitive-use testing with three repetitions. The examiner noted no additional limitation in ROM of the hip and thigh following repetitive-use testing. The Veteran experienced functional loss and/or functional impairment of the hip and thigh, to include less movement than normal and pain on movement. He had localized tenderness or pain to palpation for joints/soft tissue of both hips. The Veteran’s muscle strength testing was normal. There was no muscle atrophy. He did not have ankylosis or malunion or nonunion of femur, flail hip joint, or leg length discrepancy. He did not have a total hip joint replacement, but, in 2009 and again in 2013, he had bilateral labrial repairs. The Veteran had residual signs and/or symptoms due to arthroscopic or other hip surgery, to include limited ROM with painful motion, bilaterally. The Veteran had surgical scars related to his condition; however, the scars were not painful, unstable, and the total area of all related scars were not greater than 39 square cm (6 square inches). There were no other pertinent physical findings, complications, conditions, signs, and/or symptoms related to the Veteran’s hip condition. He did not use any assistive device(s) as a normal mode of locomotion, and functioning was not so diminished that amputation with prosthesis would equally serve the Veteran. Imagining revealed degenerative or traumatic arthritis, bilaterally. The Veteran’s hip condition did not impact his ability to work. Regarding the Mitchell criteria, the examiner stated that he would expect additional loss of 10 degrees of flexion, bilaterally, and five degrees internal rotation, bilaterally, with moderate loss of overall strength and coordination and fatigue due to repetitive movement and flares ups due to pain. In May 2017, the Veteran saw his private physician regarding his bilateral hip disability. The Veteran stated that over the past year, his hips had gradually gotten more painful and bothersome. If he stood for more than about five minutes, his right hip locked anteriorly. To free his hip, he had to force it which caused a painful pop. He walked with a limp. Physical examination revealed no tenderness of the hips. The Veteran’s left hip had limited external rotation compared to the right side. Left hip flexion was from zero to 120 degrees, external rotation 60 degrees, and internal rotation 30 degrees. The examiner noted mild tightness/pain at end internal rotation and with Scour’s testing. The Veteran’s right hip flexion from zero to 120 degrees, external rotation was to 70 degrees, internal rotation was to 30 degrees. The examiner noted positive impingement and Scour’s signs. Bilaterally, the Veteran had good hip flexion strength, without pain. In December 2019, the Veteran saw his private physician regarding his right hip pain. The Veteran complained of occasional sudden catching sensation with sharp pains in his right hip. This occurred a few times per month and happened with walking and was severely painful. He denied any loss of motion. The Veteran was “walking well.” Compared to the left hip, the Veteran experienced pain in his right hip with terminal flexion and internal rotation with positive Scour’s. The Veteran’s flexion was from zero to 120 degrees, external rotation was to 60 degrees and internal rotation to 30 degrees. The Veteran’s hip strength was preserved. In June 2020, the Veteran was afforded a VA examination to determine the severity of his right hip disability. The Veteran reported hip pain. He denied any limits with eating, bathing, grooming, toileting, and dressing but reported limited ROM in his hips and soreness. Because of this, he altered his activities. He stated that he was always sore and stiff in the hips with limited ROM with standing and walking. He reported doing well, but, if he walked longer than an hour and a half, he experienced increased soreness. To help relieve the pain, the Veteran used ice, ibuprofen, and gentle stretching. The examiner confirmed the Veteran’s femoral acetabular impingement syndrome (includes labral tears) diagnosis. The Veteran reported flare-ups of the hip, to include limited motion due to pain with lifting, carrying, bending, or twisting which increased the soreness. He reported functional loss or functional impairment of the joint, to include limited motion due to pain. The Veteran’s bilateral hip flexion was from zero to 100 degrees, extension from zero to 10, abduction from zero to 45 degrees, and adduction from zero to 25 degrees. Adduction was not limited such that the Veteran could not cross legs. Right hip external rotation was from zero to 40 degrees, and internal rotation was from zero to 20 degrees. Left hip external rotation was from zero to 30 degrees, and internal rotation was from zero to 15 degrees. The abnormal ROM itself contributed to functional loss, i.e., limited motion due to pain. The examiner stated that pain was noted on flexion, extension, abduction, adduction, external rotation, and internal rotation and caused functional loss. There was evidence of pain with weight bearing and objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue, i.e., mild tenderness to palpation of the anterior hip. There was no objective evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions, bilaterally. The examiner noted no additional loss of function or ROM after three repetitions. The Veteran was not examined immediately after repetitive use over time or during a flare-up. The examiner stated that the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time or during flare-ups. Pain significantly limited the Veteran’s functional ability with repeated use over a period of time and during flare-ups. After repetitive use testing, the Veteran’s bilateral hip flexion was from zero to 95 degrees, extension from zero to 10, abduction from zero to 45 degrees, and adduction from zero to 25 degrees. Adduction was not limited such that the Veteran could not cross legs. Post-test right hip external rotation was from zero to 40 degrees, and internal rotation was from zero to 20 degrees while left hip external rotation was from zero to 25 degrees, and internal rotation was from zero to 15 degrees. After flare-ups, the Veteran’s bilateral hip flexion was from zero to 90 degrees, extension from zero to 10, abduction from zero to 45 degrees, and adduction from zero to 25 degrees. Post-test adduction was not limited such that the Veteran could not cross legs. Right hip external rotation was from zero to 35 degrees, and internal rotation was from zero to 20 degrees while left hip external rotation was from zero to 25 degrees, and internal rotation was from zero to 10 degrees. Bilaterally, there were no additional contributing factors of the disability. The examiner noted objective evidence of pain, bilaterally, with weightbearing, non-weightbearing, and passive motion. The pain was described as moderate to severe in severity. Bilaterally, the Veteran’s muscle strength testing was normal with no reduction in muscle strength and no muscle atrophy. The Veteran did not have ankylosis or malunion or nonunion of femur, flail hip joint, or leg length discrepancy. In 2010 and 2014, the Veteran had right hip arthroscopic ligament repair, labral repair arthroscopy. He had the same surgery on the left hip in 2010. The residuals of the surgery included limited ROM due to pain. There were no other pertinent physical findings, complications, conditions, signs, or symptoms related to the Veteran’s hip condition. The Veteran had scars related to his disability. However, there was no objective evidence of scars that were painful, unstable, or scars that had a total area equal to or greater than 39 square cm (6 square inches). Additionally, the scars were not located on his head, face, or neck. The Veteran did not use any assistive devices as a normal mode of locomotion, and functioning was not so diminished that amputation with prosthesis would equally serve the Veteran. The Veteran’s disability did not have an impact on his ability to perform any type of occupational task. In his July 2020 Correspondence, the Veteran stated that the June 2020 VA exam which noted flexion of 100 degrees was inaccurate. He stated that after reading the Supplemental Statement in Support of Case and although he lacked the necessary instruments and expertise to perform a clinical examination, he attempted to test his standing hip flexion. He was unable to achieve even half of the flexion indicated on the exam. The examiner noted no crepitus. However, the Veteran stated that the he experienced crepitus in the form of cracking and popping which occurred regularly basis, to include during the VA examination. In January 2021, six weeks after right hip arthroscopy revision with adhesion lysis, the Veteran saw his private physician for a follow up exam. The Veteran was diagnosed with right hip articular cartilage disorders. The Veteran walked well. Bilaterally, hip flexion was from zero to 120 degrees, external rotation to 60 degrees, and internal rotation to 20 degrees. The examiner stated that the Veteran’s strength was returning nicely. The Board has considered the Veteran’s statement regarding the ROM measurement during the June 2020 VA examination. However, although the Veteran believes that his ROM is much less than the VA examination report revealed, the Board finds that the Veteran’s statements are contradicted by the contemporaneous medical records which also reveals ROM testing similar to that on the June 2020 examination report. As such, the Board finds the VA examination to be consistent with the other evidence of record, and is therefore adequate for rating purposes. Based on the evidence of record, the Board finds that a rating in excess of 10 percent for the Veteran’s right hip with arthritis and limitation of extension and internal rotation of the thigh is not warranted. The Board notes that the Veteran is in receipt of the maximum schedular rating under DC 5251. Thus, a higher rating is not available under DC 5251. The Board notes that May 2014 x-rays revealed degenerative or traumatic arthritis. However, the evidence does not support a finding of degenerative arthritis with x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations to warrant a 20 percent rating under DC 5003. The Board notes that the Veteran’s right hip disability is rated as noncompensable under DC 5003-5252 (limitation of flexion) and 5003-5253 (impairment of the thigh). Regarding limitation of flexion, there is no evidence that the Veteran has had limitation of flexion to 45 degrees or less. The record shows that, at worse, his right hip flexion was to no less than 80 or 90 degrees. As such, a compensable disability rating is not warranted under DC 5252. Additionally, the Board notes that abduction was not lost beyond 10 degrees, and adduction was not limited such that the Veteran could not cross his legs. The Board notes that the Veteran’s private physician noted internal rotation limited to 15 degrees; however, there is no evidence that the Veteran had an inability to toe out more than 15 degrees. Therefore, the Board finds that a higher or separate rating is not warranted under DC 5253. The Board recognizes that, under DeLuca v. Brown, 8 Vet. App. 202 (1995), VA must consider “functional loss” of a musculoskeletal disability separately from consideration under the DCs. “Functional loss” may occur as a result of weakness or pain on motion. Here, the evidence shows that pain has been a constant and predominant symptom. The Veteran reported functional loss to include less movement than normal and pain on movement. The Board notes that the June 2020 VA examiner noted objective evidence of pain with weight bearing and non-weight-bearing, and passive motion. Additionally, in his July 2021 statement, the Veteran stated that he experienced crepitus in the form of cracking and popping. However, given the extent of right hip ROM, there is no evidence of a disability picture that is commensurate to a limitation of extension, flexion, and/or rotation to the extent necessary to establish entitlement to a higher disability rating, even after taking his reported pain and crepitus into full consideration. See DeLuca, 8 Vet. App. at 204 -07; 38 C.F.R. §§ 4.40, 4.45, 4.71a, DC 5251. Further, the Board has considered the potential application of the other provisions of 38 C.F.R., Parts 3 and 4. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The Board notes that other criteria for rating hip and thigh disabilities are provided under DCs 5250 (ankylosis), 5254 (flail joint of the hip), and 5255 (impairment of the femur). However, the evidence does not show that the Veteran’s right hip disability manifestations has included ankylosis, flail joint of the hip, or impairment of the femur. Therefore, the Board finds that separate or higher ratings under DCs 5250, 5254, and 5255 are not warranted. The Board notes that the Veteran is in receipt of a separate rating under DC 7805 for scars. However, the Veteran’s scar was not painful, unstable, or had a total area equal to or greater than 39 square cm (6 square inches). As such, a compensable rating under DC 7805 is not warranted. The Board has considered the Veteran and his representative’s statements regarding the severity of the Veteran’s right hip disability. However, as lay persons, they do not have the training or expertise to render a competent opinion which is more probative than the VA examiners’ opinions on this issue, as this is a medical determination that is complex. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994)). Thus, the lay opinions by themselves are outweighed by the VA examiners’ findings and the other evidence of record. See id.; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court’s conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert’s opinion more probative on the issue of medical causation). In sum, the preponderance of the evidence is against the assignment of a rating in excess of 10 percent for the Veteran’s right hip disability. As such, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). REASONS FOR REMAND The Veteran has been diagnosed with bilateral patellofemoral pain syndrome, lumbosacral strain, and left hip femoroacetabular and degenerative arthritis. He contends that his disabilities are secondary to his service-connected right hip disability. In June 2020, the Veteran was afforded a VA examination to determine the nature and etiology of his bilateral knee, left hip, and lumbar spine disabilities. The examiner opined that the claimed conditions are less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner also opined that the claimed conditions are less likely than not aggravated beyond their natural progression by the right hip. The Board notes that the examiner did not opine as to whether the Veteran’s claimed conditions are proximately due to or the result of the Veteran’s service-connected right hip disability. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). As such, the Board finds that a remand is necessary to obtain an addendum opinion. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the June 2020 VA examiner. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The addendum opinion must include a notation that this record review took place. It is up to the discretion of the examiner as to whether a new examination is necessary to provide an adequate opinion. If the examiner is no longer available, obtain an opinion from another appropriate examiner. The examiner is asked to determine if it is at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral hip, lumbar spine, and left hip disabilities are proximately due to or the result of the service-connected right hip disability. 2. If the benefits sought on appeal remain denied, furnish the Veteran and his representative a Supplemental Statement of the Case and allow them an opportunity to respond. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Moore 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.