Citation Nr: 21013896 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 17-51 795 DATE: March 10, 2021 ORDER Prior to November 11, 2020, a compensable rating for left hip, impairment of thigh due to trochanteric pain syndrome with arthritis, is denied. Prior to November 11, 2020, a compensable rating for right hip, impairment of thigh due to trochanteric pain syndrome with arthritis, is denied. After November 11, 2020, a rating greater than 10 percent for left hip, impairment of thigh due to trochanteric pain syndrome with arthritis, is denied. After November 11, 2020, a rating greater than 10 percent for right hip, impairment of thigh due to trochanteric pain syndrome with arthritis, is denied. REMANDED A rating greater than 20 percent for degenerative arthritis of the spine is remanded. FINDINGS OF FACT 1. Prior to November 11, 2020, left and right hip disabilities manifested by subjective complaints of pain; objective findings did not demonstrate limitation of extension to 5 degrees or less, limitation of rotation of the thigh with the inability to toe-out more than 15 degrees, or limitation of adduction with the inability to cross legs, to include due to pain. 2. After November 11, 2020, left and right hip disabilities manifested by subjective complaints of pain accompanied by fatigue, incoordination, lack of endurance, and weakness; objective findings did not demonstrate bilateral limitation of abduction resulting in motion lost beyond 10 degrees. CONCLUSIONS OF LAW 1. Prior to November 11, 2020, the criteria for a compensable rating for left hip, impairment of thigh due to trochanteric pain syndrome with arthritis, have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DCs 5010-5253. 2. Prior to November 11, 2020, the criteria for a compensable rating for right hip, impairment of thigh due to trochanteric pain syndrome with arthritis, have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DCs 5010-5253. 3. After November 11, 2020, the criteria for a rating greater than 10 percent for left hip, impairment of thigh due to trochanteric pain syndrome with arthritis, have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DCs 5010-5253. 4. After November 11, 2020, the criteria for a rating greater than 10 percent for right hip, impairment of thigh due to trochanteric pain syndrome with arthritis, have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DCs 5010-5253. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from January 1991 to May 1991. He had a lengthy period of inactive service with the United States Marine Corps Reserves both prior (dating back to 1953) and subsequent to this period of active service. Historically, these appeals were denied by the Board in February 2019. Upon receipt of a Joint Motion for Partial Remand (JMPR), the Court of Appeals for Veterans Claims (Court) vacated these determinations and remanded the matters for further consideration in January 2020. The Board then remanded these appeals in April 2020 for additional development, specifically ordering new examinations. As those examinations have been completed, there is substantial compliance with the Board’s instructions, such that the case may move forward. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In a January 2021 rating decision, the Veteran was awarded 10 percent ratings for the right and left hip disabilities on appeal. These are not the maximum awards possible, nor has the Veteran indicated that these awards satisfy the appeals before the Board. Thus, the matters remain on appeal. AB v. Brown, 6 Vet. App. 35 (1993). Increased Ratings The Veteran continues to pursue higher ratings for his bilateral hip disabilities. As these appeals require similar analyses, they will be addressed simultaneously herein. Disability ratings are determined by the applications of the VA’s Schedule for Rating Disabilities. 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 service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. During the pendency of these appeals, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised select diagnostic codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran’s claims under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Prior to November 11, 2020 The Veteran is currently in receipt of noncompensable ratings for his bilateral hip disabilities prior to November 11, 2020. His disabilities have been rated in accordance with DC 5010-5253. Generally, hyphenated diagnostic codes are used when an unlisted disability is at issue. See 38 C.F.R. § 4.27. The second diagnostic code provides further detail regarding the origins of the unlisted disability, the bodily functions affected, the symptomatology, and anatomical location. Thus, the diagnostic code following the hyphen is the diagnostic code by which the disability is evaluated by analogy. Here, the Veteran’s disabilities have been rated as impairment of the thigh. Under DC 5253, a 10 percent rating is warranted upon evidence of the following: • Limitation of rotation of the thigh, cannot toe-out more than 15 degrees; or, limitation of adduction of, cannot cross legs. Other diagnostic codes pertaining to the hip are DC 5250 (ankylosis), DC 5254 (flail hip joint), and DC 5255 (malunion of the femur). These disorders are not shown in the record for the period on appeal, such that application of these DCs is not warranted. See July 2017 VA examination. Further, the Veteran is separately service-connected for trochanteric bursitis of the left and right hips per 5019-5251, and limitation of flexion of the left and right hips per DC 5019-5252. These awards are not under appeal at this time, such that further consideration of these DCs as it relates to the current appeals is not warranted. Upon review of the record, compensable evaluations are not warranted for the Veteran’s bilateral hips disabilities under DC 5010-5253. During July 2017 VA examination, adduction of both hips was not so severe that the Veteran was unable to cross his legs, and these results did not change post-testing. Range of motion testing yielded the following results: right hip internal rotation to 35 degrees and external rotation to 45 degrees; and left hip internal rotation to 35 degrees and external rotation to 45 degrees. Repetitive testing did not alter these results. Although pain was reported on both internal and external rotation, related functional impairment did not cause further limitation of motion. Additionally, the examiner did not report that the Veteran could not toe-out more than 15 degrees on either side. Additional treatment records support this disability picture and are silent for limitation of rotation or adduction justifying compensable ratings under DC 5010-5253. Regarding the DeLuca factors, the Board has considered the Veteran’s testimony regarding bilateral hip pain as due to his disabilities. See September and October 2017 lay statements. However, the Board finds that these symptoms are properly embodied in the rating as assigned and do not equate such limitation of motion as to justify increased ratings at this time. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Further, the Board acknowledges the Veteran’s September 2017 contention that the July 2017 VA examiner did not ask him to cross his legs during examination or properly record the severity of his pain. However, the July 2017 examination report clearly includes results pertaining to the Veteran’s capacity to cross his legs. Moreover, the Board’s assessment of these appeals is based upon a review of the record spanning the period on appeal. In this respect, the Veteran’s purported inability to cross his legs is not noted at any other point throughout the record during the relevant timeframe. Of note, the parties’ JMPR contends that the Board’s prior analysis of this factor was inadequate, as an April 2015 VA examination reports that bilateral adduction was so limited that the Veteran was unable to cross his legs. See JMPR, p. 3-4. As an initial matter, these appeals stem from a February 2017 claim for increased ratings. Accordingly, the rating period on appeal extends from February 2016, one year prior to the date of receipt of the claim. 38 C.F.R. § 3.400(o)(2). Thus, the April 2015 VA examination is not sufficiently contemporaneous to the period on appeal as to warrant consideration herein and cannot serve as the basis for a grant of these appeals. Even if the April 2015 examination was relevant to these appeals, the parties’ reporting of this evaluation report is misleading in its incompleteness. True, the examiner reported that bilateral adduction was so limited that the Veteran could not cross his legs, but only after initial range of motion testing. Had the parties offered a more complete recitation of the examination report, they would also have noted that bilateral adduction following repetitive motion testing was not so limited that the Veteran could not cross his legs. Thus, it would appear that the Veteran’s bilateral adduction actually improved with repetitive motion, such that he was not rendered totally unable to cross his legs in all instances. Accordingly, even if the Board had been obligated to consider this VA examination, the results thereof would not serve as a basis upon which to grant these appeals. Also in the JMPR, the parties argued that the Board “failed to address whether the functional loss in [the Veteran’s] hips establishes entitlement to a compensable rating” in accordance with 38 C.F.R. § 4.59. See JMPR, p. 4. In this respect, the Board acknowledges that the July 2017 VA examiner reported bilateral pain upon flexion, extension, abduction, adduction, external rotation and internal rotation. However, it is not apparent that this singular symptom was productive of such functional loss as to equate limitation of rotation of the thigh which rendered the Veteran unable to toe-out more than 15 degrees or cross his legs due to limitation of adduction. Even with the July 2017 examiner’s documentation of pain, at no time was this specific disability picture reported. In instances where the Schedule does not provide a zero percent evaluation for a DC (such as DC 5253), a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. Such is the case here, where the Veteran’s bilateral hip disabilities, even with the presence of pain, do not result in such disability pictures as to warrant compensable ratings under the applicable DC. Moreover, the Veteran is separately in receipt of 10 percent ratings for trochanteric bursitis of the left and right hips under DC 5251. These compensable evaluations are based upon the nature of the Veteran’s disabilities and with full consideration of his subjective reports of pain. See July 2013 rating decision. In other words, the Veteran is already being compensated for his bilateral hip pain; however, this symptom has primarily been attributed to his trochanteric bursitis of the hips, and rated as such. For the above reasons, these appeals are denied. After November 11, 2020 The Veteran is also seeking ratings greater than 10 percent for his bilateral hip disabilities after November 11, 2020. Again, he was rated under DC 5010-5253 during the period on appeal. As an initial matter, the Veteran remained separately service-connected for distinct bilateral hip disabilities under DCs 5019-5251 and 5019-5252 during the period on appeal, such that these DCs are not for application herein. Further, the disorders addressed in DCs 5250 (ankylosis), DC 5254 (flail hip joint), and DC 5255 (malunion of the femur) are not shown in the record for the period on appeal; accordingly, these DCs will not be considered herein. Finally, the criteria for DC 5253 were not altered as part of the amended regulations which went into effect on February 7, 2021. Accordingly, the criteria under which the Veteran is to be evaluated remain intact. Thus, 20 percent ratings are warranted upon evidence of the following: • Limitation of abduction of the thigh, motion lost beyond 10 degrees. Normal ranges of motion of the hip include flexion from 0 degrees to 125 degrees, and abduction from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. Upon review of the record, ratings greater than 10 percent are not warranted for the Veteran’s bilateral hip disabilities after November 11, 2020. The Veteran underwent VA examination in November 2020. Abduction of both hips was recorded to 35 degrees, with pain productive of functional loss. The Veteran was able to perform repetitive use testing, with bilateral abduction then recorded to 30 degrees. Muscle strength testing showed active movement against some resistance bilaterally. There was objective evidence of pain when the hips were used in non-weight bearing and in passive range of motion; however, range of motion results remained identical to those resulting from active range of motion. See Correia v. McDonald, 28 Vet. App. 158 (2016). Additional symptoms such as fatigue, incoordination, lack of endurance, and weakness were reported bilaterally, and estimated to result in abduction to 30 degrees. See DeLuca, 8 Vet. App. at 206-07. At that time, the Veteran estimated his hip pain was a seven out of 10, but worsened during flare-ups aggravated by walking, standing, and the activities of daily living. In a December 2020 addendum, the VA examiner clarified that the Veteran was able to cross his legs following initial range of motion testing bilaterally, but could not do so after repetitive use testing. Notably, the claims file does not contain any VA or private treatment records relevant to the period on appeal. However, in a January 2021 lay statement, the Veteran indicated that he had informed his VA examiner of “occasions of severe pain and inability to stand or walk more than a few steps” before he had to sit or lay down. The identified pain was centrally located in the lower back. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Thus, the Veteran’s disability pictures during the period on appeal are commensurate with the criteria for the 10 percent ratings as currently assigned. There is no evidence that bilateral limitation of abduction resulted in motion lost beyond 10 degrees; rather, bilateral abduction was normal upon objective testing, even with repetitive use. Although the Veteran has reported symptoms of pain, fatigue, incoordination, lack of endurance, and weakness, the November 2020 examiner clearly indicated that these symptoms did not result in additional loss of motion. Additional loss was also denied with non-weight bearing and in passive range of motion. Thus, the Veteran’s disability pictures during the period on appeal are not so severe as to warrant higher ratings in this case. Rather, the nature and severity of his symptoms are properly contemplated in the 10 percent ratings as currently assigned, and the appeals are hereby denied. In his January 2021 statement, the Veteran noted his confusion that “consideration of functional loss of mobility would NOT be considered under such circumstances.” See also JMPR, p. 4 (arguing that the Board failed to consider functional loss in determining whether compensable ratings were warranted for the disabilities at issue). To clarify, the Board has directly contemplated functional loss due to his bilateral hip disabilities during the period on appeal. See DeLuca, 8 Vet. App. at 206-07. The above determination is not based upon a finding that the Veteran demonstrates no functional loss due to his disabilities; rather, the observed functional loss does not result in such a disability picture as to equate abduction resulting in motion lost beyond 10 degrees, even during flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Moreover, the Veteran’s January 2021 reports of pain and related impairment cannot solely be attributed to the disabilities at issue, as his description as to the location of his pain focuses on his lower back rather than his hips. Thus, the degree of functional impairment demonstrated by the Veteran is properly compensated in the 10 percent ratings as currently assigned. In offering the above conclusions, the Board has considered the Veteran’s testimony regarding the severity of his symptoms. While he is competent to report symptoms capable of lay observation, he is not competent to identify a specific level of disability according to the applicable DCs. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno, 6 Vet. App. at 470. Instead, greater probative value is offered to the medical evidence in assessing the severity of the Veteran’s disabilities, as the examiners possess the requisite expertise to render opinions regarding the degree of impairment caused by the Veteran’s disabilities and had sufficient facts and data on which to base the conclusions. In this respect, the Board finds that the medical evidence supports the determinations offered above. Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Although the Board sincerely regrets the additional delay this will cause, further development is necessary prior to the adjudication of the remaining appeal. In their JMPR, the parties noted that a July 2017 VA examination was inadequate because the examiner stated that pain could not be tested in passive range of motion or in a non-weight bearing mode, but failed to explain why such testing could not be performed. This exact deficiency is also present in a subsequent November 2020 VA examination, where the identified testing was not provided but no rationale for such was offered. Additionally, the November 2020 examiner diagnosed the Veteran with intervertebral disc syndrome (IVDS). However, the amended regulations offer a specific definition for this diagnosis, which is not clearly considered by the examiner. Thus, a remand of this matter is required. The matter is REMANDED for the following action: Schedule the Veteran for a VA examination to assess the current severity of his service-connected back disability. The claims folder must be provided to the examiner in conjunction with the examination. All necessary tests and studies should be conducted. This examination must address the inadequacies of the November 2020 evaluation; thus, the examiner must only address the following: (a.) Does the Veteran demonstrate IVDS with disc herniation with compression and/or irritation of the adjacent nerve root? (b.) Is there objective evidence of pain when the back is used in non-weight bearing? (i.) If so, can passive range of motion for the back be performed/is it medically appropriate? If so, range of motion results should be provided. If not, the examiner MUST explain why such testing cannot be performed or is medically inappropriate. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Kovarovic, 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.