Citation Nr: 21015123
Decision Date: 03/16/21	Archive Date: 03/16/21

DOCKET NO. 17-62 781
DATE: March 16, 2021

ORDER

Entitlement to a compensable rating for erectile dysfunction is denied.

Entitlement to a compensable rating for hypertension is denied.

Entitlement to a compensable rating for bilateral hearing loss is denied.

Entitlement to a rating in excess of 10 percent for bilateral glaucoma is denied.

Entitlement to a rating in excess of 10 percent for postoperative left hernia repair residuals is denied.

Prior to August 14, 2019, entitlement to a compensable rating for left inguinal hernia scar is denied.

Entitlement to a rating in excess of 10 percent for right shoulder and left inguinal region scars from August 14, 2019 is denied.

Entitlement to a rating in excess of 40 percent for degenerative disc disease (DDD) of the lumbar spine is denied.

Entitlement to a rating in excess of 10 percent for degenerative joint disease (DJD) of the right knee is denied.

Entitlement to a rating in excess of 10 percent for DJD of the left knee is denied.

Prior to July 4, 2018, entitlement to a rating in excess of 20 percent for DJD disease of the right shoulder is denied.

From July 4, 2018, entitlement to a rating of 30 percent for DJD of the right shoulder is granted; subject to the laws and regulations governing the payment of monetary benefits.

Entitlement to a rating in excess of 20 percent for DJD of the left shoulder is denied.

Entitlement to a compensable rating for DJD of the right hip with limitation of extension is denied.

Entitlement to a rating in excess of 10 percent for DJD of the right hip with limitation of flexion from February 10, 2015 to February 17, 2020 is denied.

Entitlement to a compensable rating for DJD of the right hip with limitation of flexion from February 18, 2020 is denied.

Entitlement to a compensable rating for DJD of the right hip with limitation of abduction from February 10, 2015 to February 17, 2020 is denied.

Entitlement to a rating in excess of 20 percent for DJD of the right hip with limitation of abduction from February 18, 2020 is denied.

Entitlement to a compensable rating for DJD of the left hip with limitation of extension is denied.

Entitlement to a rating in excess of 10 percent for DJD of the left hip with limitation of flexion is denied.

Entitlement to a compensable rating for DJD of the left hip with limitation of abduction is denied.

FINDINGS OF FACT

1. Throughout the period on appeal, the Veteran’s erectile dysfunction is manifested by loss of erectile power, but not by penis deformity.  

2. Throughout the period on appeal, the Veteran’s hypertension required continuous medication, but has not manifested by diastolic pressure predominantly 100 or more or systolic pressure predominantly 160 or more. 

3. Throughout the period on appeal, the Veteran’s bilateral hearing loss is manifested by hearing acuity no worse than level II in the right ear and level II in the left ear.

4. Throughout the period on appeal, the average concentric contraction of the Veteran’s visual field was, at worst, 54 degrees in the right eye and 52 degrees in the left eye.  Corrected distance vision was, at worst, 20/40 in the right eye and 20/40 in the left eye.  There is no evidence of impairment of muscle function or incapacitating episodes.

5. Throughout the period on appeal, the Veteran’s postoperative left hernia repair  residuals are no longer recurrent, nor do they require support by a truss or belt.

6.  Prior to August 14, 2019, the Veteran’s left inguinal hernia has been stable, not painful, and less than 39 square centimeters (sq. cm.) in area.

7. From August 14, 2019, the Veteran has two painful scars, right shoulder and left inguinal region, that are stable and less than 39 sq. cm. in area. 

8. Throughout the period on appeal, the Veteran’s lumbar spine disability is manifested by forward flexion of the thoracolumbar spine to 40 degrees, but not by  ankylosis. 

9. Throughout the period on appeal, the Veteran’s right knee disability is manifested by painful motion, but not by flexion limited to 30 degrees or extension limited to 15 degrees.

10. Throughout the period on appeal, the Veteran’s left knee disability is manifested by painful motion, but not by flexion limited to 30 degrees or extension limited to 15 degrees.

11. Prior to July 4, 2018, the Veteran’s right shoulder disability was manifested by limitation of motion of the right arm to shoulder level or greater.

12. From July 4, 2018, the Veteran’s right shoulder disability is manifested by limitation of motion of the right arm to midway between the side and shoulder level.

13. Throughout the period on appeal, the Veteran’s left shoulder disability is manifested by limitation of motion of the left arm to midway between the side and shoulder level.

14. Throughout the period on appeal, the Veteran’s right hip extension is limited to, at worst, 10 degrees.

15. From February 10, 2015 to February 17, 2020, the Veteran’s right hip is manifested by painful motion, but not by flexion limited to 30 degrees or less.

16. From February 18, 2020, the Veteran’s right hip flexion is limited to, at worst, 70 degrees.

17. From February 10, 2015 to February 17, 2020, the Veteran’s right hip is limited to, at worst, 30 degrees in abduction, 15 degrees in adduction, 60 degrees in external rotation, and 30 degrees in internal rotation.

18. From February 18, 2020, the Veteran’s right hip is limited to, at worst, 10 degrees in abduction, 10 degrees in adduction, 20 degrees in external rotation, and 30 degrees in internal rotation.

19. Throughout the period on appeal, the Veteran’s left hip extension is limited to, at worst, 10 degrees.

20. Throughout the period on appeal, the Veteran’s left hip flexion is manifested by painful motion, but not by flexion limited to 30 degrees or less.

21. Throughout the period on appeal, the Veteran’s left hip abduction is limited to, at worst 15 degrees in abduction, 10 degrees in adduction, 40 degrees in external rotation, and 10 degrees in internal rotation, but not my abduction limited to 10 degrees or less.

CONCLUSIONS OF LAW

1. The criteria for a compensable rating for erectile dysfunction are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.3, 4.7, 4.31, 4.115b, Diagnostic Code 7522 (2019).  

2. The criteria for a compensable rating for hypertension are not met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.3, 4.7, 4.31, 4.104, Diagnostic Code 7101 (2019). 

3. The criteria for a compensable rating for bilateral hearing loss are not met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2019).  

4. The criteria for a rating in excess of 10 percent for bilateral glaucoma are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.75-4.79, Diagnostic Code 6013.

5. The criteria for a rating in excess of 10 percent postoperative left inguinal hernia repair residuals are not met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.3, 4.7, 4.114, Diagnostic Code 7338 (2019).

6. Prior to August 14, 2019, the criteria for a compensable rating for left inguinal hernia scar are not met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.3, 4.7, 4.118, Diagnostic Code 7805 (2019).

7. From August 14, 2019, the criteria for a rating in excess of 10 percent for right shoulder and left inguinal region scars are not met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.3, 4.7, 4.118, Diagnostic Code 7804 (2019).

8. The criteria for a rating in excess of 40 percent for DDD of the lumbar spine are not met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.3, 4.7, 4.71a, Diagnostic Code 5242 (2019).

9. The criteria for a rating in excess of 10 percent for DJD of the right knee are not met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.3, 4.7, 4.71a, Diagnostic Code 5003 (2019). 

10. The criteria for a rating in excess of 10 percent for DJD of the left knee are not met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.3, 4.7, 4.71a, Diagnostic Code 5003 (2019).

11. Prior to July 4, 2018, the criteria for a rating in excess of 20 percent for DJD of the right shoulder are not met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.3, 4.7, 4.71a, Diagnostic Code 5201 (2019). 

12. From July 4, 2018, the criteria for a 30 percent rating for DJD of the right shoulder are met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.3, 4.7, 4.71a, Diagnostic Code 5201 (2019). 

13. The criteria for a rating in excess of 20 percent for DJD of the left shoulder are not met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.3, 4.7, 4.71a, Diagnostic Code 5201 (2019).  

14. The criteria for a compensable rating for DJD of the right hip with limitation of extension are not met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1-4.3, 4.7, 4.14, 4.31, 4.71a, Diagnostic Code 5251 (2019).  

15. The criteria for a rating in excess of 10 percent for DJD of the right hip with limitation of flexion from February 10, 2015 to February 17, 2020 are not met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1-4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5252 (2019).  

16. The criteria for a compensable rating for DJD of the right hip with limitation of flexion from February 18, 2020 are not met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1-4.3, 4.7, 4.14, 4.31, 4.71a, Diagnostic Code 5252 (2019).  

17. The criteria for a compensable rating for DJD of the right hip with limitation of abduction from February 10, 2015 to February 17, 2020 are not met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1-4.3, 4.7, 4.14, 4.31, 4.71a, Diagnostic Code 5253 (2019).  

18. The criteria for a rating in excess of 20 percent for DJD of the right hip with limitation of abduction from February 18, 2020 are not met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1-4.3, 4.7, 4.71a, Diagnostic Code 5253 (2019).   

19. The criteria for a compensable rating for DJD of the left hip with limitation of extension are not met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1-4.3, 4.7, 4.14, 4.31, 4.71a, Diagnostic Code 5251 (2019).  

20. The criteria for a rating in excess of 10 percent for DJD of the left hip with limitation of flexion are not met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1-4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5252 (2019).  

21. The criteria for a compensable rating for DJD of the left hip with limitation of abduction are not met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1-4.3, 4.7, 4.14, 4.31, 4.71a, Diagnostic Code 5253 (2019).  

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from January 1980 to May 1980 and from July 2006 to March 2009.  These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) and were previously remanded by the Board in October 2019.

The Board’s October 2019 remand directed the RO to afford the Veteran new VA examinations as to the claimed above-mentioned issues.  The Board finds that there has been substantial compliance with its October 2019 remand directives, and it will proceed with adjudication of the issues on appeal.  Stegall v. West, 11 Vet. App. 268 (1998).

In its October 2019 decision, the issues of entitlement to service connection for right and left foot disabilities were remanded for further development.  In an August 2020 rating decision, service connection was granted for right and left foot disabilities.  This represents a full grant of the benefits sought, and the issues are no longer in appellate status.  See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997).

The August 2020 rating decision also assigned a separate service-connected noncompensable evaluation for right hip disability with limitation of abduction effective February 10, 2015, with a 20 percent evaluation assigned from February 18, 2020; a separate service-connected noncompensable evaluation for right hip disability with limitation of extension effective February 10, 2015; a separate service-connected noncompensable evaluation for left hip disability with limitation of abduction effective February 10, 2015; a separate noncompensable service-connected evaluation for left hip disability with limitation of extension effective February 10, 2015; a separate 10 percent evaluation for painful scars, right shoulder and left inguinal region effective August 14, 2019; and decreased the evaluation for right hip disability with limitation of flexion from 10 percent to noncompensable effective February 18, 2020.  As the rating periods for right and left hip disabilities from February 10, 2015, prior to February 18, 2020, and from February 18, 2020, as well as the rating period for painful scars, right shoulder and left inguinal region from August 14, 2019 are not the maximum allowable, the issues remain on appeal.  AB. v. Brown, 6 Vet. App. 35 (1993).

The Board notes that in November 2015, Attorney J. Michael Woods was appointed as the Veteran’s representative through a VA Form 21-22a.  In October 2020, Attorney Woods informed VA that he wished to withdraw his representation of the Veteran.  The record fails to show that representation has been withdrawn in accordance with 38 C.F.R. §§ 20.6(b); 14.631.  Following certification of an appeal to the Board, a representative may not withdraw representation without good cause shown.  Absent proper compliance with these directives, the Board finds that Attorney Woods remains the Veteran’s properly appointed representative.

Increased Ratings

Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2019).  The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment.  38 C.F.R. § 4.10 (2019).

The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Where there is a question as to which of two ratings shall be applied, the higher rating 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 (2019).  However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided.  38 C.F.R. § 4.14 (2019).

While the Veteran’s entire history is reviewed when making a disability determination, where service connection has already been established and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  However, staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

1. Entitlement to a compensable rating for erectile dysfunction 

The Veteran seeks a higher rating for his service-connected erectile dysfunction, which is currently rated as noncompensable under Diagnostic Code 7522 (Penis deformity, with loss of erectile power).  38 C.F.R. § 4.115b, Ratings of the genitourinary system.  

As Diagnostic Code 7522 does not provide rating criteria for a noncompensable rating, a noncompensable rating will be assigned when the requirements for a compensable rating are not met.  38 C.F.R. § 4.31.  Under Diagnostic Code 7522, a 20 percent rating is assigned for evidence of penis deformity with loss of erectile power.  38 C.F.R. § 4.115b.   

Based on a review of the relevant evidence, the Board finds that a compensable rating for erectile dysfunction is not warranted.  Specifically, the April 2015 and February 2020 VA examiners found that the Veteran’s erectile dysfunction causes loss of erectile power.  However, the examiners did not find evidence of penis deformity.  Moreover, post-service VA and private treatment records for the period on appeal are silent for evidence of penis deformity.  Here, the 2015 and 2020 VA examinations and post-service treatment records reflect loss of erectile power, which is consistent with the current noncompensable rating assigned under Diagnostic Code 7522.  The probative evidence of record does not demonstrate that the Veteran’s erectile dysfunction causes penis deformity.  Accordingly, a compensable rating is not warranted.   

In conclusion, as the Board finds that the preponderance of the evidence is against the Veteran’s claim for a compensable rating for erectile dysfunction under Diagnostic Code 7522, the claim must be denied.  In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable.  38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 

2. Entitlement to a compensable rating for hypertension

The Veteran seeks a higher rating for his service-connected hypertension, which is currently rated as noncompensable under Diagnostic Code 7101 (Hypertensive vascular disease).  38 C.F.R. § 4.104, Schedular of ratings – cardiovascular system.  Under this diagnostic code, a 10 percent rating is assigned for diastolic pressure predominately 100 or more or systolic pressure predominantly 160 or more or; minimum evaluation for a history of diastolic blood pressure predominately 100 or more requiring continuous medication.  Id.  A 20 percent rating is assigned for diastolic readings of predominantly 110 or more, or systolic readings of 200 or more.  Id.  A 40 percent rating is assigned for diastolic readings of predominantly 120 or more.   Id.  A 60 percent rating, the highest schedular rating allowed, is assigned for diastolic readings of predominantly of 130 or more.  Id. 

Under the provisions of 38 C.F.R. § 4.31, in every instance where the schedule does not provide for a 0 percent rating, such an evaluation will be assigned when the requirements for a compensable evaluation have not been met. 

Based on a review of the relevant evidence, the Board finds that a compensable rating for the Veteran’s hypertension is not warranted.  While the medical evidence of record for the period on appeal reflects that the Veteran is treated with medication to manage his hypertension, a 10 percent rating also requires a history of diastolic pressure predominantly 100 or more.  Here, out of the numerous blood pressure readings recorded throughout the Veteran's post-service VA and private treatment records and April 2015 and February 2020 VA examinations, none reflect diastolic pressure predominantly 100 or more, nor do they demonstrate systolic pressure predominantly 160 or more.  Specifically, diastolic readings predominantly range between 73 and 92, and systolic readings predominantly range between 118 and 158. 

The Board acknowledges that it may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria.  See Jones v. Shinseki, 26 Vet. App. 56, 62-63 (2012).  However, where the plain language of the diagnostic code contemplates the effects of medication, Jones is not applicable.  See McCarroll v. McDonald, 28 Vet. App. 267, 271-73 (2016) (the Board may properly consider ameliorative effects of blood pressure medication in adjudicating claims for increased ratings for hypertension, because medication is specifically mentioned in Diagnostic Code 7101). 

In sum, there is no evidence to support a finding of diastolic pressure predominantly 100 or more or systolic pressure predominantly 160 or more to warrant a compensable rating for the Veteran’s hypertension under Diagnostic Code 7101.  Accordingly, as the Board finds that the preponderance of the evidence is against the Veteran’s claim for a compensable rating for hypertension, the claim must be denied.  In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable.  38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

3. Entitlement to a compensable rating for bilateral hearing loss

The Veteran seeks a higher rating for his service-connected bilateral hearing loss, which is currently rated as noncompensable under Diagnostic Code 6100.  38 C.F.R. § 4.85, Evaluation of hearing impairment. 

Disability ratings for service-connected hearing impairments are determined through a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are made.  Bruce v. West, 11 Vet. App. 405 (1998); Lendenmann v. Principi, 3 Vet. App. 345 (1992).  The regulations set forth eleven auditory acuity levels, designated from Roman numerals I to XI, in escalating order of hearing impairment.  See 38 C.F.R. § 4.85. The appropriate auditory level is identified as the point where the percentage of speech discrimination and puretone threshold average intersect.  Id.  The regulations also provide that in cases of exceptional hearing loss, i.e., when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz (Hz)) is 55 decibels (dB) or more, the Roman numeral designation will be determined from either Table VI or Table VIA, whichever results in the higher numeral.  38 C.F.R. § 4.86(a).  Likewise, a Roman numeral designation will be determined from either Table VI or Table VIA, whichever results in the higher numeral, when the puretone threshold is 30 dB or less at 1000 Hz, and 70 dB or more at 2000 Hz.  That numeral will then be elevated to the next higher Roman numeral.  38 C.F.R. § 4.86(b). 

For speech recognition scores to be valid for VA disability rating purposes, an examiner must utilize the Maryland CNC word list in performing the examination. 38 C.F.R. § 4.85(a). 

Based on a review of the relevant evidence, the Board finds that a compensable rating for bilateral hearing loss is not warranted.  Specifically, during the Veteran’s April 2015 VA examination, puretone thresholds, in decibels, were as follows: 

  	 	 	HERTZ	 	 

 	500	1000	2000	3000	4000

RIGHT	10	5	25	60	70

LEFT	10	5	10	55	60

Those results show an average puretone threshold of 40 dB in the right ear and 33 dB in the left ear.  Speech recognition ability was 84 percent in the right ear and 84 percent in the left ear, using the Maryland CNC Test.  These audiometry test results equate to level II hearing impairment in the right ear and level II hearing impairment in the left ear, using Table VI.  38 C.F.R. § 4.85.  Regarding the impact of the Veteran’s hearing loss on his daily activities or employment, the Veteran reported difficulty hearing, where he must ask others to repeat themselves. 

During the Veteran’s February 2020 VA examination, puretone thresholds, in decibels, were as follows: 

  	 	 	HERTZ	 	 

 	500	1000	2000	3000	4000

RIGHT	15	20	40	70	75

LEFT	20	20	30	65	65

Those results show an average puretone threshold of 51 dB in the right ear and 45 dB in the left ear.  Speech recognition ability was 96 percent in the right ear and 96 percent in the left ear, using the Maryland CNC Test.  These audiometry test results equate to level I hearing impairment in the right ear and level I hearing impairment in the left ear, using Table VI.  38 C.F.R. § 4.85.  Regarding the impact of the Veteran’s hearing loss on his daily activities or employment, the Veteran reported difficulty hearing, which impacts his ability to focus.

Post-service treatment records for the period on appeal are silent for additional audiological testing results. 

Applying the clinical findings of the 2015 and 2020 VA audiological examinations to Table VII, i.e., a noncompensable evaluation is assigned.  Specifically, the point where the Roman numeral designations for each ear intersect indicates a zero percent evaluation.  The Veteran’s right ear and left ear hearing impairment corresponds to no higher than an auditory acuity of Level II in his right ear and Level II in his left ear.  No exceptional pattern of hearing loss exists to warrant a compensable rating. 

The Board is sympathetic to the Veteran’s position that a higher rating is warranted for his bilateral hearing loss.  However, the audiometric examination result, as compared to the rating criteria, does not warrant a compensable rating during the appeal period.  In conclusion, as the Board finds that the preponderance of the evidence is against the Veteran’s claim for a compensable rating for bilateral hearing loss under Diagnostic Code 6100, the claim must be denied.  In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable.  38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 

4. Entitlement to a rating in excess of 10 percent for bilateral glaucoma

The Veteran seeks a higher rating for his service-connected bilateral glaucoma, which is currently rated as 10 percent disabling under Diagnostic Code 6013 (Open-angle glaucoma).  38 C.F.R. § 4.79, Schedule of ratings – eyes.

During the pendency of the appeal, VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that addresses the organs of special sense and schedule of ratings-eye.  89 Fed. Reg. 15316 (Apr. 10, 2018).  The final rule went into effect May 13, 2018.  Where there is a change in the rating criteria during the appeal period, the Board will consider the claim in light of both the former and revised schedular rating criteria, although an increased evaluation based on the revised criteria cannot predate the effective date of the amendments.

Both the former and revised criteria provide for consideration of visual impairment, which is based on impairment of visual acuity (excluding developmental errors of refraction), visual field, and muscle function.  38 C.F.R. § 4.75(a).  The amendments made no substantive changes to how visual acuity is rated.  With regard to visual field and muscle function examinations, the use of a Goldmann chart is no longer required.  There are otherwise no substantive changes to how those types of visual impairment are rated.    

Under both the former and revised criteria for Diagnostic Code 6066, visual acuity, a 20 percent rating is assigned when visual acuity in one eye (the poorer eye) is 20/70, and vision in the other eye is 20/50; when visual acuity in one eye (the poorer eye) is 20/100, and vision in other eye is 20/50; when visual acuity in one eye (the poorer eye) is 20/200, and vision in the other eye is 20/40; or when visual acuity in one eye (the poorer eye) is 15/200, and vision in the other eye is 20/40.  38 C.F.R. § 4.79.

Regarding impairment of the field of vision, 38 C.F.R. § 4.76a, Table III, provides that the normal visual field extant at the 8 principal meridians totals 500 degrees. The normal values for the 8 principal meridians are as follows: 85 degrees temporally; 85 degrees down temporally; 65 degrees down; 50 degrees down nasally; 60 degrees nasally; 55 degrees up nasally; 45 degrees up; and 55 degrees up temporally.  The extent of visual field contraction in each eye is determined by recording the extent of the remaining visual fields in each of the eight principal meridians.   

Under both the former and revised criteria for Diagnostic Code 6080, when the remaining visual field is 46 to 60 degrees bilaterally or unilaterally, a 10 percent disability rating is assigned, or each affected eye may be evaluated as 20/50.  38 C.F.R. § 4.79.  When the remaining visual field is 31 to 45 degrees unilaterally or bilaterally, 10 percent and 30 percent disability ratings are assigned respectively, or each affected eye may be evaluated as 20/70.  Id.  When the remaining visual field is 16 to 30 degrees unilaterally or bilaterally, 10 percent and 50 percent disability ratings are assigned respectively, or each affected eye may be evaluated as 20/100.  Id.  When the remaining visual field is 6 to 16 degrees unilaterally or bilaterally, 20 percent and 70 percent disability ratings are assigned respectively, or each affected eye may be evaluated as 20/200.  Id.  

When both decreased visual acuity and visual field defect are present in one or both eyes and are service connected, the visual acuity and visual field defect are separately evaluated and combined under the provisions of 38 C.F.R. § 4.25.  38 C.F.R. § 4.77(c). 

Under the former criteria, Diagnostic Code 6013 instructed to evaluate open-angle glaucoma based upon visual impairment.  Under the revised criteria, Diagnostic Code 6013 instructs to evaluate open-angle glaucoma under the General Rating Formula for Diseases of the Eye, with a minimum evaluation of 10 percent if continuous medication is required.  38 C.F.R. § 4.79.  The General Rating Formula for Diseases of the Eye instructs to evaluate on the basis of either visual impairment due to a particular condition or incapacitating episodes, whichever results in a higher evaluation.  Id.  Thus, the primary difference between the former and revised criteria is consideration of incapacitating episodes.

Based on a review of the relevant evidence, the Board finds that a rating in excess of 10 percent for bilateral glaucoma is not warranted.  Specifically, the medical evidence of record, to include the April 2015 and February 2020 VA examinations and post-service treatment records, reflects corrected distance measuring no more than 20/40 in the right eye and 20/40 in the left eye.  Further, the medical evidence of record is silent for evidence of visual acuity of at least 20/50 in one eye and 20/50 in the other eye.  When applying visual acuity of 20/40 for the right eye and 20/40 for the left eye, under Diagnostic Code 6066, a noncompensable rating is warranted for visual acuity.   

Additionally, the February 2020  VA examiner indicated the presence of bilateral visual field defects.  For the 2020 VA examination, Goldmann perimetry as to the Veteran’s right eye showed the remaining visual fields were, in degrees:  80 temporally, 80 down temporally, 45 down, 40 down nasally, 42 nasally, 48 up nasally, 45 up, and 55 up temporally.  Adding the remaining visual field at each principal meridian results in a total remaining visual field of 435.  Dividing 435 by 8 and rounding to the nearest whole number, results in an average concentric contraction of 54 degrees of the visual field for the right eye.  Goldmann perimetry testing as to the Veteran’s left eye showed the remaining visual fields were in degrees:  70 temporally, 70 down temporally, 55 down, 40 down nasally, 38 nasally, 41 up nasally, 45 up, and 55 up temporally.  Adding the remaining visual field at each principal meridian results in a total remaining visual field of 414 degrees.  Dividing 414 by 8 and rounding to the nearest whole number, results in an average concentric contraction of 52 degrees of the visual field for the left eye.   

The Veteran’s visual field defect may be evaluated based on either remaining visual field degrees or based on visual acuity assigned for remaining visual field degrees, whichever results in the higher rating.  As the Veteran’s remaining visual field during the period on appeal was, at worst, 54 degrees, in his right eye and 52 degrees in his left eye, a 10 percent rating is warranted for bilateral visual field defect with remaining visual field for both eyes between 46 and 60 degrees.  However, remaining visual field criteria also instructs to evaluate the Veteran’s right eye and left eye each as 20/50, as his average remaining visual field is 54 degrees in the right eye and 52 degrees in the left eye (when remaining visual field is 46 to 60 degrees, each affected eye is evaluated as 20/50).  When applying visual acuity of 20/50 for the right eye and 20/50 for the left eye to determine visual field defect, a 10 percent rating would be warranted.  Thus, taking the higher of the two evaluations (10 percent based on a bilateral rating for remaining visual field of 54 degrees for the right eye and remaining visual field of 52 degrees for the left eye, or 10 percent based on applying visual acuity of 20/50 for the right eye and 20/50 for the left eye), here, both instances result in a 10 percent evaluation for bilateral visual field defect.   

As the amended regulations went into effect during the rating period on appeal, both the former and revised criteria under Diagnostic Code 6013 are for consideration.  Under the former and revised criteria for Diagnostic Code 6013, the Veteran’s open-angle glaucoma is evaluated based upon visual impairment.  To the determine the evaluation for visual impairment when both decreased visual acuity and visual field defect are present, VA separately evaluates the visual acuity and visual field defect (expressed as a level of visual acuity) and combines them under the provisions of 38 C.F.R. § 4.25.  Thus, when combining the Veteran’s noncompensable rating for his visual acuity impairment with his 10 percent rating for his visual field defect, a 10 percent rating is achieved under both the former and revised criteria for Diagnostic Code 6013.  Further, as the medical evidence of record during the period on appeal is silent for any incapacitating episodes, a higher rating under the revised criteria is not warranted.  Alternatively, Diagnostic Code 6013 also instructs to award a minimum evaluation of 10 percent where there is a requirement for continuous medication to treat open-angle glaucoma.  Here, the 2015 and 2020 VA examinations reflect treatment with continuous medication for the Veteran’s open-angle glaucoma.  However, this 10 percent rating is not to be awarded in addition to a 10 percent rating for visual impairment, as that would result in pyramiding.  38 C.F.R. § § 4.14.  Therefore, neither the former nor the revised criteria for Diagnostic Code 6013 is more favorable then the other, as they both result in a 10 percent rating being warranted for the Veteran’s bilateral glaucoma.  As such, the currently assigned 10 percent rating as to the Veteran’s bilateral glaucoma for the period on appeal is appropriate, and the Veteran is not entitled to a higher rating under the prior or revised criteria for Diagnostic Code 6013.  

In sum, as the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for bilateral glaucoma, the claim must be denied.  In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable.  38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.  

5. Entitlement to a rating in excess of 10 percent for postoperative left inguinal hernia repair residuals

The Veteran seeks a higher rating for his service-connected postoperative left inguinal hernia repair residuals, which are currently rated as 10 percent disabling under Diagnostic Code 7338 (Hernia, inguinal).  38 C.F.R. § 4.114, Schedule of ratings – digestive system.  Under this diagnostic code, a 10 percent rating is assigned for evidence of postoperative recurrent inguinal hernia, readily reducible and well supported by truss or belt.  Id.  A 30 percent rating is assigned for small, postoperative recurrent inguinal hernia, or unoperated irremediable inguinal hernia, not well supported by truss, or not readily reducible.  Id.  A 60 percent rating, the highest schedular rating allowed, is assigned for evidence of large, postoperative, recurrent inguinal hernia, not well supported under ordinary conditions and not readily reducible, when considered inoperable.  Id.

Based on a review of the relevant evidence, the Board finds that a rating in excess of 10 percent for the Veteran’s postoperative left hernia repair residuals is not warranted.  Specifically, the April 2015 and February 2020 VA examinations reflect that the Veteran’s postoperative left hernia repair residuals are no longer recurrent, nor do they require support by a truss or belt.  On the contrary, both VA examiners noted that a left hernia was not detected upon examination.  Moreover, post-service VA and private treatment records for the period on appeal show improvement in the Veteran’s left inguinal hernia since onset in 2008.  As the record is silent for evidence of either a small postoperative recurrent left inguinal hernia or an unoperated irremediable left inguinal hernia that is not well supported by a truss and is not readily reducible, a higher rating for the Veteran’s postoperative left inguinal hernia repair residuals is not warranted.  While the  medical evidence of record demonstrates significant improvement in the Veteran’s left inguinal hernia residuals, as noted in both the 2015 and 2020 VA examinations and post-service VA treatment records, the Board will not disturb the 10 percent disability rating currently assigned based upon prior evidence of postoperative recurrent left inguinal hernia that is readily reducible and well supported by a truss or belt. 

Accordingly, as the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for postoperative inguinal hernia residuals, the claim must be denied.  In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable.  38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

6. Entitlement to a compensable rating for left inguinal hernia scar prior to August 14, 2019

The Veteran seeks a higher rating for his service-connected left inguinal hernia scar, which is currently rated as noncompensable under Diagnostic Code 7805 prior to August 14, 2019. 

The diagnostic criteria for disorders of the skin are found at 38 C.F.R. § 4.118, Diagnostic Codes 7800 to 7805 (2019).  Diagnostic Code 7805 instructs that any disabling effects not considered in a rating provided under Diagnostic Codes 7800 through 7804 should be evaluated under an appropriate diagnostic code. 

Diagnostic Code 7800 is not for application, as the Veteran's left inguinal hernia scar is not of the head, face, or neck.  38 C.F.R. § 4.118. 

Diagnostic Code 7801 applies to scars not of the head, face, or neck, that are associated with underlying soft tissue damage.  38 C.F.R. § 4.118.  A 10 percent rating is assigned for an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.).  Id.  A 20 percent rating is assigned for an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.).  Id.  A 30 percent rating is assigned for an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.).  Id.  A 40 percent maximum rating is assigned for an area or areas of 144 square inches (929 sq. cm.) or greater.  Id. 

Diagnostic Code 7802 applies to scars not of the head, face, or neck, that are not associated with underlying soft tissue damage.  38 C.F.R. § 4.118.  A maximum 10 percent rating is assigned for an area or areas of 144 square inches (929 sq. cm.) or greater.  Id. 

Diagnostic Code 7804 applies to unstable or painful scars.  38 C.F.R. § 4.118.  A 10 percent rating is assigned for one or two scars that are unstable or painful.  Id.  A 20 percent rating is assigned for three or four scars that are unstable or painful.  Id.  A 30 percent maximum rating is assigned for five or more scars that are unstable or painful.  Id. 

Based on a review of the relevant evidence, the Board finds that, prior to August 14, 2019, a compensable rating for the Veteran's left inguinal hernia scar is not warranted.  The April 2015 VA examination showed a left inguinal scar which was not tender or unstable and did not measure 39 sq. cm. or more.  A linear scar was seen on the Veteran’s anterior trunk measuring 7.0 cm by 0.3 cm.  Post-service treatment records are also silent for evidence of a painful or unstable left inguinal hernia scar measuring 39 sq. cm. or more. 

The Board has considered whether a higher rating or an additional rating is warranted under an alternative diagnostic code but finds that, prior to August 14, 2019, the Veteran’s left inguinal hernia scar is not productive of pain, an unstable scar, an affected area of at least 39 sq. cm., or underlying soft tissue damage.  As such, the currently assigned noncompensable rating for left inguinal hernia scar under Diagnostic Code 7805 is appropriate.    

In conclusion, as the Board finds that the preponderance of the evidence is against the Veteran’s claim for a compensable rating for left inguinal hernia scar prior to August 14, 2019, the claim must be denied.  In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable.  38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 

7. Entitlement to a rating in excess of 10 percent for right shoulder and left inguinal region scars from August 14, 2019

The Veteran seeks a higher rating for his service-connected right shoulder and left inguinal region scars, which are currently rated as 10 percent disabling under Diagnostic Code 7804 from August 14, 2019. 

Based on a review of the relevant evidence, the Board finds that a rating in excess of 10 percent for the Veteran’s right shoulder and inguinal region scars from August 14, 2019 is not warranted.  Here, the February 2020 VA examination report reflects that the Veteran has two painful scars (right shoulder and left inguinal region).  The VA examiner found these scars to be tender to the touch, stable, and less than 39 sq. cm. in area, with no underlying tissue damage or cause of disfigurement.  As the 2020 VA examination and post-service VA and private treatment records, are silent for evidence that shows that the Veteran has 3 or more painful scars, or that his right shoulder and left inguinal region scars are larger than 77 sq. cm. in area, the current 10 percent rating assigned from August 14, 2019 under Diagnostic Code 7804 is appropriate.

Accordingly, as the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for right shoulder and left inguinal region scars from August 14, 2019, the claim must be denied.  In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable.  38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 

8. Entitlement to a rating in excess of 40 percent for DDD of the lumbar spine

The Veteran seeks a higher rating for his service-connected lumbar spine disability, which is currently rated as 40 percent disabling under Diagnostic Code 5242 (General Rating Formula for Diseases and Injuries of the Spine).  38 C.F.R. § 4.71a, Schedule of ratings – musculoskeletal system.

During the pendency of the appeal, 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).  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.  Therefore, the Board will consider the Veteran’s claim 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.

Under both the former and amended criteria for Diagnostic Code 5242, a 40 percent rating is assigned for evidence of forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  38 C.F.R. § 4.71a.  A 50 percent rating is assigned for evidence of unfavorable ankylosis of the entire thoracolumbar spine.  Id.  A 100 percent rating is assigned for evidence of unfavorable ankylosis of the entire spine.  Id.  Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code.  Id. at Note 1.  Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.”  Dorland’s Illustrated Medical Dictionary, 94 (32nd ed. 2012).  Unfavorable ankylosis is defined as “a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.”  Id.  at Note 5.  Additionally, fixation of a spinal segment in neutral position (zero degrees) is “always” considered favorable ankylosis.  Id.  Normal thoracolumbar spine motion includes forward flexion from 0 to 90 degrees and normal combined range of motion of the thoracolumbar spine is 240 degrees.  38 C.F.R. § 4.71a, Plate V. 

Under the former criteria, Diagnostic Code 5242 also instructs to evaluate degenerative arthritis of the spine under Diagnostic Code 5003 if limitation of motion is noncompensable.  Under the amended criteria, Diagnostic Code 5242 also instructs to evaluate degenerative arthritis, DDD other than intervertebral disc syndrome (IVDS) under either Diagnostic Code 5003 (Degenerative arthritis, other than post-traumatic) if limitation of motion is noncompensable, or under Diagnostic Code 5010 (Post-traumatic arthritis), which instructs to rate as limitation of motion, dislocation, or other specified instability under the affected joint, and where two or more joints are affected, each rating shall be combined in accordance with 38 C.F.R. § 4.25.  A rating under Diagnostic Code 5003 cannot be combined with a rating based on limitation of motion of the same joint.  Here, as the Veteran is currently in receipt of a compensable, 40 percent, rating under Diagnostic Code 5242 for limitation of motion for his lumbar spine, and he does not have a diagnosis of post-traumatic arthritis, Diagnostic Code 5003 and Diagnostic Code 5010 are not for application under the former or amended schedular criteria.

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.  See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011).  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; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate.  See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”).  

Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis.  See Burton v. Shinseki, 25 Vet. App. 1 (2011).  

In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.”  The spine has no opposite joint.  

In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. 

Upon review of the relevant evidence, the Board finds that a rating in excess of 40 percent for the Veteran’s lumbar spine disability under Diagnostic Code 5242 is not warranted.  As the record is silent for relevant evidence pertaining to the Veteran’s lumbar spine from February 7, 2021onward, the Board will consider only the former criteria under Diagnostic Code 5242.  Specifically, the medical evidence of record, to include the April 2015 and 2020 VA examinations and post-service VA and private treatment records, does not support a finding of ankylosis of the lumbar spine or IVDS.  During the April 2015 VA examination, range of motion testing reflected initial range of motion and repetitive range of motion to 20 degrees in forward flexion, even with pain noted.  While the Veteran reported flare-ups of his lumbar spine, the examiner noted no additional limitation of motion during flare-ups.  Further, the VA examination report shows no evidence of ankylosis or IVDS.  Range of motion testing during the February 2020 VA examination reflected range of motion to 20 degrees, to include pain during a reported flare-up.  The VA examination report also shows no evidence of ankylosis or IVDS.  Additionally, post-service VA and private treatment records for the period on appeal does not reflect evidence of ankylosis of the spine or IVDS.  Here, the medical evidence of record only reflects forward flexion to 20 degrees.  As such, the currently assigned 40 percent rating for DDD of the lumbare spine under Diagnostic Code 5242 is appropriate.   

Regarding neurological impairment found during the February 2020 VA examination, the Veteran has already been granted service connection by way of the August 2020 rating decision for right and left lower extremity radiculopathy, and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his lumbar spine disability.

In conclusion, as the Board finds that the preponderance of, the evidence is against the Veteran’s claim for a rating in excess of 40 percent for DDD of the lumbar spine, the claim must be denied.  In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable.  38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 

9. Entitlement to a rating in excess of 10 percent for DJD of the right knee

10. Entitlement to a rating in excess of 10 percent for DJD of the left knee

The Veteran seeks higher ratings for his service-connected right and left knee disabilities, which are each currently rated as 10 percent disabling under Diagnostic Code 5260 (Leg, limitation of flexion).  38 C.F.R. § 4.71a, Schedule of ratings – musculoskeletal system.  

The assigned Diagnostic Code 5260 suggests that the Veteran’s right and left knee disabilities are each rated based on compensable limitation of flexion.  38 C.F.R. § 4.71a.  A review of the evidence reflects that the right and left knee disabilities have manifested as degenerative arthritis and have been rated based on painful noncompensable limitation of motion, and that the right and left knee disabilities have not had compensable limitation of motion (i.e. limitation of flexion or extension) at any time during the relevant rating period.  Therefore, the Diagnostic Code assigned should have been Diagnostic Code 5003, to show that the right and left knee disabilities with degenerative arthritis are being rated based on noncompensable limitation of motion that is painful.  For this reason, the Board is changing the diagnostic code for the right knee disability to Diagnostic Code 5003 and the left knee disability to Diagnostic Code 5003 to reflect the actual rating already assigned.  38 C.F.R. § 4.71a.

As previously discussed, during pendency of the appeal, 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).  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.

Under both the prior and revised criteria for Diagnostic Code 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.  38 C.F.R. § 4.71a.  When, limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is generally for application.  Id.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  Id.  In the absence of limitation of motion, a 10 percent rating is applied for X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups; a 20 percent rating is applied for X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations.  Id.  The 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion.  Id. at Note (1). 38 C.F.R. § 4.71a, Diagnostic Code 5003.  The primary difference between the former and revised criteria for Diagnostic Code 5003 is that the former criteria encompasses both degenerative and post-traumatic arthritis, while the revised criteria only applies to degenerative arthritis, other than post-traumatic arthritis.

Normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion.  38 C.F.R. § 4.71a, Plate II. 

In addition, separate ratings may be assigned for compensable limitation of both flexion (Diagnostic Code 5260) and extension (Diagnostic Code 5261), or for limitation of motion and instability or subluxation of the knee (Diagnostic Code 5257), or meniscal pathology.  However, a separate rating can only be assigned where additional compensable symptomatology is shown that is not duplicative of that used to assign another rating.  38 C.F.R. § 4.14; VAOPGCPREC 09-04 (2004), 69 Fed. Reg. 59990 (2004); VAOPGCPREC 23-97 (1997), 62 Fed. Reg. 63604 (1997); VAOPGCPREC 9-98 (1998), 63 Fed. Reg. 56704 (1998); Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991). 

Under both the former and revised criteria for Diagnostic Code 5260, a 20 percent rating is assigned for knee flexion limited to 30 degrees.  C.F.R. § 4.71a. 

Under both the former and revised criteria for Diagnostic Code 5261, a 20 percent rating is assigned for knee extension limited to 15 degrees.  38 C.F.R. § 4.71a. 

Upon review of the relevant evidence, the Board finds that a rating in excess of 10 percent for DJD of the right knee under Diagnostic Code 5003 and a rating in excess of 10 percent for DJD of the left knee under Diagnostic Code 5003 is not warranted.  As the record is silent for relevant medical evidence pertaining to the Veteran’s right or left knee from February 7, 2021 onward, the Board will consider only the former criteria under Diagnostic Code 5003.  Specifically, the medical evidence of record, to include the April 2015 and February 2020 VA examinations and post-service VA and private treatment records, reflect that the only manifestation of the Veteran’s right and left knee disabilities is limitation of motion due to pain.  During the 2015 VA examination, initial range of motion in flexion was to 90 degrees in the right knee and 110 degrees in the left knee, with normal extension to 0 degrees for both knees.  No additional range of motion loss was found during repeated use testing or due to reported flare-ups.  Moreover, the examiner found no evidence of ankylosis, instability, or subluxation in either knee.  As to the 2020 VA examination, initial range of motion in flexion was to 85 degrees in both knees, with normal extension to 0 degrees in both knees.  Repeated use testing showed that flexion was to 80 degrees in both knees, with normal extension to 0 degrees in both knees.  Range of motion as to reported flare-ups in both knees was estimated to be 70 degrees in flexion, with normal extension to 0 degrees in both knees.  The examiner found no evidence of ankylosis, instability, or subluxation in either knee.  Further, post-service VA and private treatment records for the period on appeal do not reflect evidence of knee flexion limited to 30 degrees, knee extension limited to 15 degrees, ankylosis, subluxation, or instability.  Here, the Veteran’s right and left knee disabilities are manifested by painful motion, functional loss, and flare-ups, which are specifically, contemplated by the applicable rating criteria. 38 C.F.R. § 4.71a.  Furthermore, to the extent that the Veteran’s activities are limited because of such symptoms, such limitations are contemplated by the current ratings.  Diagnostic Code 5260 is not for application, as flexion in the right and left knees is to 70 degrees or greater.  Diagnostic Code 5261 is also not for application, as extension in the right and left knees is to 0 degrees, which is normal range of motion.  Here, while the Veteran has not demonstrated compensable limitation of motion, degenerative arthritis is present in both knees.  As such, the currently assigned 10 percent ratings under Diagnostic Code 5003 for degenerative arthritis of the right and left knees are appropriate and no higher ratings are warranted. 

The Board has also considered whether ratings under Diagnostic Codes 5256, 5262, and 5263 for ankylosis, impairment of tibia and fibula, and genu recurvatum are warranted, respectively.  However, as the medical evidence shows that such impairments are absent, and the Veteran does not contend otherwise, higher ratings are not available under those Diagnostic Codes.

In sum, as the Board finds that the preponderance of, the evidence is against the Veteran’s claims for a rating in excess of 10 percent for DJD of the right knee under Diagnostic Code 5003 and a rating in excess of 10 percent for DJD of the left knee under Diagnostic Code 5003, the claims must be denied.  In denying such ratings, the Board finds the benefit of the doubt doctrine is not applicable.  38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 

11.  Entitlement to a rating in excess of 20 percent for DJD of the right shoulder

12. Entitlement to a rating in excess of 20 percent for DJD of the left shoulder

The Veteran seeks higher ratings for his service-connected right and left shoulder disabilities, which are each currently rated as 20 percent disabling under Diagnostic Code 5201 (Arm, limitation of motion).  38 C.F.R. § 4.71a, Schedule of ratings – musculoskeletal system.  

As an initial matter, ratings based on function impairment of the upper extremities are predicated upon which extremity is the major extremity, with only one extremity being considered major.  38 C.F.R. § 4.69.  The medical evidence in this case reflects that the Veteran is right-hand dominant. Therefore, his right upper extremity will be considered as the major extremity. 

As previously discussed, during pendency of the appeal, 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).  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.

Under the prior criteria for Diagnostic Code 5201, a 20 percent rating is assigned for limitation of motion of the arm at shoulder level for both major and minor joints; or midway between the side and shoulder level for the minor joint.  38 C.F.R. § 4.71a.  A 30 percent rating is assigned for limitation of motion of the arm midway between the side and shoulder level for the major joint; or to 25 degrees from the side for the minor joint.  Id.  A 40 percent rating, the highest schedular rating allowed, is assigned for limitation of motion of the arm to 25 degrees from the side for the major joint.  Id.  Under the revised criteria for Diagnostic Code 5201, a 20 percent rating is assigned for limitation of motion of the arm at shoulder level (flexion and/or abduction limited to 90 degrees) for both major and minor joints; or midway between the side and shoulder level (flexion and/or abduction limited to 45 degrees) for the minor joint.  Id.  A 30 percent rating is assigned for limitation of motion of the arm midway between the side and shoulder level (flexion and/or abduction limited to 45 degrees) for the major joint; or flexion and/or abduction limited to 25 degrees from the side minor joint.  Id.  A 40 percent rating, the highest schedular rating allowed, is assigned for limitation of motion of the arm with flexion and/or abduction limited to 25 degrees from the side for the major joint.  Id.

Normal ranges of motion of the shoulder are flexion (forward elevation) from 0 to 180 degrees, abduction from 0 to 180 degrees, and both internal and external rotation from 0 to 90 degrees.  38 C.F.R. § 4.71, Plate I.  In determining whether the Veteran has limitation of motion to shoulder level, it is necessary to consider forward flexion and abduction.  See Mariano v. Principi, 17 Vet. App. 305, 314-16 (2003). 

In addition, separate ratings may be assigned for ankylosis of scapulohumeral articulation (Diagnostic Code 5200), impairment of the humerus (Diagnostic Code 5202), or impairment of the clavicle or scapula (Diagnostic Code 5303).  However, as the medical evidence of record is silent for ankylosis of the right or left shoulder; impairment of the right or left humerus, to include nonunion, malunion, or episodes of guarding; or impairment of the right or left clavicle or scapula, to include dislocation, nonunion, or malunion), these separate diagnostic codes are not for application. 

Upon review of the relevant evidence, the Board finds that prior to July 4, 2018, a rating in excess of 20 percent for DJD for the right shoulder under Diagnostic Code 5201 is not warranted; from July 4, 2018, a 30 percent rating for DJD of the right shoulder under Diagnostic Code 5201 is warranted; and a rating in excess of 20 percent for DJD of the left shoulder under Diagnostic Code 5201 is not warranted.  As the record is silent for relevant medical evidence pertaining to the Veteran’s right or left shoulder from February 7, 2021 onward, the Board will consider only the former criteria under Diagnostic Code 5201.  

The April 2015 VA examination reflects initial range of motion as to the Veteran’s right shoulder to 100 degrees flexion and to 110 degrees abduction.  Initial range of motion of the left shoulder was to 90 degrees flexion and 110 degrees abduction.  The examiner found no additional range of motion loss during repetitive use testing or due to reported bilateral shoulder flare-ups.  No ankylosis, guarding, or dislocation was found as to the Veteran’s shoulders, nor was any malunion or nonunion of the clavicle, scapula, or humerus.  

The February 2020 VA examination shows range of motion to, at worst, 70 degrees flexion and 50 degrees abduction, during reported right shoulder flare-ups.  Range of motion was to, at worst, 80 degrees flexion and 70 degrees abduction.  The examiner found no additional range of motion loss during repetitive use testing or due to reported bilateral shoulder flare-ups.  No ankylosis, guarding, or dislocation was found as to the Veteran’s shoulders, nor was any malunion or nonunion of the clavicle, scapula, or humerus.  

Further, post-service VA treatment records from July 4, 2018, reflect right shoulder flexion to 84 degrees, right shoulder abduction to 80 degrees, left shoulder flexion to 80 degrees, and left shoulder abduction to 80 degrees.  Here, the record reflects that from July 4, 2018 to the present, the Veteran’s right shoulder limitation of motion is to midway between the side and shoulder level, specifically, extension is limited to between 80 and 84 degrees, which is less than shoulder level at 90 degrees, but more than midway between shoulder level and the side, or 45 degrees.  As such, a 30 percent rating from July 4, 2018 for the Veteran’s right shoulder disability is warranted, as the Veteran’s right upper extremity is his major extremity.  As the medical evidence prior to July 4, 2018, to include the 2015 VA examination and post-service treatment records are silent for evidence of right arm limitation of motion midway between the side and shoulder level, the 20 percent rating currently assigned under Diagnostic Code 5201 is appropriate and a higher rating is not warranted prior to July 4, 2018.  

Regarding the Veteran’s left shoulder, post-treatment records from July 4, 2018 to the present also show left arm limitation of motion to midway between the side and shoulder level.  Specifically, left arm extension is limited to 80 degrees.  However, as the Veteran’s left arm is his minor extremity, under Diagnostic Code 5201, limitation of motion to midway between the side and shoulder level for the minor extremity warrants a 20 percent rating.  As such, the current 20 percent rating for left shoulder disability under Diagnostic Code 5201 is appropriate and a higher rating is not warranted.

In sum, prior to July 4, 2018, a rating in excess of 20 percent for DJD of the right shoulder under Diagnostic Code 5201 is denied; from July 4, 2018, a 30 percent rating for DJD of the right shoulder under Diagnostic Code 5201 is granted; and a rating in excess of 20 percent for DJD of the left shoulder under Diagnostic Code 5201 is denied.

13. Entitlement to a compensable rating for DJD of the of the right hip with limitation of extension

14. Entitlement to a rating in excess of 10 percent for DJD of the right hip with limitation of flexion from February 10, 2015 to February 17, 2020

15. Entitlement to a compensable rating for DJD of the right hip with limitation of flexion from February 18, 2020

16. Entitlement to a compensable rating for DJD of the right hip with limitation of abduction from February 10, 2015 to February 17, 2020

17. Entitlement to a rating in excess of 20 percent for DJD of the right hip with limitation of abduction from February 18, 2020

18. Entitlement to a compensable rating for DJD of the left hip with limitation of extension

19. Entitlement to a rating in excess of 10 percent for DJD of the left hip with limitation of flexion

20. Entitlement to a compensable rating for DJD of the left hip with limitation of abduction

The Veteran seeks higher ratings for his service-connected hip disabilities.  Under Diagnostic Code 5251 (Limitation of extension), the Veteran’s right hip is rated as noncompensable and his left hip is rated as noncompensable.  38 C.F.R. § 4.71a, Schedule of ratings – musculoskeletal system.  Under Diagnostic Code 5252 (Limitation of flexion), the Veteran’s right hip is rated as noncompensable from February 10, 2015 to February 17, 2020 and as 20 percent disabling from February 18, 2020, and his left hip is rated as 10 percent disabling.  Id.  Under Diagnostic Code 5253 (Limitation of Abduction, Adduction, and Rotation), the Veteran’s right hip is rated as 10 percent disabling from February 10, 2015 to February 17, 2020 and as noncompensable from February 18, 2020, and his left hip is rated as noncompensable.  Id.  While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, Diagnostic Codes 5251, 5252, and 5253 were not changed.

Under Diagnostic Code 5251, a maximum 10 percent rating is assigned for hip extension limited to 5 degrees.  38 C.F.R. § 4.71a.

Under Diagnostic Code 5252, a 10 percent rating is assigned for hip flexion limited to 45 degrees.  38 C.F.R. § 4.71a.  A 20 percent rating is assigned for hip flexion limited to 30 degrees.  Id.  A 30 percent rating is assigned for hip flexion limited to 20 degrees.  Id.  A maximum 40 percent rating is assigned for hip flexion limited to  10 degrees.  Id.

Under Diagnostic Code 5253, a 10 percent rating is assigned for thigh impairment with limitation of rotation (cannot toe-out more than 15 degrees for the affected leg); or for thigh impairment with limitation of adduction (cannot cross legs).  38 C.F.R. § 4.71a.  A 20 percent rating is assigned for thigh impairment with limitation of abduction when motion is lost beyond 10 degrees.  Id.

Right Hip

Limitation of Extension under Diagnostic Code 5251

Turning first to the Veteran’s right hip disability evaluated under Diagnostic Code 5251, upon review of the relevant evidence, the Board finds that a compensable rating for DJD of the right hip with limitation of extension is not warranted for the period on appeal.  During the April 2015 VA examination, initial range of motion showed right hip extension to 10 degrees.  The examiner noted no additional range of motion loss during repeated use testing or during reported right hip flare-ups.  During the February 2020 VA examination, initial range of motion testing showed right hip extension to 20 degrees, repeated use testing showed right hip extension to 15 degrees, and estimated range of motion during reported right hip flare-ups was to 10 degrees in extension.  Post-service VA treatment records for the period on appeal revealed right hip extension to, at worst, 30 degrees.  In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met.  38 C.F.R. § 4.31.  Here, the medical evidence of record reflects right hip limitation of extension between 10 degrees and 30 degrees.  As the medical evidence of record fails to reflect extension of the right hip limited to 5 degrees, the criteria for a compensable evaluation are not met.  The Board also notes that, while the 2015 and 2020 VA examinations reflect painful extension of the right hip, the Veteran is already in receipt of a compensable rating for painful flexion of the right hip under Diagnostic Code 5252.  Assigning multiple ratings based on the same symptoms or manifestations, in this case, painful motion, would constitute prohibited pyramiding.  38 C.F.R. § § 4.14.  Therefore, the currently assigned noncompensable rating for the Veteran’s DJD of the right hip with limitation of extension under Diagnostic Code 5251 is appropriate and a higher rating is not warranted.

Limitation of Flexion under Diagnostic Code 5252

Upon review of the relevant evidence, the Board finds that from February 10, 2015 to February 17, 2020, a rating in excess of 10 percent for DJD of the right hip with limitation of flexion under Diagnostic Code 5252 is not warranted.  During the April 2015 VA examination, initial range of motion showed painful right hip flexion to 110 degrees.  The examiner noted no additional range of motion loss during repeated use testing or during reported right hip flare-ups.  During the February 2020 VA examination, initial range of motion testing showed painful right hip flexion to 80 degrees, repeated use testing showed right hip flexion to 75 degrees, and estimated range of motion during reported right hip flare-ups was to 70 degrees in flexion.  Post-service VA treatment records for the period on appeal revealed right hip flexion to, at worst, 125 degrees.  In evaluating disabilities of the musculoskeletal system, painful motion is an important factor of disability.  See 38 C.F.R. § 4.59.  The intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability.  Id.  Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint.  Id.  Here, the April 2015 rating decision assigned a 10 percent rating for the Veteran’s right hip disability based on painful right hip flexion, as this is the minimum compensable rating for flexion of the right hip under Diagnostic Code 5252.  See 38 C.F.R. §§ 4.59, 4.71a; Burton v. Shinseki, 25 Vet. App. 1 (2011).  As the medical evidence of record prior to February 18, 2020 fails to reflect flexion of the right hip limited to 30 degrees or less, the criteria for a rating higher than 10 percent are not met.  Therefore, prior to February 18, 2020, the currently assigned 10 percent rating for the Veteran’s DJD of the right hip with limitation of flexion under Diagnostic Code 5252 is appropriate and a higher rating is not warranted.

The Board also finds that a compensable rating for DJD of the right hip with limitation of flexion under Diagnostic Code 5252 is not warranted from February 18, 2020.  The August 2020 rating decision decreased the Veteran’s evaluation for right hip flexion to noncompensable, effective February 18, 2020, as the same rating decision assigned an increased rating of 20 percent for DJD of the right hip with limitation of abduction under Diagnostic Code 5253, effective February 18, 2020.  While separate evaluations under qualifying hip movement diagnostic codes based on extension, flexion, and abduction, adduction or rotation can be assigned without pyramiding, when more than one qualifying joint motion is actually limited to a compensable degree and there is painful but otherwise noncompensable limitation of the complementary movement(s), only one compensable evaluation can be assigned.  38 C.F.R. § 4.59 does not permit separate compensable evaluations for each joint movement that results in painful motion; rather, it provides that painful motion is entitled to at least the minimum compensable evaluation for the joint.  See Mitchell, 25 Vet. App. at 39; Esteban, 6 Vet. App. at 262 ; 38 C.F.R. §§ 4.14, 4.59.  In other words, assignment of a separate rating based solely on painful motion is precluded by the rule against pyramiding.  As the Veteran is in receipt of a separate 20 percent rating for DJD of the right hip with limitation of abduction under Diagnostic Code 5253 from February 18, 2020, the Veteran’s 10 percent rating for right hip disability with limitation of flexion under Diagnostic Code 5252, based solely on painful motion, is precluded by the rule against pyramiding from February 18, 2020.  The only way that the Veteran’s 10 percent rating for right hip disability with limitation of flexion under Diagnostic Code 5252 could be continued from February 18, 2020, is if the medical evidence of record for this period of time reflects that the Veteran’s right hip flexion is limited to 45 degrees or less.  Here, as the evidence from February 18, 2020 is silent for right hip flexion limited to 45 degrees or less, the RO’s decrease in the Veteran’s right hip evaluation from 10 percent to noncompensable under Diagnostic Code 5252 from February 18, 2020 was proper to avoid pyramiding due to the increased rating as to the Veteran’s right hip limitation of abduction under Diagnostic Code 5253.  Therefore, the currently assigned noncompensable rating for the Veteran’s DJD of the right hip with limitation of flexion under Diagnostic Code 5252 is appropriate and a higher rating is not warranted. 

Limitation of Abduction, Adduction, and Rotation under Diagnostic Code 5253

Upon review of the relevant evidence, the Board finds that, from February 10, 2015 to February 17, 2020, a noncompensable rating for DJD of the right hip with limitation of abduction is not warranted.  During the April 2015 VA examination, initial range of motion showed right hip abduction to 30 degrees, right hip adduction to 15 degrees, right hip external rotation to 60 degrees, and right hip internal rotation to 30 degrees.  The examiner noted no additional range of motion loss during repeated use testing or during reported right hip flare-ups.  During the February 2020 VA examination, initial range of motion testing showed right hip abduction to 20 degrees, right hip adduction to 20 degrees, right hip external rotation to 30 degrees, and right hip internal rotation to 40 degrees.  Repeated use testing showed right hip abduction to 15 degrees, right hip adduction to 15 degrees, right hip external rotation to 25 degrees, and right hip internal rotation to 35 degrees.  Estimated range of motion during reported right hip flare-ups was to 10 degrees in abduction, 10 degrees in adduction, 20 degrees in external rotation, and 30 degrees in internal rotation.  Post-service VA treatment records for the period on appeal revealed right hip abduction to, at worst, 45 degrees.  

In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met.  38 C.F.R. § 4.31.  Here, the medical evidence of record reflects right hip abduction to 30 degrees, right hip adduction to 15 degrees, right hip external rotation to 60 degrees, and right hip internal rotation to 30 degrees from February 10, 2015 to February 17, 2020.  As the medical evidence of record for this period on appeal fails to reflect abduction limited to 10 degrees, adduction limited to 10 degrees, or external or internal rotation limited to 10 degrees, the criteria for a compensable evaluation under Diagnostic Code 5253 are not met.  The Board also notes that, while the 2015 VA examination reflects painful abduction of the right hip, the Veteran is already in receipt of a compensable rating for painful flexion of the right hip under Diagnostic Code 5252 for the same period on appeal.  Assigning multiple ratings based on the same symptoms or manifestations, in this case, painful motion, would constitute prohibited pyramiding.  38 C.F.R. § § 4.14.  Therefore, the currently assigned noncompensable rating for the Veteran’s DJD of the right hip with limitation of abduction under Diagnostic Code 5253 is appropriate and a higher rating is not warranted from February 10, 2015 to February 17, 2020.  

As the February 18, 2020 VA examination reflects that the Veteran’s right hip abduction is limited to 10 degrees, a 20 percent rating, was assigned by the RO in the August 2020 rating decision for DJD of the right hip with limitation of abduction under Diagnostic Code 5253 from February 18, 2020, as this is a higher evaluation than the 10 percent rating assigned for painful right hip flexion from February 10, 2015 to February 17, 2020.  The Board finds that, from February 18, 2020, a rating higher than 20 percent for DJD of the right hip with limitation of abduction under Diagnostic Code 5253 is not warranted, as the Veteran is already in receipt of the highest schedular rating under this diagnostic code.  Also, as previously discussed, the 20 percent rating assigned for the Veteran’s right hip limitation of abduction February 18, 2020 precludes the continuation of the Veteran’s 10 percent rating for right hip disability with limitation of flexion under Diagnostic Code 5252 from February 18, 2020 onward to avoid pyramiding.  Therefore, the currently assigned 20 percent rating  for the Veteran’s DJD of the right hip with limitation of abduction under Diagnostic Code 5253 from February 18, 2020 is appropriate and a higher rating is not warranted.  

Left Hip

Limitation of Extension under Diagnostic Code 5251

Upon review of the relevant evidence, the Board finds that a compensable rating for DJD of the left hip with limitation of extension under Diagnostic Code 5251 is not warranted for the period on appeal.  During the April 2015 VA examination, initial range of motion showed left hip extension to 15 degrees.  The examiner noted no additional range of motion loss during repeated use testing or during reported left hip flare-ups.  During the February 2020 VA examination, initial range of motion testing showed left hip extension to 20 degrees, repeated use testing showed left hip extension to 15 degrees, and estimated range of motion during reported left hip flare-ups was to 10 degrees in extension.  Post-service VA treatment records for the period on appeal revealed right hip extension to, at worst, 30 degrees.  In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met.  38 C.F.R. § 4.31.  Here, the medical evidence of record reflects left hip limitation of extension between 10 degrees and 30 degrees.  As the medical evidence of record fails to reflect extension of the left hip limited to 5 degrees, the criteria for a compensable evaluation are not met.  The Board also notes that, while the 2015 and 2020 VA examinations reflect painful extension of the left hip, the Veteran is already in receipt of a compensable rating for painful flexion of the left hip under Diagnostic Code 5252.  Assigning multiple ratings based on the same symptoms or manifestations, in this case, painful motion, would constitute prohibited pyramiding.  38 C.F.R. § § 4.14.  Therefore, the currently assigned noncompensable rating for the Veteran’s DJD of the left hip with limitation of extension under Diagnostic Code 5251 is appropriate and a higher rating is not warranted.

Limitation of Flexion under Diagnostic Code 5252

Upon review of the relevant evidence, the Board finds that a rating in excess of 10 percent for DJD of the left hip with limitation of flexion under Diagnostic Code 5252 is not warranted for the period on appeal.  During the April 2015 VA examination, initial range of motion showed painful left hip flexion to 115 degrees.  The examiner noted no additional range of motion loss during repeated use testing or during reported left hip flare-ups.  During the February 2020 VA examination, initial range of motion testing showed painful left hip flexion to 80 degrees, repeated use testing showed left hip flexion to 75 degrees, and estimated range of motion during reported left hip flare-ups was to 70 degrees in flexion.  Post-service VA treatment records for the period on appeal revealed left hip flexion to, at worst, 125 degrees.  In evaluating disabilities of the musculoskeletal system, painful motion is an important factor of disability.  See 38 C.F.R. § 4.59.  The intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability.  Id.  Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint.  Id.  Here, the April 2015 rating decision assigned a 10 percent rating for the Veteran’s left hip disability based on painful left hip flexion, as this is the minimum compensable rating for flexion of the left hip under Diagnostic Code 5252.  See 38 C.F.R. §§ 4.59, 4.71a; Burton v. Shinseki, 25 Vet. App. 1 (2011).   As the medical evidence of record fails to reflect flexion of the left hip limited to 30 degrees or less, the criteria for a rating higher than 10 percent are not met.  Therefore, the currently assigned 10 percent rating for the Veteran’s DJD of the left hip with limitation of flexion under Diagnostic Code 5252 is appropriate and a higher rating is not warranted.

Limitation of Abduction, Adduction, and Rotation under Diagnostic Code 5253

Upon review of the relevant evidence, the Board finds that, throughout the period on appeal, a compensable rating for DJD of the left hip with limitation of abduction is not warranted.  During the April 2015 VA examination, initial range of motion showed left hip abduction to 45 degrees, left hip adduction to 20 degrees, left hip external rotation to 45 degrees, and left hip internal rotation to 30 degrees.  The examiner noted no additional range of motion loss during repeated use testing or during reported left hip flare-ups.  During the February 2020 VA examination, initial range of motion testing showed left hip abduction to 25 degrees, left hip adduction to 20 degrees, left hip external rotation to 50 degrees, and left hip internal rotation to 20 degrees.  Repeated use testing showed left hip abduction to 20 degrees, left hip adduction to 15 degrees, left hip external rotation to 45 degrees, and left hip internal rotation to 15 degrees.  Estimated range of motion during reported left hip flare-ups was to 15 degrees in abduction, 10 degrees in adduction, 40 degrees in external rotation, and 10 degrees in internal rotation.  Post-service VA treatment records for the period on appeal revealed left hip abduction to, at worst, 45 degrees.  

In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met.  38 C.F.R. § 4.31.  Here, the medical evidence of record for the period on appeal reflects left hip abduction to, at worst, 15 degrees, left hip adduction to, at worst, 10 degrees, left hip external rotation to, at worst, 40 degrees, and left hip internal rotation to, at worst, 10 degrees.  The Board notes that, while the February 2020 VA examination reflects left hip adduction to 10 degrees and left hip internal rotation to 10 degrees, which would normally warrant a 10 percent rating under Diagnostic Code 5253, the Veteran is already in receipt of a 10 percent rating based on painful motion associated with left hip limitation of flexion under Diagnostic Code 5252 for the same period on appeal.  Assigning multiple ratings based on the same symptoms or manifestations, in this case, painful motion, would constitute prohibited pyramiding.  38 C.F.R. § § 4.14.  To warrant a higher rating, specifically 20 percent, for left hip limitation of abduction under Diagnostic Code 5253, that would, in essence, discontinue the Veteran’s current 10 percent rating under Diagnostic Code 5252 to allow for the higher separate rating, the medical evidence would need to reflect left hip abduction to 10 degrees or less.  Here, as the medical evidence of record for the period on appeal fails to reflect left hip abduction limited to 10 degrees, the criteria for a compensable evaluation under Diagnostic Code 5253 are not met.  Therefore, the currently assigned noncompensable rating for the Veteran’s DJD of the left hip with limitation of abduction under Diagnostic Code 5253 is appropriate and a higher rating is not warranted.  

Lastly, the Board has also considered whether separate ratings are warranted for the Veteran’s right and left hip disabilities during the above-mentioned periods on appeal.  As the record is silent for medical evidence of right or left hip ankylosis, right or left hip flail joint, or impairment of the right or left femur, separate evaluations under Diagnostic Codes 5250, 5254, or 5255, respectively, are not warranted.  Further, while the Veteran is diagnosed with DJD of the right and left hips, as he is already in receipt of compensable ratings for his right hip under Diagnostic Codes 5252 and 5253 and a compensable rating for his left hip under Diagnostic Code 5252, he is not entitled to separate ratings under Diagnostic Code 5003 for degenerative arthritis, as compensable limitation of motion ratings preclude a separate rating under this diagnostic code.  38 C.F.R. § 4.71. 

In sum, the Board finds that: (1) entitlement to a compensable rating for DJD of the right hip with limitation of extension is denied; (2) entitlement to a rating in excess of 10 percent for DJD of the right hip with limitation of flexion from February 10, 2015 to February 17, 2020 is denied; (3) entitlement to a compensable rating for DJD of the right hip with limitation of flexion from February 18, 2020 is denied; (4) entitlement to a compensable rating for DJD of the right hip with limitation of abduction from February 10, 2015 to February 17, 2020 is denied; (5) entitlement to a rating in excess of 20 percent for DJD of the right hip with limitation of abduction from February 18, 2020 is denied; (6) entitlement to a compensable rating for DJD of the left hip with limitation of extension is denied; (7) entitlement to a rating in excess of 10 percent for DJD of the left hip with limitation of flexion is denied; and (8) entitlement to a compensable rating for DJD of the left hip with limitation of abduction is denied.  In denying such ratings, the Board finds the benefit of the doubt doctrine is not applicable.  38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 

 

 

KELLI A. KORDICH

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	D. Houle, 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.