Citation Nr: 21015134 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 10-44 632 DATE: March 16, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for arthritis of the right hip is denied. Entitlement to a disability rating in excess of 10 percent for arthritis of the left hip is denied. FINDINGS OF FACT 1. The Veteran’s right hip arthritis did not result in painful motion with flexion of the right leg limited to 30 degrees. 2. The Veteran’s left hip arthritis did not result in painful motion with flexion of the right leg limited to 30 degrees. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for arthritis of the right hip with limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5252. 2. The criteria for entitlement to a rating in excess of 10 percent for arthritis of the left hip with limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5252. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1975 to December 2006. In March 2019, the Board of Veterans’ Appeals (Board) remanded the claim to the Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA) for additional development. As the actions specified in the remand have been completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple (“staged”) ratings may be assigned for different periods of time during the pendency of the appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Regarding orthopedic disabilities, when assigning a disability rating, it is necessary to consider functional loss due to flare-ups, fatigability, incoordination, and pain on movements. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40 ), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45 ). Mitchell v. Shinseki, 25 Vet. App. 32 (2011). If feasible, these determinations are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. Although pain may cause a functional loss, pain itself does not constitute functional loss. Pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Entitlement to a rating in excess of 10 percent for service-connected right hip arthritis and entitlement to a rating in excess of 10 percent for service-connected left hip arthritis The Veteran contends that his service-connected right hip disability and service-connected left hip disability warrant disability ratings in excess of 10 percent. The Veteran’s bilateral hip disabilities are currently rated 10 percent under Diagnostic Code 5252. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not changed. In a September 2010 rating decision, the AOJ assigned 10 percent disability ratings for painful motion of the bilateral hips effective January 1, 2007, the date of the claim. At the outset, the Board notes that Diagnostic Code 5054, which provides ratings for hip replacement, is not applicable in this case, as there is no evidence that the Veteran underwent a total hip replacement. Additionally, Diagnostic Code 5254, which provides rating for flail joint of the hip, and Diagnostic Code 5255, which provides ratings for impairment of the femur are not applicable in this case, as there is no evidence that the Veteran has flail joint of the hip or impairment of the femur. Diagnostic Code 5250 contemplates ankylosis of the hip; however, the record does not show ankylosis of the bilateral hips. Although the Veteran’s right hip disability does manifest in some limitation of motion from pain and stiffness, it is not in a fixed position without motion at any degree or angle. Normal range of motion of the hip is from 0 to 125 degrees of flexion, 0 to 30 degrees of extension, 0 to 45 degrees of abduction, 0 to 25 degrees of adduction, 0 to 60 degrees for external rotation, and 0 to 40 degrees for external rotation. See 38 C.F.R. § 4.71, Plate II. Under Diagnostic Code 5251, a maximum 10 percent rating is warranted for limitation of extension of the thigh to 5 degrees. Id. Under Diagnostic Code 5252, a 10 percent rating is warranted for limitation of flexion of the thigh to 45 degrees; a 20 percent rating is warranted for flexion limited to 30 degrees; a 30 percent rating is warranted for flexion limited to 20 degrees; and a 40 percent rating is warranted for flexion limited to 10 degrees. Id. Impairment of the thigh is rated under Diagnostic Code 5253. A 10 percent rating is warranted for limitation of rotation of the thigh, where the Veteran cannot toe-out more than 15 degrees, in the affected leg; a 10 percent rating is also warranted for limitation of adduction of the thigh, where the Veteran cannot cross his legs; and a 20 percent rating is warranted for limitation of abduction of the thigh with motion lost beyond 10 degrees. Id. Under 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. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. However, in the absence of limitation of motion, the disability is to be rated as 10 percent disabling with X-ray evidence of involvement of two or more major joints or two or more minor joint groups; and as 20 percent disabling with X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a. Note (1) states that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. Id. When evaluating joint disabilities rated based on limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 207 (1995). In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the United States Court of Appeals for Veterans Claims (Court) held that VA examiners must provide opinions regarding flare-ups based upon estimates derived from information procured from relevant sources, including lay statements, when a flare-up is not observable at the time of examination. The Court has also issued the opinion of Correia v. McDonald, 28 Vet. App. 158, 169-170 (2016), which clarifies additional requirements that VA examiners should address when assessing musculoskeletal disabilities, holding specifically that the joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. After a review of the evidence, for reasons set forth below, the Board finds that ratings in excess of 10 percent is not warranted for the Veteran’s right hip disability or his left hip disability. An October 2007 X-ray found that the Veteran had mild superior articular degenerative joint disease of the bilateral hips. No fracture was seen, nor were there significant soft tissue abnormalities. A February 2008 private treatment note indicated that the Veteran experienced bilateral hip pain at the trochanter region for many years. He treated his symptoms with pain management medications. Range of movement testing found that the Veteran had right hip flexion from 0 to 95 degrees, abduction 0 to 40 degrees, and adduction 0 to 40 degrees. Range of movement testing found that the Veteran had left hip flexion from 0 to 95 degrees, abduction 0 to 30 degrees, and adduction 0 to 35 degrees. X-rays showed bilateral hip osteoarthritis. The physician noted that the Veteran had bilateral hip joint arthritis of unknown origin with bilateral hip range of motion reduction. In a March 2011 private treatment note, the Veteran’s right hip flexion measured from 0 to 105 degrees and left hip flexion measured from 0 to 100 degrees. He had bilateral hip pain upon testing. A March 2013 ultrasound of the bilateral hips noted no musculotendinous lesions. During a May 2013 private health assessment, the Veteran complained of bilateral hip pain. He reported difficulty sleeping on his side. Range of movement testing found that the Veteran had bilateral hip flexion from 0 to 90 degrees and bilateral hip abduction of 0 to 25 degrees. X-ray showed bilateral hip moderate arthritis. A September 2017 VA primary care note indicated that the Veteran complained of worsening hip pain. A December 2017 private treatment note indicated that the Veteran had constant bilateral hip pain. He treated his pain with medications, including injections. In January 2018, the Veteran had bilateral hip intraarticular injections to treat his pain. The Veteran underwent a VA examination in January 2018 for hip and thigh conditions. He was diagnosed with osteoarthritis of the bilateral hips. He reported worsening hip pain. He noted flare-ups with stabbing pain upon climbing or descending stairs. He reported being unable to engage in strenuous labor. Range of movement testing found that the Veteran had right hip flexion from 0 to 80 degrees, extension from 0 to 20 degrees, abduction 0 to 30 degrees, and adduction 0 to 20 degrees. Range of movement testing found that the Veteran had left hip flexion from 0 to 90 degrees, extension from 0 to 20 degrees, abduction 0 to 30 degrees, and adduction 0 to 20 degrees. The examiner found that the Veteran could cross his legs. Range of motion itself did not contribute to functional loss. There was evidence of pain upon examination that caused functional loss. Also, there was evidence of pain with weight bearing, pain on passive range of motion testing, and pain when the joint is used in non-weight bearing. There was no evidence of crepitus. There was objective evidence of tenderness over the lateral trochanter region. The Veteran was unable to perform repetitive use testing as the Veteran stated that doing squats was too painful. In regard to repeated use over time, the examiner found that he was unable to offer an opinion without resorting to mere speculation. The examiner found that the Veteran had muscle atrophy of his bilateral hips. No ankylosis was found. The Veteran did not have malunion or nonunion of the femur, flail hip joint, or a leg length discrepancy. In March 2019, the Board remanded for another examination as the January 2018 VA examination did not note additional functional loss, if any, he suffered during flares. Remand was needed to estimate the Veteran’s functional loss due to flares based on all the evidence of record, including the Veteran’s lay information, per Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Veteran underwent another VA examination in December 2020. He was diagnosed with degenerative arthritis of the bilateral hips. Bilateral hip X-rays from January 2005 and October 2007 showed degenerative joint disease of the bilateral hips. The Veteran reported a constant dull pain of the bilateral hips. He noted stiffness and increased pain in the morning. He stated that left hip pain was worse than the right. He noted difficulty sleeping due to hip pain. He treated his symptoms with medication and yoga therapy. He reported flare-ups upon stair use. Range of movement testing found that the Veteran had right hip flexion from 0 to 85 degrees, extension from 0 to 30 degrees, abduction 0 to 40 degrees, and adduction 0 to 25 degrees. Range of movement testing found that the Veteran had left hip flexion from 0 to 75 degrees, extension from 0 to 20 degrees, abduction 0 to 40 degrees, and adduction 0 to 25 degrees. The examiner found that the Veteran could cross his legs. Range of motion itself did not contribute to functional loss. There was evidence of pain upon examination that caused functional loss. Also, there was evidence of pain with weight bearing, pain on passive range of motion testing, and pain when the joint is used in non-weight bearing. There was no evidence of crepitus. There was objective evidence of mild to moderate tenderness over the trochanter region. The Veteran was able to perform repetitive use testing with at least three repetitions without additional loss of function or range of motion. The examiner found that pain significantly limited functional ability with repeated use over time. In terms of range of motion, the examiner estimated right hip flexion from 0 to 75 degrees, extension from 0 to 25 degrees, abduction 0 to 30 degrees, and adduction 0 to 20 degrees. The examiner estimated left hip flexion from 0 to 65 degrees, extension from 0 to 15 degrees, abduction 0 to 30 degrees, and adduction 0 to 15 degrees. The examiner found that post-test adduction of the bilateral hips with repeated us over time prevented him from crossing his legs. The examination was not being conducted during a flare-up and the examiner found that pain, weakness, fatiguability or incoordination did not significantly limit functional ability with flare-ups. Muscle strength was normal. He did not have muscle atrophy. No ankylosis was found. The Veteran did not have malunion or nonunion of the femur, flail hip joint, or a leg length discrepancy. The examiner noted that the Veteran’s bilateral hip arthritis made climbing stairs difficult, as well as sleeping on his sides. The Board notes that VA examinations and treatment records during this appeal period have reflected limited and painful, albeit not compensable, motion. In this regard, the evidence during this period does not reflect findings of limitation of extension of the bilateral thighs to 5 degrees or less, limitation of flexion of 30 degrees or less, or other limitation of motion of the bilateral thighs. The Veteran’s bilateral hip disabilities are, however, productive of additional functional limitation beyond what is reflected in his range of motion measurements. Specifically, the record reflects reports of chronic pain. These associated functional limitations, however, are contemplated by the 10 percent rating currently assigned his right hip and left hip arthritis under Diagnostic Codes 5252, especially considering that his limitation of motion had not risen to a compensable level at any point during the pendency of this claim. See 38 C.F.R. §§ 4.40, 4.45; see also Mitchell, 25 Vet. App. at 42-43; DeLuca, 8 Vet. App. at 206-207. When there is “no actual or compensable limitation of motion,” compensation for functional limitation in the form of pain is limited to a single 10 percent disability rating per joint. See Mitchell, 25 Vet. App. at 36. The Veteran cannot receive another 10 percent rating for pain under any other code contemplating limited and/or painful motion as this would result in compensating the Veteran twice for the same manifestation of his hip disability. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). See 38 C.F.R. § 4.71a; Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). The Veteran’s symptom of chronic pain is already contemplated in his 10 percent ratings under Diagnostic Code 5252. The Board has further considered whether the Veteran is entitled to a higher or separate rating for the right hip disability under the other Diagnostic Codes relating to disabilities of the hip and thigh. However, as previously discussed, there is no indication that the Veteran has had a total hip replacement or that he has experienced flail joint of the right hip or impairment of the left femur or ankylosis. Therefore, no higher or separate ratings are warranted under those Diagnostic Codes. See 38 C.F.R. § 4.71a, Diagnostic Codes 5054, 5250, 5254 and 5255. Although the December 2020 VA examiner noted that upon repeated use over time the Veteran would be prevented from crossing his legs, under Diagnostic Code 5253 a 10 percent rating is also warranted for limitation of adduction of the thigh, where the Veteran cannot cross his legs. Thus, Diagnostic Code 5253 does not allow for a higher evaluation. Further, the Board has also considered whether Diagnostic Code 5003, which addresses degenerative arthritis, might serve as the basis for an increased rating. However, in this case, Diagnostic Code 5003 does not allow for a higher evaluation as only one major joint bilaterally is involved. The Veteran asserts that he is entitled to an increased rating for his bilateral hip disability. His factual recitation as to symptomatology associated with the right and left hips is accepted as credible. However, as a layperson, lacking in medical training and expertise, the Veteran cannot provide a competent opinion on a matter as complex as the present severity of his right hip disability in the context of the VA Rating Schedule, and his assertions are far outweighed by the detailed opinions provided by the medical professionals who examined the Veteran’s right hip and discussed all relevant details for purposes of rating his disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board has considered the Veteran’s statements as to his functional impairment and finds that the impairment has been considered by the 10 percent rating assigned. For all the foregoing reasons, the Board finds that a rating higher than 10 percent for the Veteran’s right hip disability and a rating higher than 10 percent for the Veteran’s left hip disability are not warranted. Overall, there are no findings that would support the assignment of a higher rating. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Jack S. Komperda Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Costello, 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.