Citation Nr: 21015707 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 14-08 865 DATE: March 18, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for right trochanter bursitis, claimed as hip pain is denied. Entitlement to a rating in excess of 10 percent for limitation of extension of right hip is denied. Entitlement to a rating in excess of 10 percent for limitation of adduction of right hip is denied. REMANDED Entitlement to a disability rating in excess of 10 percent for residuals, medial meniscus and anterior cruciate ligament tears, status post reconstruction surgery, right knee is remanded. FINDINGS OF FACT 1. The Veteran’s right trochanter bursitis symptoms are evaluated based on limitation of motion of the affected parts. 2. At no point during the period on appeal has the Veteran’s right trochanter bursitis manifested as limitation of abduction such that motion beyond 10 degrees is lost; as limitation of flexion of the thigh to 30 degrees or less; and/or as limitation of extension of the thigh. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 10 percent for right trochanter bursitis, claimed as hip pain, have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.7, 4.71a. 2. The criteria for entitlement to a disability rating in excess of 10 percent for limitation of extension of right hip have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.7, 4.71a. 3. The criteria for entitlement to a disability rating in excess of 10 percent for limitation of adduction of right hip have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.7, 4.71a. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from April 1994 to May 1997. These matters originate from a May 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). These matters return to the Board of Veterans’ Appeals (Board) following an October 2020 remand. A remand by the Board confers on the Veteran, as a matter of law, the right to substantial compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). As discussed further below, the Board finds that there has been substantial compliance with its October 2020 remand directives as they relate to the Veteran’s right hip claims. 1. Entitlement to a disability rating in excess of 10 percent for right trochanter bursitis, claimed as hip pain; entitlement to a rating in excess of 10 percent for limitation of extension of right hip; and entitlement to a rating in excess of 10 percent for limitation of adduction of right hip are denied. A review of the current claims’ procedural history is necessary to clarify the scope of the claims currently on appeal. Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. In August 2002 the Veteran was granted service connection for right trochanteric bursitis, secondary to a service-connected right knee disability. The Veteran’s right trochanteric bursitis was identified by Diagnostic Code 5019 (“bursitis”). 38 C.F.R. § 4.71a, both as written in 2002 and currently, directs the rater to evaluate disabilities identified with Diagnostic Code 5019 based on limitation of motion of the affected parts, entailing reference to other diagnostic codes. Disabilities of the hip and thigh are rated under diagnostic codes 5250 through 5254. In August 2002 the RO assigned the Veteran’s right trochanteric bursitis rating of 10 percent under Diagnostic Code 5019 based on painful motion of the right hip on extension and adduction. In January 2011 the Veteran filed a claim for an increased rating for his right trochanteric bursitis. This claim was denied by the RO in May 2012. The Veteran timely initiated and perfected an appeal. The right trochanteric bursitis claim was remanded by the Board in January 2016. Following development ordered in the remand, in a March 2016 supplemental statement of the case (SSOC), the RO continued the 10 percent rating of the Veteran’s right trochanteric bursitis, and in an April 2016 rating decision the RO granted the Veteran two new, separate ratings for symptoms associated with his right trochanteric bursitis: a 10 percent rating for limitation of adduction of the right hip (diagnostic code 5253), and a 10 percent rating for limitation of extension of the right hip (diagnostic code 5251). As the highest possible rating had not been assigned, the Veteran’s appeal right trochanteric bursitis (diagnostic code 5019) claim continued. See AB v. Brown, 6 Vet. App. 35 (1993). Further, in January 2017 the Veteran initiated an appeal of the April 2016 rating decision as to his right hip adduction (diagnostic code 5253) and extension (diagnostic code 5251) ratings. The right trochanteric bursitis (diagnostic code 5019) claim was returned to the Board and remanded in April 2018 and again in October 2020. In November 2020 the RO issued an SSOC addressing both the Veteran’s right trochanteric bursitis (diagnostic code 5019) claim as remanded by the Board in October 2020 and his right hip adduction (diagnostic code 5253) and extension (diagnostic code 5251) ratings. All three claims were returned to the Board in December 2020. As Diagnostic Code 5019 provides that appropriate rating of the Veteran’s right trochanteric bursitis entails evaluation of limitation of motion of the affected parts, the issues of appropriate ratings under Diagnostic Codes 5253 and 5251 do not constitute separate claims, but rather extensions of the issue of the appropriate rating for the Veteran’s right trochanteric bursitis. With respect to disabilities of the hip and thigh, the versions of 38 C.F.R. § 4.71a in effect at the time of the Veteran’s January 2011 claim and now are substantively similar with only stylistic differences. Under 38 C.F.R. § 4.71a the following diagnostic codes are applicable to disabilities of the hip and thigh: 5250 (hip, ankylosis of); 5251 (thigh, limitation of extension), 5252 (thigh, limitation of flexion); 5253 (thigh, impairment of, based on abduction, adduction, and/or rotation); 5254 (hip, flail joint); and 5255 (femur, impairment of). The record does not reflect any ankylosis of the Veteran’s hip; the presence of a flail joint; or any impairment of the Veteran’s femur. A 10 percent rating is the highest rating available under Diagnostic Code 5251 (thigh, limitation of extension). A disability rating in excess of 10 percent under diagnostic code 5252 requires a showing of limitation of flexion of the thigh to 30 degrees or less. A disability rating in excess of 10 percent under diagnostic code 5253 (thigh, impairment of) requires a showing of limitation of abduction such that motion is lost beyond 10 degrees. An October 2011 VA examiner documented right hip flexion of 125 degrees or greater, with painful motion beginning at 110 degrees; right hip extension of greater than 5 degrees, with painful motion beginning at greater than 5 degrees; no loss of abduction beyond 10 degrees; and no loss of ability to cross legs or toe out. In February 2016 the Veteran submitted a private evaluation by a physical therapist, dated September 2015. The September 2015 evaluation reflects right hip flexion of 92 degrees; 29 degrees of internal rotation; and 33 degrees of external rotation. The evaluation does not reflect range of motion measurements for hip abduction, adduction, or extension. At his September 2015 Board hearing the Veteran testified that after as little as 10 minutes of remaining in a seated position he would begin to experience a burning pain, necessitating that he favor his right side, and/or stand up and move around, or take medication, to relieve the pain. In March 2016 a VA examiner documented right hip flexion of 90 degrees; limitation of hip extension to 0 degrees; abduction of 20 degrees; and adduction of 20 degrees. The examiner noted that the Veteran’s adduction was limited such that he could not cross his legs. External rotation was limited to35 degrees and internal rotation to 30 degrees. The examiner documented that pain noted on examination caused functional loss of flexion, extension, abduction, adduction, external rotation, and internal rotation. The examiner stated that pain and adhesions resulted in “less movement.” The examiner recorded that the Veteran did not report flare ups and noted evidence of pain with weight bearing. The examiner recorded the Veteran’s report that his chronic lateral right hip pain increased with prolonged standing and walking. In October 2018 a VA examiner documented right hip flexion of 100 degrees; extension of 30 degrees; abduction of 45 degrees; and adduction of 25 degrees. The Veteran’s adduction was not limited such that he could not cross his legs. External and internal rotation were recorded at 60 and 40 degrees, respectively. The examiner documented pain on flexion causing functional loss. Flare-ups were reported but In October 2020 the Board determined that the October 2018 VA examination was inadequate under Sharp v. Shulkin, 29 Vet. App. 26 (2017) as the examiner had declined to opine as to whether pain, weakness, fatigability or incoordination significantly limited the Veteran’s functional ability after repetitive use over time and/or during flare ups. The examiner stated that they were unable to so opine as the examination was not being conducted during a flare up. Mere lack of occasion to observe the joint during a flare-up or after prolonged use is an insufficient basis for finding it speculative to respond. Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017). If the examiner determines that he or she cannot offer an opinion without resorting to speculation, it is only acceptable after determining it is not based on the absence of procurable information or on a particular examiner’s shortcomings or general aversion to offering an opinion on issues not directly observed. It must be clear that the examiner considered all procurable and assembled data before stating that an opinion cannot be reached, and the examiner must explain the basis for his or her conclusion that a non-speculative opinion cannot be offered. The statement that an opinion cannot be provided without resort to speculation must be based on a lack of knowledge among the “medical community at large” and not the insufficient knowledge of the specific examiner. Id. at33. Accordingly, the Board remanded the Veteran’s right hip claim for a new medical opinion addressing limitation of motion during flare-ups and following repetitive use. An addendum opinion was obtained in November 2020, by a different examiner. The November 2020 examiner stated as follows with respect to repetitive use over time and flare ups: “In regard to the question “[d]oes pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over time,” the response is “No.” Though (the) Veteran reports increased pain and stiffness with prolonged use of the right hip, the 2018 DBQ examination revealed no change in function or ROM after 3 repetitions of use, and improved ROM overall relative to 2016 DBQ examination of the right hip. Therefore, as baseline is improved and short term activity does not compromise right hip function or ROM, it cannot be established that any pain, weakness, fatigability or incoordination result in additional loss of ROM or loss of function after repetitive use over time. After review of the Veteran’s records including the order request, DBQ, physical exam, reported history and subjective complaints, and relevant evidence of record, and using my medical knowledge and expertise, I have no basis to offer additional losses of function or motion with repetitive use . . . In regard to the question “[d]oes pain, weakness, fatigability or incoordination significantly limit functional ability with flare ups,” the response is “No.” Though (the) Veteran reports increased pain and stiffness during flare ups of the right hip, the 2018 DBQ examination revealed no change in function or ROM after 3 repetitions of use, and improved ROM overall relative to 2016 DBQ examination of the right hip. As the right hip baseline is improved relative to 2016, and as (the) Veteran's right hip function and ROM remain unchanged after short term activity, it cannot be established that any pain, weakness, fatigability or incoordination result in additional loss of ROM or loss of function during flare up. Following review of the Veteran’s history including subjective complaints, relevant evidence, and objective examination findings, and using my clinical judgement and medical expertise, I have identified no basis to offer additional losses of motion or function during a flare up . . . There is no case specific information that alters the fact that no objective assessment of flare up or repetitive use over time can be made without examination under the circumstances of flare up or repetitive use over time. As the medical community at large will attest, any assessments or conclusions attempted without such examination are, by definition, subjective and without evidentiary weight. Any estimate of changes in ROM or function then during flare ups and/or after repetitive use over time would be too speculative to be considered reasonable supporting evidence for any given condition. For the same reasons discussed above, range of motion in active and passive motion and weight bearing and non-weight-bearing also cannot be estimated after the fact without resorting to mere speculation that cannot reasonably be considered definitive. The medical community at large agrees that retrospective determination for range of motion in active and passive motion and weight bearing and non-weight-bearing cannot be established with any certainty.” The Board finds the above opinion adequately responsive to the October 2020 remand directives, with regard to a lack of ability of any medical provider, case-specific information notwithstanding, to opine as to limitation of motion during flare-ups and following repetitive use without direct observation of the Veteran under such conditions. The requirements of Sharp have been met, and the Board’s October 2020 remand directives have been substantially complied with consistent with Stegall. Therefore, the Board concludes that it is appropriate to adjudicate the Veteran’s right hip claim based on the evidence currently of record. With respect to the Veteran’s right trochanteric bursitis rating under Diagnostic Code 5019, the Board concludes that there is no legal basis to grant a disability rating in excess of 10 percent. 38 C.F.R. § 4.71a directs raters to evaluate bursitis based on limitation of motion of the affected body parts. As discussed further below, separate ratings have been granted accordingly. In light of the foregoing, a grant of a disability rating in excess of 10 percent for right trochanteric bursitis for the period on appeal is not warranted. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.7, 4.71a. With respect to limitations of motion of the hip and/or thigh caused by the Veteran’s right trochanteric bursitis, the evidence does not reflect limitation of flexion of the thigh to 30 degrees or less (Diagnostic Code 5252) or limitation of abduction such that motion is lost beyond 10 degrees (Diagnostic Code 5253). While the evidence does reflect extension limited to 5 degrees or less, the Veteran is already in receipt of the highest available rating under Diagnostic Code 5251. 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. 38 C.F.R. § 4.7. Here, the Board finds that the weight of the evidence is against the application of a disability rating in excess of 10 percent for limitation of extension of the right hip due to right trochanteric bursitis and/or a disability rating in excess of 10 percent for limitation of adduction of the right hip due to right trochanteric bursitis; thus, there is no question to resolve and the lower rating is appropriate. Id. The evidence does not reflect that the Veteran has any right hip symptoms or functional limitations that implicate other diagnostic codes related to his right trochanteric bursitis. In light of the foregoing, a grant of a disability rating in excess of 10 percent for limitation of extension of the right hip due to right trochanteric bursitis and/or a disability rating in excess of 10 percent for limitation of adduction of the right hip due to right trochanteric bursitis for the period on appeal are not warranted. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.7, 4.71a. Finally, the Board notes that revisions were made to the rating schedule effective February 7, 2021. However, the code sections at issue here were unaffected by those changes. REASONS FOR REMAND Entitlement to a disability rating in excess of 10 percent for residuals, medial meniscus and anterior cruciate ligament tears, status post reconstruction surgery, right knee is remanded. The Veteran’s right knee disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5257 (“Knee, other impairment of). Revisions to 38 C.F.R. § 4.71a took effect on February 21, 2019, that included changes to Diagnostic Code 5257. Under the revised provisions of 38 C.F.R. § 4.71a, the rating criteria for Diagnostic Code 5257 include determining whether a Veteran’s disability constitutes an incomplete or complete ligament tear involving failed repair and/or prescription by a medical provider of an assistive device or bracing for ambulation. To date, no examiner has evaluated the Veteran’s right knee disability under the revised criteria. 38 C.F.R. § 4.71a (2021). Specifically, the Board notes January 2013 and November 2018 entries in the Veteran’s VA treatment records reflecting that he uses a knee brace. However, it is unclear whether this brace has been prescribed by a medical treating provider. Further, an October 2011 VA examiner reviewed the Veteran’s medical history and described surgeries on the Veteran’s medial meniscus and/or anterior cruciate ligament in 1995, 1996, and 2001. It is unclear whether these surgeries constitute “failed” repair within the meaning of 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2021) and/or whether the Veteran’s ligament tear was complete or incomplete. In light of the foregoing, the Board concludes that the Veteran’s right knee claim should be remanded to obtain a VA medical examination that evaluates the Veteran’s right knee disability in a manner consistent with the revisions to 38 C.F.R. § 4.71a. The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his right knee disability. The claims folder, including a copy of this remand, must be made available to the examiner and such review should be noted in the examination report. The examiner should specifically address which of the following descriptions best matches the severity of the Veteran’s right knee disability: (a.) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. (b.) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation. (c.) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. (d.) Sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. C. Sametshaw 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.