Citation Nr: 21021992 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 14-27 353 DATE: April 14, 2021 ORDER Entitlement to a rating of 10 percent prior to August 9, 2012, for right femoral stress fracture residuals with right hip bursitis and arthritis is granted. Entitlement to a rating in excess of 10 percent as of August 9, 2012 for right femoral stress fracture residuals with right hip bursitis and arthritis is denied. REMANDED Entitlement to service connection for left carpal tunnel syndrome is remanded. Entitlement to service connection for right carpal tunnel syndrome is remanded. Entitlement to service connection for Grave's disease is remanded. FINDINGS OF FACT 1. Prior to August 9, 2012, arthritis of the right hip resulted in painful motion resulting in noncompensable limitation of motion of a major joint. 2. The Veteran’s right hip disability is manifested by painful motion and flare-ups that result in functional loss, but do not result in a decreased range of motion of a flexion limited to 45 degrees; limitation of motion lost beyond 10 degrees; femur impairment; hip flail joint; or unfavorable ankylosis. CONCLUSIONS OF LAW 1. Prior to August 9, 2012, the criteria for a rating of 10 percent for right femoral stress fracture residuals with right hip bursitis and arthritis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5003–5252. 2. The criteria for a rating in excess of 10 percent for right femoral stress fracture residuals with right hip bursitis and arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5003–5252. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1999 to May 2000. She had additional duty with the Army Reserve. These claims come before the Board of Veterans’ Appeals (Board) on appeal from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (AOJ) in Montgomery, Alabama. The Veteran appeared at a May 2018 videoconference hearing before the undersigned Veterans Law Judge. The hearing transcript is of record. Entitlement to a compensable rating prior to August 9, 2012, and a rating in excess of 10 percent as of August 9, 2012, for right femoral stress fracture residuals, with right hip bursitis and arthritis The Veteran contends that she is entitled to a rating in excess of 0 percent prior to August 9, 2012, and in excess of 10 percent as of August 9, 2012, because the symptoms are worse than contemplated by the assigned ratings. More specifically, the Veteran alleges painful movement, flare-ups, and an inability to perform certain daily activities. Prior to August 2012, the Veteran’s disability was rated under 38 C.F.R. § 4.71a, Diagnostic Code 5262, for impairment of the tibia and fibula. Under Diagnostic Code 5262, a 10 percent rating is warranted for malunion of tibia and fibula with slight knee or ankle disability. A 20 percent rating is warranted for malunion of the tibia and fibula with moderate knee or ankle disability. A 30 percent rating is warranted for malunion of the tibia and fibula with marked knee or ankle disability. A 40 percent rating is warranted for nonunion of the tibia and fibula with loose motion requiring a brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262. As of August 2012, the Veteran’s right femoral stress fracture residuals, with right hip bursitis and arthritis is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5252, for limitation of flexion of the thigh. Under Diagnostic Code 5252, a 10 percent rating is warranted for flexion limited 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. A maximum 40 percent rating is warranted for flexion limited to 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5252. However, since the Veteran did not exhibit a limited range of motion, she was assigned a rating under Diagnostic Code 5003 based on x-ray evidence of arthritis with noncompensable limitation of motion of the joint. Arthritis or degenerative joint disease established by X-ray findings will be rated based on limitation of motion under the appropriate diagnostic code for the specific joint involved. When the limitation of motion of the specific joint involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each major joint or group of minor joints affected by limitation of motion. A rating of 20 percent is warranted where there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. A rating for arthritis cannot be combined with a rating for limitation of motion of the same joint. 38 C.F.R. § 4.71a, Diagnostic Code 5003. When rating 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. The rater must consider whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Nonetheless, even when the listed factors are relevant when rating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to the applicable diagnostic code. A separate or higher rating under 38 C.F.R. § 4.40 or 38 C.F.R. § 4.45 itself is not appropriate. Thompson v. McDonald, 815 F.3d 781 (Fed. Cir. 2016). Painful motion is a factor to be considered with any form of arthritis, but is not limited to disabilities involving arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). In a September 2010 statement, the Veteran reported ongoing pain in the hip joints and femur area since service. In a January 2012 VA hip examination, the examiner noted a diagnosis of possible hip arthrosis and bursitis. The Veteran reported flare-ups that include intermittent paint and required her to shift and move. The Veteran’s right hip had flexion to 125 degrees or greater and extension greater than 5 degrees. Abduction was not lost beyond 10 degrees, and was not limited such that the Veteran could not cross his legs. There was no additional limitation in range of motion following repetitive-use testing or functional loss or impairment. Muscle strength testing was normal. There was no ankylosis, malunion or nonunion of the femur, flail hip joint, or leg length discrepancy. An MRI 2010 report found probable minor joint space narrowing of the bilateral hips. In an April 2012 VA hip examination, the examiner noted the diagnosis of right femoral stress fracture. Subsequent medical evidence shows right femoral stress fracture with right hip bursitis. An October 2013 rating decision increased the rating from 0 percent to 10 percent effective August 9, 2012, the date the Veteran submitted a disagreement with the rating assigned in a July 2012 rating decision. The 10 percent rating was assigned based on painful motion. In a September 2012 private treatment record, Dr. A.M. noted that the Veteran’s disability caused trouble with squatting, steps, heavy lifting, and long hours of standing or leg-based activities. At an August 2019 VA examination, the examiner noted an April 2010 diagnosis of right hip arthritis. The Veteran reported symptoms included aching in the right hip, burning in the front of the hip, stiffness, and leg numbness. The Veteran’s right hip was marked as having a normal range of motion. The Veteran had flexion to 125 degrees; extension to 30 degrees; abduction to 45 degrees; adduction to 25 degrees; external rotation to 60 degrees; and internal rotation to 40 degrees. Pain noted on examination, but it did not result in nor cause functional loss. Pain was exhibited in abduction, adduction, external rotation, and internal rotation. There was evidence of localized tenderness related to bursitis. There was also evidence of pain with weight bearing, but no objective evidence of crepitus. Pain noted on examination, but it did not result in nor cause functional loss. Pain was exhibited in abduction, adduction, external rotation, and internal rotation. At an August 2019 VA examination, there was evidence of localized tenderness related to bursitis. There was also evidence of pain with weight bearing, but no objective evidence of crepitus. There was no loss of function or range of motion following repetitive-use testing. Pain was noted as being the cause of functional loss. No muscle atrophy, no ankylosis, and no malunion or nonunion of femur on examination. The Veteran had moderate to severe limitation in the ability to perform in occupations that required prolonged walking, running, or any amount of squatting or bending at the waist, secondary to right hip pain. There was objective evidence of pain when the right hip was used in nonweight-bearing. At an October 2020 VA examination, the examiner noted a 1999 diagnosis of right femur stress fracture with right hip bursitis and arthritis. The Veteran reported that the symptoms had worsened since onset, including right hip pain that varied from a 5 to 9 on a scale of 1 to 10. The Veteran avoided prolonged walking, standing, running, squatting, bending at the waist, and hiking. The Veteran took medication to help alleviate pain caused by the hip. The Veteran reported hip pain as a 9 on a scale of 1 to 10 during a flare-up. The right hip had an abnormal range of motion. The Veteran had right hip flexion to 90 degrees; extension to 30 degrees; abduction to 45 degrees; adduction to 25 degrees; external rotation to 60 degrees; and internal rotation to 20 degrees. The examiner indicated that range of motion itself did not contribute to functional loss, but pain contributed to functional loss in all ranges of motion. There was evidence of localized tenderness or pain on palpation in the groin area due to arthritis. There was evidence of pain with weight-bearing, and no evidence of crepitus. Following repetitive-use testing, during the October 2020 VA examination, there was no additional loss of function or range of motion. Following repetitive use over time, the Veteran’s range of motion decreased with pain being a contributing factor to functional loss. The Veteran had flexion to 85 degrees, extension to 25 degrees, abductions to 40 degrees, adduction to 20 degrees, external rotation to 55 degrees, and internal rotation to 15 degrees. Pain significantly limited functional ability with flare ups. There was no muscle atrophy, ankylosis, malunion or nonunion of femur, flail hip joint, or leg length discrepancy on examination. There was no objective evidence of pain on nonweight-bearing. Passive range of motion was the same as the active range of motion. The planes that exhibited an objective evidence of pain on passive range of motion were the same as active range of motion. The Board acknowledges that the medical evidence of record notes a diagnosis of right hip arthritis throughout the duration of this appeal dating back to December 2004. Furthermore, the Veteran has consistently complained of painful motion of the right hip and the evidence shows a noncompensable level of limitation of motion of the right hip at all times under consideration. Accordingly, a 10 percent rating, but not higher, is warranted as of September 30, 2010, the date service connection was established, for painful and limited motion of the right hip with X ray evidence of arthritis. The Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent for right femoral stress fracture residuals, with right hip bursitis and arthritis. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, weakened movement, excess fatigability, repetitive use, and pain during flare-ups. However, even considering the Veteran’s reports of symptoms and noted functional loss, the degree of additional limitation indicated by the statements that she cannot stand or sit for too long without becoming stiff would not result in symptoms more nearly approximating flexion limited to 30 degrees. The Board has also considered the other Diagnostic Codes pertaining to the hip and thigh. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017). The Board finds that the evidence does not show ankylosis of the right hip, limitation of extension to 5 degrees or less, limitation of abduction with motion lost beyond 10 degrees, limitation of adduction such that the Veteran cannot cross her legs, limitation of rotation such that the Veteran cannot toe out more than 15 degrees, hip flail joint, or nonunion of malunion of the femur. Therefore, a higher rating is not warranted under any of those other rating criteria for hip disabilities. 38 C.F.R. § 4.71a, Diagnostic Codes 5250-5255. Accordingly, the Board finds that the evidence supports the assignment of a 10 percent initial rating, but not higher, for a right hip disability as of September 30, 2010. The Board finds that the preponderance of the evidence is against the appeal for a rating in excess of 10 percent for right femoral stress fracture residuals, with right hip bursitis and arthritis. Therefore, the claim for a rating higher than 10 percent must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. Entitlement to service connection for bilateral carpal tunnel syndrome is remanded. 2. Entitlement to service connection for Grave's disease is remanded. In September 2018 and May 2020, the Veteran’s claims were remanded to verify periods of active duty training (ACDUTRA) or inactive duty training (INACDUTRA). The regional office was instructed to contact the National Personnel Records Center (NPRC) or the appropriate service entity and request verification of the Veteran’s complete periods of active duty, active duty for training, and inactive duty for training with the Army Reserve. Unfortunately, there has not been substantial compliance with the remand requests regarding and further remand is required. Stegall v. West, 11 Vet. App. 268 (1998). The matters are REMANDED for the following action: Contact the National Personnel Records Center or the appropriate service entity and request verification of the Veteran’s complete periods of active duty, active duty for training, and inactive duty for training with the Army Reserve. List all verified periods of active for training and inactive duty for training. If the entity is unable to provide that information, a letter should be included in the file indicating that the requested information cannot be provided. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Cross, 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.