Citation Nr: 21022298 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 13-17 147 DATE: April 15, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for subluxation with fracture, left acetabulum and hip, under DC 5299-5255, is denied. Entitlement to a compensable rating for subluxation with fracture, left acetabulum and hip, thigh impairment, under DC 5003-5253, is denied. Entitlement to a compensable rating, for subluxation with fracture, left acetabulum and hip, limitation of flexion, under DC 5003-5252, is denied. Entitlement to a a disability rating in excess of 20 percent for osteoarthritis right hip associated with subluxation with fracture, left acetabulum and hip, under DC 5003-5255, is denied. Entitlement to a compensable disability rating for osteoarthritis right hip, limitation of extension associated with subluxation with fracture, left acetabulum and hip, under DC 5251, is denied. Entitlement to a compensable disability rating for osteoarthritis right hip, impairment of thigh, associated with subluxation with fracture, left acetabulum and hip, under DC 5253, is denied. FINDINGS OF FACT 1. For the entire appeal period, the Veteran’s left hip disability has manifested by range of motion of extension to 20 degrees, at worst, with “normal” muscle strength testing, and no other reduction in muscle strength nor muscle atrophy 2. With regards to left hip limitation of flexion, at least up until September 13, 2019, the Veteran manifested limitation to 90 degrees, with objective evidence of painful motion at 70 degrees, at worse. 3. While the September 2019 VA examination shows left hip flexion limited to 35 degrees, there were no additional symptoms or impairments other than painful motion, functional limitation, and limitation of motion, and these symptoms were already taken into consideration when evaluating the severity of his general hip disability. 4. While the June 2012 VA examination shows evidence of limited adduction to the extent that the Veteran cannot cross legs and limited rotation to such that the Veteran cannot toe-out more than 15 degrees, the subsequently obtained VA examinations consistently provide that the Veteran’s left thigh adduction is not limited to such that he cannot cross legs, and note that he has “normal” muscle strength, with no reduction in muscle strength/muscle atrophy/ankylosis; moreover, even during the June 2012 VA examination, the Veteran was able to perform repetitive use testing without any additional loss of ROM, and manifested normal muscle strength for abduction, with no evidence of ankylosis or any additional conditions. 5. For the entire appeal period, the Veteran’s right hip disability has manifested by range of motion of extension to 10 degrees, at worst, with “normal” muscle strength testing, and no evidence of reduction in muscle strength, muscle atrophy, or ankylosis; at least up until September 13, 2019, the Veteran manifested range of motion of flexion limited to 30 degrees, at worst. 6. While the September 2019 VA examination shows evidence of right hip flexion limited to 30 degrees, along with painful motion and reports of severe flare-ups resulting in functional limitation, there were no additional symptoms or impairments other than painful motion, functional limitation, and limitation of motion, and these symptoms were already taken into consideration when evaluating the severity of his general hip disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 20 percent, under DC 5299-5255, for subluxation with fracture, left acetabulum and hip, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.69, 4.71, 4.71a, Diagnostic Code 5299-5255. 2. The criteria for entitlement to a compensable rating for subluxation with fracture, left acetabulum and hip, thigh impairment, under DC 5003-5253, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.69, 4.71, 4.71a, Diagnostic Code 5003-5253. 3. The criteria for entitlement to compensable rating for subluxation with fracture, left acetabulum and hip, limitation of flexion, under DC 5003-5252, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.69, 4.71, 4.71a, Diagnostic Code 5003-5252. 4. The criteria for entitlement to a disability rating in excess of 20 percent for osteoarthritis right hip associated with subluxation with fracture, left acetabulum and hip, under DC 5003-5255 have not been met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.6, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003-5255. 5. The criteria for entitlement to a compensable disability rating for osteoarthritis right hip, limitation of extension associated with subluxation with fracture, left acetabulum and hip, under DC 5251, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.69, 4.71, 4.71a, Diagnostic Code 5251. 6. The criteria for entitlement to a compensable disability rating for osteoarthritis right hip, impairment of thigh associated with subluxation with fracture, left acetabulum and hip, under DC 5253, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.69, 4.71, 4.71a, Diagnostic Code 5253. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1975 to October 1978. This matter is before the Board of Veterans’ Appeals (Board) on appeal from November 2004 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared before the undersigned Veterans Law Judge during a July 2017 Travel Board hearing and a transcript of that proceeding is of record. As discussed during the July 2017 Board hearing, his other appeals concerning increased ratings for knees and compensation under 38 U.S.C. § 1151 for residuals of a pterygium excision are under the jurisdiction of another VLJ who held a hearing on those issues in 2012, and those issues were decided in 2018 and 2020 Board decisions. In November 2018, the claims for the left and right hip disabilities were remanded. Having reviewed the records, the Board finds that there has been substantial compliance with the previous Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Pursuant to the Board remand, treatment records and VA examination/medical opinion have been obtained, and based on the latter evidence (finding that the Veteran’s pain/functional impairments are caused by his bilateral hip disability), the Veteran has also been granted four separate disability ratings (see August 2020 rating decision and SSOC). While a claim for entitlement to service connection for tinnitus was also remanded, this claim is no longer in appellate status, as it was actually granted in a February 2018 rating decision, effective October 15, 2015, with a 10 percent disability rating. Because this decision represents a full grant of the benefit sought on appeal, this issue is no longer before the Board. See Grantham v Brown, 114 F. 3d 1156 (Fed Cir 1997). Additional VA treatment records and examinations have been associated with the Veteran’s claims file since the issuance of the August 2020 Supplemental Statement of the Case on the hip ratings. However, the Board finds that a waiver of the RO’s initial consideration of that evidence is not required, as they are not pertinent to the issues on appeal. These VA treatment records merely list hip condition as an ongoing active problem, and document complaints of hip pain as well as referral made for hip treatment (i.e. acupuncture), without providing any information relating to range of motion, functional limitations or impairments, or any information pertinent to rating the conditions. Thus, the Board may proceed to adjudicate these issues at this time. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist or with the conduct of his Board hearing. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Thus, the Board need not discuss any potential issues in this regard. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is a balance of positive and negative evidence regarding any material issue, the benefit of the doubt shall be given to the claimant. See 38 U.S.C. § 5107 (b). Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. See 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert, 1 Vet. App. at 54. The Board has reviewed all the evidence of record. Although the Board has an obligation to provide adequate reasons and bases supporting its decisions, there is no requirement that the Board discuss every piece of evidence in the record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board will summarize the relevant evidence, as deemed appropriate, and the Board’s analysis will focus on what the evidence shows, or fails to show, as to each claim. Increased Rating Disability ratings are determined by applying the criteria established in VA’s Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes (DCs). 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.20. When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2018). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2018). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found; this practice is known as staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to higher disability ratings for the left hip disabilities The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. While the assignment of separate evaluations for separate and distinct symptomatology is not precluded, it is only permitted where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); see also VA Gen. Coun. Prec. 92004 (Sep. 17, 2004) ("[T]he key consideration in determining whether rating under more than one diagnostic code is in order is whether the ratings under different diagnostic codes would be based on the same manifestation of disability or whether none of the symptomatology upon which the separate ratings would be based is duplicative or overlapping.") As a result of the prior remand, the Veteran now has the following separate ratings for his left hip condition: • 20 percent for subluxation with fracture, left acetabulum and hip, under DC 5299-5255 from October 26, 2001; • 0 percent for subluxation with fracture, left acetabulum and hip, limitation of flexion, under DC 5003-5252, from December 20, 2017; and • 0 percent for subluxation with fracture, left acetabulum and hip, thigh impairment, under DC 5003-5253, from December 20, 2017. 1. Entitlement to a disability rating in excess of 20 percent for subluxation with fracture, left acetabulum and hip, under DC 5299-5255 The Veteran seeks a higher disability rating for his left hip condition. He described his hip condition as “pretty severe” with “a lot of pain,” and reported receiving acupuncture treatment every 3 weeks for the past year or two. He reported instability and the leg going out due to his left hip condition, and further identified the following as functional impacts related to his left hip disability: diminished ability to walk for a prolonged period of time/sit for more than a few minutes per day/walk more than a block. The current 20 percent rating under DC 5299-5255 effective October 26, 2001, for his subluxation with fracture, left acetabulum and hip, is based on femur impairment. 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. Prior to the regulatory change, under DC 5255 (femur, impairment of), the current 20 percent rating requires malunion of the femur moderate knee or hip disability. A 30 percent rating requires marked knee or hip disability. A 60 percent rating requires either a fracture of the surgical neck of the femur with false joint or a fracture of the shaft or anatomical neck of the femur with nonunion, but without loose motion, and with weightbearing preserved with the aid of a brace. An 80 percent rating requires a fracture of the shaft or anatomical neck of the femur with nonunion, with loose motion (spiral or oblique fracture). See 38 C.F.R. § 4.71a, DC 5255. As of February 7, 2021, under the amended criteria, the DC 5255 deleted the criteria for 10 through 30 percent ratings (“malunion of femur”), and replaced instead with the following: “Evaluate under diagnostic codes 5250–5254 for the hip, whichever results in the highest evaluation.” With regards to the criteria for a 60 percent and an 80 percent rating, they are identical to those of the pre-amended version of DC 5255. Additionally, DCs 5250 through 5254 have not changed under the revised rating schedule. The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability for the time period beginning one year before filing the claim until the VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). These claims are on appeal from a September 2003 request for an increase. The Veteran underwent multiple VA examinations throughout the appeal period: June 2003, June 2004, June 2012, December 2017, and September 2019. Normal range of motion of the hip is flexion to 125 degrees, extension to 30 degrees, adduction to 25 degrees, abduction to 45 degrees, external rotation to 60 degrees and internal rotation to 40 degrees. See 38 C.F.R. § 4.71, Plate II, and VA examination report November 2019, page 4. Again, normal flexion is to 125 degrees. The medical evidence showed the following: • June 2003 VA examination, flexion was to 120 degrees, • June 2004, flexion to 100 degrees • June 2007 VA examination, flexion to 125 degrees, • June 2012 VA examination, 90 degrees, with objective evidence of painful motion at 70 degrees • December 2017, flexion was to 115 degrees • September 2019 flexion was to 35 degrees Again, normal extension is to 30 degrees. The medical evidence showed the following: • June 2003 VA examination, extension to 25 degrees • June 2004, extension to 30 degrees • June 2007, extension to 30 degrees • June 2012 VA examination, extension greater than 5 degrees, with objective evidence of painful motion at greater than 5 degrees • December 2017, extension to 20 degrees • September 2019, extension to 20 degrees Again, normal adduction is to 25 degrees. The medical evidence showed the following: • June 2003 VA examination, adduction to 40 degrees • June 2004, adduction to 16 degrees • June 2007, adduction to 25 degrees • June 2012 VA examination, evidence of limited adduction to the extent of the Veteran cannot cross his legs • December 2017, adduction to 25 degrees • September 2019, adduction to 15 degrees - adduction not limited to such that he cannot cross legs. Again, normal abduction is to 45 degrees. The medical evidence showed the following: • June 2003 VA examination, abduction to 20 degrees • June 2004, abduction to 25 degrees • June 2007, abduction to 45 degrees • June 2012 VA examination, no evidence of abduction lost beyond 10 degrees • December 2017, abduction to 45 degrees • September 2019, abduction to 25 degrees Again, normal external rotation is to 60 degrees. The medical evidence showed the following: • June 2003 VA examination, external rotation to 50 degrees • June 2004, external rotation to 60 degrees • June 2007, external rotation to 60 degrees • December 2017, external rotation to 50 degrees • September 2019, external rotation to 25 degrees Again, normal internal rotation is to 40 degrees. The medical evidence showed the following: • June 2003 VA examination, internal rotation to 25 degrees • June 2004, internal rotation to 40 degrees • June 2007, internal rotation to 40 degrees • June 2012 VA examination, evidence of limited rotation limited to such that the Veteran cannot toe-out more than 15 degrees. • December 2017, internal rotation to 40 degrees. • September 2019, internal rotation to 15 degrees During the June 2003 VA examination, there was mild pain with extreme of internal and external rotation of the left hip, but no evidence of fatigue, weakness, lack of endurance, incoordination of the knees, or ankylosis. In June 2004, the Veteran was diagnosed with status-post left acetabulum and hip fracture with subluxation. During the examination, he manifested tightness in his left hip with loss of motion and pain rated as 8/10. He manifested flexion to 100 degrees with no pain, extension to 30 degrees with pain at 30 degrees, adduction to 16 degrees with pain at 16 degrees, abduction to 25 degrees with pain at 25 degrees, external rotation to 60 degrees with no pain, internal rotation to 40 degrees with pain at 40 degrees. There was no evidence of ankylosis, but lack of endurance, fatigue, weakness, and pain were noted. During the June 2007 VA examination, the Veteran had initial range of motion without pain, fatigue, weakness, lack of endurance or incoordination. Post-repetitive use, there was no additional limitation of motion, but pain was noted on all of the range of motion, accompanied with fatigue, weakness, lack and endurance with pain. His April 2011 VA treatment records show left hip range of motion of flexion to 100 degrees, and right hip flexion to 130 degrees. His voluminous treatment records primarily show continuous treatments received for his hip condition. During the June 2012 VA examination, the Veteran was diagnosed with subluxation with fracture of left hip and acetabulum. He reported flare-ups resulting in constant pain that worsens with walking more than 15 minutes, standing more than 30 minutes, or sitting more than an hour. His initial ROM was to 90 degrees, with objective evidence of painful motion at 70 degrees, extension greater than 5 degrees, with objective evidence of painful motion at greater than 5 degrees. There was no evidence of abduction lost beyond 10 degrees, but the examiner indicated that there is evidence of limited adduction to the extent of the Veteran cannot cross his legs and rotation limited to such that the Veteran cannot toe-out more than 15 degrees. The Veteran was able to perform after repetitive use testing, and his ROM was the same, other than his post-test flexion (to 80 degrees). With regards to functional impairment, the following were identified: less movement than normal and pain on movement. His muscle strength for hip flexion/abduction/extension were all normal, and there was no evidence of ankylosis or any additional conditions (malunion or nonunion of femur, flail hip joint or leg length discrepancy). He was noted to occasionally use cane and regularly use brace. In December 2017, the Veteran was diagnosed with hip osteoarthritis and iliopsoas tendinitis, and he reported worsening condition, alleging pain and limited motion in the left hip/thigh. The Veteran reported flare-ups of left hip as burning pain around the hip with walking less than a block, and identified difficulty with heavy lifting as functional impairment. His initial ROM of flexion was to 115 degrees, extension to 20 degrees, abduction to 45 degrees, adduction to 25 degrees, external rotation to 50 degrees and internal rotation to 40 degrees. While the examiner indicated in the medical history that the Veteran has limited motion in his left hip and thigh area, on physical examination, his adduction was not found to be so limited to that he cannot cross his legs, and his ROM itself was not found to contribute to a functional loss. Mild to moderate sharp pain along iliopsoas muscle was noted, but was not found to cause functional loss, and there was no objective evidence of crepitus or pain with weight bearing. He was able to perform repetitive-use testing with at least three repetitions and after repetitive use over time, with no additional loss of ROM thereafter, and pain, weakness, fatigability, and incoordination were not found to significantly limit functional ability with repeated use over a period of time. His muscle strength was normal, and there was no evidence of muscle atrophy or ankylosis. He was noted to occasionally use a cane and was found to have functional impact of difficulty with being in one position for prolonged periods of time. There was no indication of malunion or nonunion of the femur, flail hip joint, or leg length discrepancy, to include fracture of surgical neck with false joint or fracture of shaft/anatomical neck. Post-Board remand, a new VA examination/medical opinion was obtained in September 2019. The Veteran was diagnosed with right hip osteoarthritis, left subluxation with fracture, left acetabulum and hip, and left hip strain. The Veteran reported flare-ups of bilateral hip occurring whenever he walks a block or stand/sit for a prolonged period, and each episode of severe flare-ups lasting for about 2-3 days, as well as stiffness/soreness. The Veteran reported inability to walk for an extended period of time as his functional impairment. His initial ROM of the left hip flexion was to 35 degrees, extension to 20 degrees, abduction to 25 degrees, adduction to 15 degrees, external rotation to 25 degrees, and internal rotation to 15 degrees, with adduction not limited to such that he cannot cross legs. His ROM itself was found to contribute to a functional loss (cannot bend joint well) and pain was noted on examination to include with flexion. There was objective evidence of localized tenderness or pain on palpation at the lateral hip that is mild, as well as pain with weight bearing, but there was no objective evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions, with no additional loss of ROM, and while the Veteran was not examined immediately after repetitive use over time, the examination was found to be medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. As for ROM during a flare-up, the examiner indicated that the Veteran was not examined during such and is unable to determine ROM without mere speculation after reviewing the Veteran’s history, current exam finings, and relevant evidence of record. There was no additional factor noted to be contributing to his hip disability. His muscle strength was normal, with no evidence of muscle atrophy or ankylosis. He was also not found to have malunion or nonunion of the femur, flail hip joint or leg length discrepancy (to include fracture of surgical neck with false joint, or fracture of shaft/anatomical neck) or use any assistive devices. There was evidence of pain on passive ROM, but none on non-weight bearing testing. Pursuant to the September 2019 VA medical opinion, the examiner further indicated that the Veteran’s hip strains can cause limited ROM at the hip joints and pain with walking. However, with regards to radiating nerve pain and most of the reported pain, the examiner indicated that such is more likely due to his sciatic condition and low back disabilities. While there are various VA treatment records from the relevant period documenting complaints of and treatment for hip pain and functional loss; however, none of them seem to provide pertinent range of motion measurements or other medical findings that would warrant a higher or separate compensable rating for this period under applicable diagnostic codes. Initially, while the Board acknowledges that under the amended version, evaluation under DC 5250-5254 (whichever results in the highest evaluation) is allowed, the Board notes that neither DC 5250 nor 5254 results in a higher evaluation as the evidence of record does not show any form of hip ankylosis or hip flail joint disabilities. Moreover, DC 5251 is not applicable because there is no evidence of limitation of left thigh extension to 5 degrees. With regards to the applicability of DC 5252 or DC 5253 resulting in a higher evaluation for the Veteran’s subluxation with fracture, left acetabulum and hip, the Board notes that he is not only already in receipt of two separate non-compensable ratings under DC 5252 and 5253. These ratings are discussed below. Therefore, the Board will proceed its analysis under DC 5255—and in doing so, the Board points out that the pre-amended version of DC 5255 to be more favorable to the Veteran as it provides 10, 20, and 30 percent ratings. After reviewing all pertinent records, the Board finds that the Veteran does not warrant a rating in excess of 20 percent under DC 5255. The review of the evidence of record consistently shows negative findings for malunion or nonunion of the femur, flail hip joint, or leg length discrepancy, to include fracture of surgical neck with false joint or fracture of shaft/anatomical neck, required for a higher rating under either version of DC 5255. Also, while the pre-amended version of DC 5255 allows a rating of 30 percent for malunion of femur with either marked knee or hip disability, the Board emphasizes that there was no indication of any malunion. Other than the findings suggestive of occasional use of cane and regular use of brace, he was consistently found to have normal muscle strength, with no evidence of muscle atrophy or ankylosis. He was also able to perform repetitive-use testing with at least three repetitions without any additional loss of ROM thereafter. Thus, the Board finds that the Veteran does not warrant a rating in excess of 20 percent throughout the appeal period for his subluxation with fracture, left acetabulum and hip. His rating, instead, was based on the severity of the hip disability as shown by factors such as limitation of motion, functional loss, muscle strength, etc. Thus, his claim is denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to a compensable rating for subluxation with fracture, left acetabulum and hip, impairment of thigh, under DC 5003-5253 As briefly addressed above, the Veteran has been granted two separate non-compensable ratings for left hip limitation of flexion under DC 5003-5252 and impairment of thigh under DC 5003-5253, respectively, effective December 20, 2017. The amended criteria of DC 5003 provide criteria for degenerative arthritis, other than post-traumatic—rather than for arthritis (hypertrophic or osteoarthritis) under the pre-amended version of DC 5003. However, in terms of the rating criteria, they have remained the same as the pre-amendment version. The amended criteria of DC 5010 provide criteria for post-traumatic arthritis, and directs rating be based on the “limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with § 4.25.” The pre-amended version of DC 5010 represents arthritis due to trauma, substantiated by x-ray findings, which in turn is to be rated under DC 5003 as degenerative arthritis (hypertrophic or osteoarthritis). 38 C.F.R. § 4.71a. The pre-amended version of DC 5003 provides degenerative arthritis established by X-ray findings will be rated based on limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. When, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating is warranted if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent rating is authorized if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. Id, DC 5003. In this case, the Veteran was noted to have bilateral hip degenerative joint disease based on x-ray findings. Notes (1) and (2) under the pre-amended version of DC 5003 provides the following: Note (1) provides 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. Note (2) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. Id., DC 5003, Notes (1) and (2). The Board finds that the Veteran is not warranted a compensable rating for his subluxation with fracture, left acetabulum and hip, impairment of thigh, under DC 5003-5253. Even though the June 2012 VA examination shows evidence of limited adduction to the extent that the Veteran cannot cross legs and limited rotation to such that the Veteran cannot toe-out more than 15 degrees, the VA examinations conducted since December 20, 2017 consistently indicate that the Veteran’s left thigh adduction is not limited to such that he cannot cross legs (see December 2017 and September 2019 VA examinations), with “normal” muscle strength and no reduction in muscle strength/muscle atrophy/ankylosis. Moreover, even during the June 2012 VA examination, the Veteran was able to perform repetitive use testing without any additional loss of ROM, and manifested normal muscle strength for abduction, with no evidence of ankylosis or any additional conditions (malunion or nonunion of femur, flail hip joint or leg length discrepancy). Thus, the Board finds that he is not warranted a compensable rating under DC 5003-5253 throughout the appeal period. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 3. Entitlement to a compensable rating for subluxation with fracture, left acetabulum and hip, limitation of flexion, under DC 5003-5252 As briefly addressed above, the Veteran is in receipt of a non-compensable rating for subluxation with fracture, left acetabulum and hip, limitation of flexion, under DC 5003-5252, effective December 20, 2017. The Board also finds that the Veteran does not warrant a compensable rating for subluxation with fracture, left acetabulum and hip, limitation of flexion, under DC 5003-5252, throughout the appeal period. Initially, the Board is cognizant of the September 2019 VA examination documenting the left hip flexion limited to 35 degrees, the Veteran’s report of severe flare-ups affecting his ability to walk a block or stand/sit for a prolonged period, as well as painful motion on flexion, ROM contributing to a functional loss and the Veteran being unable to perform after repetitive use over time. However, the Board concludes that the Veteran is not warranted a compensable rating under DC 5003-5252. The 20 percent rating the Veteran is in receipt of under DC 5299-5255 already contemplates the general hip disability, to include limitation of motion/functional impairment/painful motion, that is of moderate severity—in fact, when the Veteran was granted a higher rating of 20 percent under DC 5003-5252, various factors to include flare-ups causing limitation of motion/pain and functional loss were contemplated. Moreover, his muscle strength was consistently found to be normal, with no evidence of muscle atrophy or ankylosis, and he was able to perform repetitive-use testing with at least three repetitions, with no additional loss of ROM, even during the September 2019 VA examination. Thus, even acknowledging the Veteran’s limitation of flexion/functional impairment/painful motion noted in the September 2019 VA examination, to the extent that these symptoms have already been contemplated under the 20 percent rating under DC 5003-5255, the Board finds granting a compensable rating under DC 5252 for limitation of flexion not applicable as an impermissible pyramiding. As such, the current rating considers his functional loss, along with the severity of his pain, and the preponderance of the evidence is against ratings in excess of those assigned herein. Therefore, a non-compensable rating under DC 5003-5252 throughout the appeal period is denied. Entitlement to a higher rating for the right hip disability The Veteran seeks a higher rating for his right hip disability. He claims that he has limited range of motion and that his right hip affects his ability to walk/sit/stand for an extended period of time. The Veteran is currently in receipt of a 20 percent rating under DC 5003-5255 for his right hip osteoarthritis disability. As a result of the prior remand, the Veteran now also has the following separate ratings for his right hip condition: • 0 percent for osteoarthritis right hip, limitation of extension, under DC 5251, from December 20, 2017; and • 0 percent for osteoarthritis right hip, thigh impairment, under DC 5253, from December 20, 2017. Furthermore, while more detailed findings will be discussed below, the Board first provides the following range of motion findings pertaining to his right hip disability: (Normal flexion is to 125 degrees) • June 2003 VA examination, flexion was to 125 degrees, • June 2004, flexion to 112 degrees • June 2007 VA examination, flexion to 125 degrees, • June 2012 VA examination, 100 degrees, with objective evidence of painful motion at 90 degrees • December 2017, flexion was to 115 degrees • September 2019 flexion was to 30 degrees (Normal extension is to 30 degrees) • June 2003 VA examination, extension to 30 degrees • June 2004, extension to 30 degrees, with pain at 30 degrees • June 2007, extension to 30 degrees • June 2012 VA examination, extension greater than 5 degrees, with objective evidence of painful motion at 5 degrees • December 2017, extension to 30 degrees • September 2019, extension to 10 degrees (Normal adduction is to 25 degrees) • June 2003 VA examination, adduction to 25 degrees • June 2004, adduction to 15 degrees with pain at 15 degrees • June 2007, adduction to 25 degrees • June 2012 VA examination, no evidence of adduction limited such that the Veteran cannot cross legs • December 2017, adduction to 25 degrees, no evidence of adduction limited such that the Veteran cannot cross legs • September 2019, adduction to 15 degrees (Normal abduction is to 45 degrees) • June 2003 VA examination, abduction to 45 degrees • June 2004, abduction to 45 degrees, with pain at 45 degrees • June 2007, abduction to 45 degrees • June 2012 VA examination, no evidence of abduction lost beyond 10 degrees • December 2017, abduction to 45 degrees • September 2019, abduction to 20 degrees (Normal external rotation is to 60 degrees) • June 2003 VA examination, external rotation to 60 degrees • June 2004, external rotation to 60 degrees • June 2007, external rotation to 60 degrees • December 2017, external rotation to 50 degrees • September 2019, external rotation to 25 degrees (Normal internal rotation is to 40 degrees) • June 2003 VA examination, internal rotation to 40 degrees • June 2004, internal rotation to 40 degrees • June 2007, internal rotation to 40 degrees • June 2012 VA examination, no evidence of limited rotation limited to such that the Veteran cannot toe-out more than 15 degrees. • December 2017, internal rotation to 40 degrees. • September 2019, internal rotation to 20 degrees During the June 2003 VA examination, there was mild pain with extreme of internal and external rotation of the left hip, but no evidence of fatigue, weakness, lack of endurance, incoordination of the knees, or ankylosis. In June 2004, the Veteran manifested tightness in his left hip with loss of motion and pain rated as 8/10. He manifested flexion to 112 degrees with no pain, extension to 30 degrees with pain at 30 degrees, adduction to 15 degrees with pain at 15 degrees, abduction to 45 degrees with pain at 45 degrees, external rotation to 60 degrees with no pain, internal rotation to 40 degrees with no pain. Deluca factors—i.e. lack of endurance, fatigue, weakness, and pain—were noted, but there was no evidence of ankylosis. During the June 2007 VA examination, the Veteran had initial range of motion without pain, fatigue, weakness, lack of endurance or incoordination. Post-repetitive use, there was no additional limitation of motion, but pain was noted on all of the range of motion, accompanied with fatigue, weakness, lack and endurance with pain. During the June 2012 VA examination, the Veteran was diagnosed with right hip osteoarthritis. He reported flare-ups resulting in constant pain that worsens with walking more than 15 minutes, standing more than 30 minutes, or sitting more than an hour. His initial ROM of flexion was to 100 degrees, with objective evidence of painful motion at 90 degrees, extension greater than 5 degrees, with objective evidence of painful motion at 5 degrees. There was negative finding for abduction lost beyond 10 degrees, adduction limited such that the Veteran cannot cross legs, or rotation limited such that the Veteran cannot toe-out more than 15 degrees. After repetitive use testing, the Veteran was able to perform, and other than his post-test flexion (i.e. to 90 degrees), there was no additional loss of ROM thereafter. With regards to functional impairment, the followings were identified: less movement than normal and pain on movement. His muscle strength for hip flexion/abduction/extension were all normal, and there was no evidence of ankylosis or any additional conditions (malunion or nonunion of femur, flail hip joint or leg length discrepancy). He was noted to occasionally use cane and regularly use brace. In December 2017, the Veteran was diagnosed with hip osteoarthritis and iliopsoas tendinitis, and he reported worsening condition, in which he has pain and the limited motion in the right thigh/hip, and cannot cross his right hip over his left. The Veteran reported flare-ups of right hip and thigh swelling up, and identified difficulty with heavy lifting as functional impairment. His initial ROM of flexion was to 115 degrees, extension to 30 degrees, abduction to 45 degrees, adduction to 25 degrees, external rotation to 50 degrees, and internal rotation to 40 degrees. His adduction was not found to be so limited to that he cannot cross legs, and his ROM itself was not found to contribute to a functional loss. Mild to moderate sharp pain along iliopsoas muscle was noted, but was not found to cause functional loss, and there was no objective evidence of crepitus or pain with weight bearing. He was able to perform repetitive-use testing with at least three repetitions and after repetitive use over time, with no additional loss of ROM thereafter, and pain/weakness/fatigability/incoordination was not found to significantly limit functional ability with repeated use over a period of time. The exam was being conducted during a flare-up, but pain/weakness/fatigability/incoordination was not noted to significantly limit functional ability with flare-ups. There were no additional factors contributing to disability. His muscle strength was normal, and there was no evidence of reduction in muscle strength, muscle atrophy, and ankylosis. He was noted to occasionally use cane, and was found to have functional impact of difficulty with being in one position for prolonged periods of time. During the September 2019 VA examination, he reported soreness/stiffness while sitting and walking and inability to stand for more than 15 minutes. He reported flare-ups of the right hip as severe and lasting two to three days after walking a block or standing or sitting for too long. His initial ROM of right hip flexion was to 30 degrees, extension to 10 degrees, abduction to 20 degrees, adduction to 15 degrees, external rotation to 25 degrees, and internal rotation to 20 degrees, with adduction not limited to such that he cannot cross legs. His ROM itself was found to contribute to a functional loss (cannot bend joint well) and pain was noted on examination. There was evidence of pain with weight bearing, but no objective evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions, with no additional loss of ROM, and while the Veteran was not examined immediately after repetitive use over time, the examination was found to be medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. As for ROM during a flare-up, the examiner indicated that the Veteran was not examined during such and is unable to determine ROM without mere speculation after reviewing the Veteran’s history, current exam finings, and relevant evidence of record. There was no additional factor contributing to disability. His muscle strength was normal, with no evidence of reduction in muscle strength, muscle atrophy, or ankylosis. He was also not found to have malunion/nonunion of femur, flail hip joint or leg length discrepancy, or use any assistive devices. There was evidence of pain on passive ROM, but none on non-weight bearing testing. Although there are voluminous treatment records from the relevant period documenting complaints of and treatment for right hip condition, none of them appear to offer pertinent ROM measurements or other medical findings that would warrant a higher or separate compensable rating for this period under applicable diagnostic codes. 4. Entitlement to a disability rating in excess of 20 percent for osteoarthritis right hip associated with subluxation with fracture, left acetabulum and hip, under DC 5003-5255 The Veteran’s right hip osteoarthritis is currently rated as 20 percent under DC 5003-5255 effective May 24, 2004. After reviewing all pertinent records, the Board finds that the Veteran does not warrant a rating in excess of 20 percent under DC 5255. Initially, with regards to the applicability of 5250 and 5254 rendering a higher rating for the Veteran’s right hip osteoarthritis disability (under the amended version of DC 5255), as the evidence of records does not show any form of hip ankylosis or flail joint disability warranting a higher rating, the Board finds that the Veteran is not warranted a higher rating under either DC 5250 or 5254. As for the applicability of DC 5252, the Board notes it will not result in a higher evaluation, as it will only result in a 20 percent rating, which is no more favorable than what he is currently rated as under DC 5255. Moreover, with regards to the applicability of DC 5251 and DC 5253, the Board notes that the Veteran has been granted two separate non-compensable ratings under DC 5251 and DC 5253, effective December 20, 2017, for limitation of extension and impairment of thigh associated with the right hip osteoarthritis respectively pursuant to an August 2020 rating decision. This is discussed below. The Board notes that evaluating this condition under either the pre-amended or post-amended version DC 5255 results in the same outcome. The review of the evidence of record shows consistent negative findings for malunion or nonunion of femur, flail hip joint, or leg length discrepancy, to include fracture of surgical neck with false joint or fracture of shaft/anatomical neck, required for a rating in excess of 20 percent. The Veteran’s right hip disability consisted of painful motion noted on examination, use of assistive devices, difficulty with prolonged walking, standing, or sitting. While the pre-amended version of DC 5255 allows a 30 percent rating for malunion of femur with marked knee or hip disability, the Board reiterates that there is no indication of any malunion of femur throughout the appeal period (see also March 2018 VA knee examinations showing normal gait). On physical examinations, there was minimal limitation of motion, even accounting for painful motion. Thus, the Board finds that the Veteran does not warrant a rating in excess of 20 percent for right hip osteoarthritis disability under either version of DC 5255. The Board has also considered other potentially applicable diagnostic codes for the period on appeal and finds it not applicable—i.e. DC 5252. In this case, the September 2019 VA examination shows initial ROM of right hip flexion limited to 30 degrees, with evidence of pain noted on examination, report of severe flare-ups, and ROM itself contributing to a functional loss. However, the Board notes that the Veteran’s right hip disability rated as 20 percent under DC 5003-5255 has already taken into consideration any limitation of motion as well as the functional limitations caused by the limited motion, pain, and weakness, that is of moderate severity. See 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Codes 5003-5255. In fact, when he was initially granted a 20 percent under DC 5003-5255, his functional loss due to pain associated with limitation of motion as well as painful motion were taken into consideration. Thus, even acknowledging the Veteran’s flexion limited to 30 degrees, along with the evidence of painful motion/limitation of flexion/functional limitation noted in the September 2019 VA examination, to the extent that there are duplicative and overlapping symptomatology that have already been contemplated under the 20 percent rating under DC 5003-5255, the Board finds granting a separate compensable rating (i.e. 20 percent rating) under DC 5252 for the limitation of flexion not applicable. See Esteban, 6 Vet. App. 259, 261- 62 (1994). The Board considered the Veteran’s lay assertion that he has a limited range of motion and that his right hip affects his ability to sit/stand/walk without being unable to do so. The Board finds these statements to be credible and competent to the extent that the relay the professing witness’s own experiences and personal observations. Layno v. Brown, 6 Vet. App. 465 (1994). However, since the degree of the Veteran’s impairment depends on the clinically significant symptoms and objectively measurable criteria under the rating schedule, the Board affords greater evidentiary weight to the contemporaneous medical records and objective examinations by medical professionals over the subjective lay statements offered by the Veteran. As the preponderance of the evidence is against the claim for the right hip osteoarthritis disability, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 5. Entitlement to a compensable disability rating for osteoarthritis right hip, limitation of extension associated with subluxation with fracture, left acetabulum and hip, under DC 5251, from December 20, 2017 6. Entitlement to a compensable disability rating for osteoarthritis right hip, impairment of thigh associated with subluxation with fracture, left acetabulum and hip, under DC 5253, from December 20, 2017 After reviewing all pertinent records, the Board finds that the Veteran is not warranted a compensable rating under DC 5251 for his right hip osteoarthritis limitation of flexion. At worst, the Veteran’s right hip flexion was limited to 10 degrees, even though there was pain with weight bearing and objective evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions, with no additional loss of ROM. Even though he was not examined immediately after repetitive use over time/during a flare-up and while the Board acknowledges his complaints of severe flare-ups lasting for 2-3 days, he was also consistently noted to have normal muscle strength, with no evidence of reduction in muscle strength, muscle atrophy, or ankylosis. Thus, the Board finds that he is not warranted a compensable rating under DC 5251. As for a higher disability rating under DC 5253 for the Veteran’s impairment of right thigh, the Board finds that he is not warranted a higher rating as his adduction was consistently found to not be limited to such extent where he cannot cross legs. Even though the Board acknowledges the December 2017 VA examination’s medical history section documenting “[the Veteran] cannot cross his right hip over his left,” his adduction was still not found to be so limited to the extent that he cannot cross leg on examination, and the subsequently conducted September 2019 VA examination again confirmed that his adduction to be not so limited to the extent that he cannot cross leg. Moreover, throughout these examinations, he was consistently found to have “normal” muscle strength, with no evidence of muscle atrophy, reduction in muscle strength, or ankylosis, and his abduction was at worst, to 20 degrees, even when his ROM itself was found to contribute to a functional loss and pain was noted on examination. In light of above, the Board finds that the Veteran is not warranted a compensable rating under DC 5253 for his right hip osteoarthritis, impairment of thigh. As the preponderance of the evidence is against the claims for the right hip osteoarthritis disability, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lee 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.