Citation Nr: 21022781 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 14-40 267A DATE: April 19, 2021 ORDER Entitlement to a rating in excess of 10 percent for left hip bursitis, with limitation of extension, is denied. REMANDED Entitlement to a rating in excess of 10 percent prior to December 5, 2020, and in excess of 20 percent thereafter, for a cervical spine strain, is remanded. Entitlement to a rating in excess of 10 percent prior to August 22, 2016, and in excess of 40 percent thereafter, for sacroiliac (SI) joint and lumbar facet dysfunction, is remanded. FINDINGS OF FACT 1. Over the entire appeal period, the Veteran’s left hip disability is rated as 10 percent disabling, which is the maximum schedular rating permitted. 2. Over the entire appeal period, there is no evidence of left hip ankylosis, hip flail, or impairment of the femur. CONCLUSION OF LAW Over the entire appeal period, the criteria for a rating in excess of 10 percent for left hip bursitis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5019 and 5251. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1980 to August 2001. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned at a hearing in August 2018. The Board remanded this matter in August 2020 for additional development. The matter is now returned to the Board for further appellate review. In the January 2021 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for left hip bursitis manifested by limitation of flexion, rated under Diagnostic Code 5252 and left hip bursitis manifested by impairment of the left thigh, rated under diagnostic code 5253. The AOJ assigned noncompensable ratings effective August 22, 2016 for both. The Veteran has not submitted a notice of disagreement for those determinations. Therefore, those issues are not on appeal to the Board. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). Entitlement to a rating in excess of 10 percent for left hip bursitis The Veteran contends her left hip bursitis, currently rated under diagnostic code 5251, warrants a higher rating. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. 38 U.S.C. § 5107(b). The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. Wood v. Derwinski, 1 Vet. App. 190 (1991); Washington v. Nicholson, 19 Vet. App. 362 (2005). Where entitlement to compensation has already been established and increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are appropriate for an increased rating claim if the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. However, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Under Diagnostic Code 5251, a 10 percent disability rating is warranted where extension of the thigh is limited to 5 degrees. This is the maximum, and only, disability rating allowable under this diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Code 5251. Under Diagnostic Code 5252, limitation of thigh flexion to 20 and 10 degrees warrants 30 and 40 percent ratings, respectively. For a 20 percent rating, there must be limitation of flexion to 30 degrees. A 10 percent rating is assigned for flexion of the thigh limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5252. 38 C.F.R. § 4.71a, Diagnostic Code 5252. Under Diagnostic Code 5253, impairment of the thigh, the criterion for a 20 percent rating is abduction limited to 10 degrees. The criteria for a 10 percent rating are limitation of adduction with the inability to cross the legs; or external rotation limited and cannot toe-out more than 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5253. In addition, Diagnostic Codes 5250 (ankylosis), 5254 (flail joint), and 5255 (impairment of the femur) also pertain to disabilities of the hip and thigh. 38 C.F.R. § 4.71a, Diagnostic Code 5250, 5254, 5255.\ The Veteran is rated 10 percent under Diagnostic Code 5251 for her left hip bursitis, limitation of extension. The Board acknowledges the August 2016 VA examination does not comply with the holding in Correia; however, the Board finds this is harmless error and does not result in any prejudice to the Veteran because she is currently rated at the highest schedular rating available under Diagnostic Code 5251; she is also service connected for left hip disabilities under Diagnostic Codes 5252 and 5253, which are not before the Board; and there is no evidence of right hip ankylosis, flail joint, or impairment of the femur. Thus, to the extent that there are Correia deficiencies in the August 2016 VA examination, a remand by the Board would be a waste of judicial resources and would unnecessarily delay adjudication of the Veteran’s claim because a finding of more limitation of motion in this case would not result in a higher rating under 5251 or the other applicable diagnostic codes, unless there was also ankylosis, flail joint or femur impairment. To this limited extent only, the Board finds the August 2016 VA examination is adequate to adjudicate the Veteran’s increased rating claim for left hip bursitis, rated under Diagnostic Code 5251. Furthermore, the Board notes the Veteran has been rated under two different Diagnostic Codes for her left hip bursitis during the appeal period. At the beginning of the appeal period, she was rated under Diagnostic Code 5019. In January 2021, the AOJ changed her rating from Diagnostic Code 5019 to 5251. See January 2021 Rating Decision - Codesheet. The Veteran maintained a 10 percent rating while rated under both Diagnostic Codes. Despite this change, the Veteran received the highest schedular rating allowed during the entire appeal period. Specifically, Diagnostic Code 5019 provides bursitis is to be rated on limitation of motion of the affected part as degenerative arthritis. 38 C.F.R. § 4.71a. 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. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2018). The AOJ assigned the Veteran a 10 percent rating based on painful motion. As noted above, Diagnostic Code 5251 provides for a maximum 10 percent rating for limitation of extension of the thigh limited to 5 degrees. 38 C.F.R. § 4.71a. Accordingly, a 10 percent rating under Diagnostic Codes 5019 and 5251 is the highest schedular rating available to the Veteran during the entire appeal period. As the Veteran is already in receipt of the highest rating allowed under Diagnostic Code 5251 for her left hip bursitis, an increased rating is not warranted under this Diagnostic Code. As noted above, the Veteran is also service connected for left hip disabilities under Diagnostic Codes 5252 and 5253, which are not before the Board and will not be considered as part of this appeal. Lastly, the Board finds that Diagnostic Code 5250 for rating hip ankylosis; Diagnostic Code 5254 for rating hip flail joint; and Diagnostic Code 5255 for rating femur impairment are not applicable, as the medical evidence does not show that the Veteran has had any of these conditions. See 38 C.F.R. § 4.71a, Diagnostic Code 5250, 5254, 5255. Accordingly, the Board finds the Veteran has received the highest possible rating she is entitled to for her left hip bursitis based on limitation of extension throughout the entire appeal period. Thus, entitlement to a disability rating in excess of 10 percent for limitation of extension of the left hip due to bursitis, under Diagnostic Code 5251, is denied. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent prior to December 5, 2020, and in excess of 20 percent thereafter, for a cervical spine strain is remanded. 2. Entitlement to a rating in excess of 10 percent prior to August 22, 2016, and in excess of 40 percent thereafter, for SI joint and lumbar facet dysfunction is remanded. The Veteran asserts her cervical spine and lumbar spine disabilities are more severe than reflected in their assigned ratings. Unfortunately, a remand is necessary so the Board may make a fully informed decision on the Veteran’s claims. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 requires VA examinations to include range of motion joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. The spine does not have an opposite joint. VA provided the Veteran an examination in December 2020 to determine the nature and severity of her service-connected cervical spine strain. The examination does not comply with the requirements of Correia because the examiner noted the veteran experienced pain on both passive and non-weight-bearing testing but did not provide corresponding range of motion measurements. VA provided the Veteran an examination in August 2016 to determine the nature and severity of her service-connected lumbar spine disability. The examination does not comply with the requirements of Correia because it does not contain range of motion testing for pain on passive motion nor pain on non-weight-bearing. Accordingly, a remand is necessary to address these deficiencies. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected cervical spine strain disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected SI joint and lumbar facet dysfunction disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Zachery S.C. Luce, Associate 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.