Citation Nr: 21022960 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 18-13 116 DATE: April 19, 2021 ORDER Entitlement to a rating in excess of 10 percent for right hip strain with bursitis and impairment of the thigh is denied. Entitlement to a rating in excess of 10 percent for left hip strain with bursitis and impairment of the thigh is denied. Entitlement to a compensable rating for right hip strain with bursitis and limitation of flexion is denied. Entitlement to a compensable rating for left hip strain with bursitis and limitation of flexion is denied. Entitlement to a compensable rating for right hip strain with bursitis and limitation of extension is denied. Entitlement to a compensable rating for left hip strain with bursitis and limitation of extension is denied. FINDINGS OF FACT 1. The Veteran’s right hip strain with bursitis and impairment of the thigh is manifested by painful motion and adduction limited such that the Veteran cannot cross her legs. 2. The Veteran’s left hip strain with bursitis and impairment of the thigh is manifested by painful motion and adduction limited such that the Veteran cannot cross her legs. 3. The Veteran’s right hip flexion has been shown, at worst, to be limited to 60 degrees. 4. The Veteran’s left hip flexion has been shown, at worst, to be limited to 50 degrees. 5. The Veteran’s right hip extension has been shown, at worst, to be limited to 10 degrees. 6. The Veteran’s left hip extension has shown, at worst, to be limited to 10 degrees. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for right hip strain with bursitis and impairment of the thigh have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5253. 2. The criteria for a rating in excess of 10 percent for left hip strain with bursitis and impairment of the thigh have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5253. 3. The criteria for a compensable rating for right hip strain with bursitis and limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5252. 4. The criteria for a compensable rating for left hip strain with bursitis and limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5252. 5. The criteria for a compensable rating for right hip strain with bursitis and limitation of extension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.31, 4.71a, Diagnostic Code 5251. 6. The criteria for a compensable rating for left hip strain with bursitis and limitation of extension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.31, 4.71a, Diagnostic Code 5251. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1999 to December 1999. These matters were previously before the Board in November 2018. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 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. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. A veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. Id. at 126. The Veteran filed her initial claim for service connection in February 2015. The claims were denied in a June 2015 rating decision, and the Veteran filed a timely Notice of Disagreement in November 2015. Following a VA examination in December 2015, a January 2016 rating decision granted service connection for all the issues on appeal and assigned ratings effective February 5, 2015. The Veteran filed a statement in June 2016 in which she requested “reconsideration” of the January 2016 rating decision. The RO accepted the June 2016 statement as an increased rating claim and issued a rating decision in September 2016 continuing the ratings that had been assigned in the January 2016 rating decision. This appeal followed. The provisions of 38 C.F.R. § 4.71a, Diagnostic Codes 5250 to 5255, provide the criteria for rating hip and thigh disabilities. Normal range of motion for the hip is to 125 degrees of flexion, to zero degrees of extension, and to 45 degrees of abduction. 38 C.F.R. § 4.71, Plate II. The Veteran’s hip disabilities are rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5251, 5252, and 5253. Under Diagnostic Code 5251, a maximum 10 percent rating is warranted for extension of the thigh limited to 5 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5251. Under Diagnostic Code 5252, a 10 percent rating is warranted for flexion of the thigh limited to 45 degrees. A 20 percent rating is warranted for flexion of the thigh limited to 30 degrees. A 30 percent rating is warranted for flexion of the thigh limited to 20 degrees. And a 40 percent rating is warranted for flexion of the thigh limited to 10 degrees. Under Diagnostic Code 5253, a 10 percent rating is warranted for limitation of rotation of affected leg, cannot toe out more than 15 degrees. A 10 percent rating is also warranted for limitation of adduction, cannot cross legs. A maximum 20 percent rating is warranted for limitation of abduction, motion lost beyond 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5253. Other pertinent Diagnostic Codes relating to the hip include Diagnostic Code 5250, where there is ankylosis of the hip; Diagnostic Code 5254, where there is involvement of the hip flail joint; and Diagnostic Code 5255, which requires impairment of the femur. No VA examination, nor the Veteran, has identified these conditions; accordingly, the Board will not further address the applicability of these Codes. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Finally, assigning multiple ratings based on the same symptoms or manifestations of a disability constitutes impermissible pyramiding. 38 C.F.R. § 4.14. However, the Board finds that assigning separate ratings based on limitation of flexion, extension, adduction, and rotation of the hip under Diagnostic Codes 5251, 5252, and 5253 would not amount to pyramiding under 38 C.F.R. § 4.14. Separate ratings under different diagnostic codes may be assigned where “none of the symptomatology for any of the[the] conditions is duplicative of or overlapping with the symptomatology of the other … conditions.” 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Here, the key consideration has been met, in that limitation of extension, flexion, adduction, and rotation concern excursions of movements in different planes, and these limitations therefore constitute different bases for rating the hips. See 38 C.F.R. § 4.45. If these limitations are demonstrated, they must be rated separately to adequately compensate for functional loss associated with the service-connected hip disabilities. See 38 C.F.R. § 4.40; see also VAOPGCPREC 9-2004 (separate ratings may be assigned for disability of the same joint where veteran has both limitation of flexion and limitation of extension of the same leg). Pertinent evidence of record includes the Veteran’s lay statements, VA treatment records, and December 2015, January 2018, and September 2019 VA examination reports. Within one year prior to her June 2016 increased rating claim, the Veteran underwent a VA examination in December 2015, at which time she was diagnosed with left and right hip strain with bursitis. The Veteran reported flare-ups, stating that flare-ups could be described as radiating pain and limited range of motion. Upon examination, the Veteran’s range of motion was as follows: flexion to 110 degrees in both hips; extension to 20 degrees in both hips; abduction to 35 degrees in both hips; adduction to 15 degrees in the right hip and 20 degrees in the left hip; external rotation to 50 degrees in both hips; and internal rotation to 30 degrees in both hips. The examiner noted that adduction was not limited such that the Veteran could not cross her legs. The examiner also noted that pain was noted on examination but did not result in functional loss. The Veteran was not being examined immediately after repetitive use over time; however, the examiner opined that in such instance, range of motion would be limited as follows: flexion to 100 degrees in both hips; extension to 15 degrees in both hips; abduction to 30 degrees in both hips; and adduction to 10 degrees in the right hip and 15 degrees in the left hip. During a flare-up, the examiner opined that flexion would be further limited to 90 degrees in both hips; that extension would be limited to 10 degrees in both hips; that abduction would be limited to 20 degrees in the right hip and 25 degrees in the left hip; and that adduction would be limited to 5 degrees in the right hip and 10 degrees in the left hip. Additional factors contributing to the Veteran’s disability included less movement than normal. Muscle strength testing revealed full strength. There was no evidence of ankylosis, impairment of the femur, or flail hip joint. In her December 2016 NOD, the Veteran reported increased severe pain that affected her daily life. She told VA providers in March and April 2017 that she had worsening hip pain that included a burning sensation in her hip joints. The Veteran underwent another VA examination in January 2018. She described flare-ups that she described as pain preventing her from her daily activities. She reported functional loss insofar as she said she was bedridden three days a week due to her hip pain. Initial range of motion testing showed right hip flexion to 60 degrees and left hip flexion to 50 degrees; right and left hip extension both to 10 degrees; right hip abduction to 20 degrees and left hip abduction to 25 degrees; and right hip adduction to 5 degrees and left hip adduction to 0 degrees. The Veteran was not being examined after repetitive use over time or during a flare-up, and the examiner indicated an inability to approximate any additional loss of range of motion without resorting to speculation. There was some reduced muscle strength, but no evidence of muscle atrophy, ankylosis, malunion of nonunion of the femur, flail hip joint, or leg length discrepancy. A January 2018 private treatment note reflects the Veteran’s complaints of tenderness in her bilateral hips. The Veteran underwent another VA examination in September 2019. She reported flare-ups manifesting in shooting pain down her thighs causing her to fall. She reported functional loss including less ability to walk, stand, squat, or sit. Initial range of motion testing showed right hip flexion to 60 degrees and left hip flexion to 80 degrees; right and left hip extension to 30 degrees; right hip abduction to 40 degrees and left hip abduction to 45 degrees; and right hip adduction to 20 degrees and left hip adduction to 20 degrees. Adduction was not limited such that the Veteran could not cross her legs. The Veteran declined repetitive use testing due to severe pain. The Veteran was not being examined after repeated use or during a flare-up, but the examiner opined that in either of those scenarios, there would not be a further loss of range of motion, rather there would be increased pain and lack of endurance. During a flare-up, the examiner opined that there would be increased shooting pain that could result in falling. Passive range of motion was conducted, and measurements were greater than on active testing. The Board reiterates that the Veteran is currently in receipt of 10 percent ratings each for right and left hip bursitis with thigh impairment under Diagnostic Code 5253, and noncompensable ratings for right and left hip strain with bursitis and limitation of flexion (Diagnostic Code 5252) and extension (Diagnostic Code 5251). Turning first to whether higher ratings are warranted under Diagnostic Code 5253, to attain the maximum, 20 percent rating, the evidence would need to show limitation of abduction, motion lost beyond 10 degrees. Throughout the appeal period, the lowest degree of abduction has been to 20 degrees in the right hip and 25 degrees in the left hip, to include after repetitive use and/or during a flare-up. Thus, at no point did the Veteran meet the criteria for a 20 percent rating for either hip under Diagnostic Code 5253. Turning to whether higher ratings are warranted under Diagnostic Code 5252, which contemplates limitation of flexion, the Board notes that no range of motion testing has shown flexion limited to 45 degrees, which is the requirement for the minimum compensable rating under that Code. Indeed, flexion has been shown, at worst, to be to 60 degrees in the right hip and to 50 degrees in the left hip. As a result, the Veteran does not meet the criteria for a compensable rating under Diagnostic Code 5252. Similarly, compensable ratings are not warranted under Diagnostic Code 5251, which provides for a maximum, 10 percent rating where there is extension limited to 5 degrees. However, the probative evidence of record shows that, at worst, extension has been limited to 10 degrees, even during a flare-up, as noted at the December 2015 examination. Accordingly, compensable ratings are not available for either the right or left hip under Diagnostic Code 5251. The Board adds that the assigning compensable ratings based on painful motion pursuant to Diagnostic Codes 5251 or 5252 would amount to pyramiding, insofar as the 10 percent ratings currently in effect under Diagnostic Code 5253 are based on the Veteran’s inability to cross her legs due to painful motion. See 38 C.F.R. § 4.59. In assessing the severity of the Veteran’s hip disability under consideration for the entire period on appeal, the Board has considered the Veteran’s assertions regarding her symptoms, which she is certainly competent to provide. See Layno v. Brown, 6 Vet. App. 465 (1994). However, the criteria needed to support higher ratings require medical findings that are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134 (1994). As such, the lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support the assignment of higher ratings pursuant to the applicable criteria. Therefore, based on the foregoing, the Board must conclude that the preponderance of the evidence is against the Veteran’s claims for increased ratings higher than those that have already been assigned by the Agency of Original Jurisdiction. As the preponderance of the evidence is against the claims, there is no reasonable doubt to be resolved, and the claims are denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. G. LeMoine Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Polly Johnson, 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.