Citation Nr: 21023472 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 13-30 554 DATE: April 20, 2021 ORDER Entitlement to an evaluation in excess of 10 percent disabling for service-connected osteoarthritis of the left hip associated with lumbar fusion L1, degenerative disc disease (DDD) and degenerative joint disease (DJD) is denied. Entitlement to a compensable evaluation for service-connected osteoarthritis of the left hip (limitation of extension) associated with lumbar fusion L1, DDD and DJD is denied. Entitlement to a compensable evaluation for service-connected osteoarthritis of the left hip (limitation of flexion) associated with lumbar fusion L1, DDD and DJD is denied. Entitlement to a total disability evaluation based upon individual unemployability is denied. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran’s left hip impairment has not been manifested by limitation of abduction limited to 10 degrees. 2. Throughout the appeal period, the Veteran’s left hip impairment has not been manifested by limitation of extension limited to 5 degrees. 3. Throughout the appeal period, the Veteran’s left hip impairment has not been manifested by limitation of flexion to 45 degrees. 4. Throughout the period on appeal, the Veteran’s service-connected disabilities have not rendered him incapable of securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to an evaluation in excess of 10 percent disabling for service-connected osteoarthritis of the left hip associated with lumbar fusion L1, degenerative disc disease (DDD) and degenerative joint disease (DJD) have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.40, 4.45, 4.59, 4.7, 4.71a, Diagnostic Code 5253 (2019). 2. The criteria for establishing entitlement to a compensable evaluation for service-connected osteoarthritis of the left hip (limitation of extension) associated with lumbar fusion L1, DDD and DJD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.40, 4.45, 4.59, 4.7, 4.71a, Diagnostic Code 5251 (2019). 3. The criteria for establishing entitlement to a compensable evaluation for service-connected osteoarthritis of the left hip (limitation of flexion) associated with lumbar fusion L1, DDD and DJD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.40, 4.45, 4.59, 4.7, 4.71a, Diagnostic Code 5252 (2019). 4. The criteria for establishing entitlement to a total disability evaluation based upon individual unemployability have not been met. 38 U.S.C. §§ 1114, 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.2, 4.3, 4.16(a), 4.19 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Army from August 1991 to November 1993. Pursuant to a July 2020 Board decision, this matter was remanded for additional development to include re-scheduling the Veteran’s cancelled VA examination. As the requested development is now complete, this matter has been returned to the Board for appellate consideration. Duty to Assist and to Notify VA is required to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2019). Copies of compliant VCAA notices were located in the claims file. VA’s duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of a disability. Peters v. Brown, 6 Vet. App. 540, 542 (1994). In this case, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. 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) (applying Scott to duty to assist argument). Thus, upon careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Increased Ratings, Generally Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2019). The Board determines the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.10 (2019). Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Id. The Court has held that staged ratings are appropriate for initial rating and increased rating claims when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings will be considered below and discussed as warranted. When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness which causes additional disability beyond that reflected on range of motion measurements must be considered. 38 C.F.R. § 4.40 (2019); DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Consideration must also be given to weakened movement, excess fatigability, and incoordination. 38 C.F.R. § 4.45 (2019). Additionally, evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. 38 C.F.R. § 4.14 (2019). 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 the symptomatology of the other condition. Id.; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). 38 C.F.R. § 4.59 recognizes that painful motion is an important factor of disability. Joints that are painful, unstable, or misaligned, due to healed injury, are entitled to at least the minimum compensable rating for the joint. Id. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Id; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that § 4.59 applies to all forms of painful motion of joints, and not just to arthritis). Pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011) (holding that pain alone does not constitute function loss and is just one fact to be considered when evaluating functional impairment). When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to an evaluation in excess of 10 percent disabling for service-connected osteoarthritis of the left hip associated with lumbar fusion L1, degenerative disc disease (DDD) and degenerative joint disease (DJD) The Veteran contends that he is entitled to higher evaluations for his service-connected left hip disabilities, specifically limitation of extension, limitation of flexion, and other impairments due to osteoarthritis. As discussed in more detail below, the preponderance of the evidence is against his claim. The Veteran’s osteoarthritis of the left hip is currently evaluated under Diagnostic Code 5253. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, the applicable Diagnostic Codes were not changed. Review of the record indicates that the Veteran’s osteoarthritis of the left hip associated with lumbar fusion L1, DDD and DJD has been evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5003-5253. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. Diagnostic Code 5003 directs that a rating shall be awarded on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. If noncompensable limitation of motion is demonstrated, a 10 percent rating is assigned for each major joint or group of minor joints affected. 38 C.F.R. § 4.71a, Diagnostic Code 5003. For the purpose of rating disability from arthritis, the hip is considered a major joint. 38 C.F.R. § 4.45. Under Diagnosis Code 5251 which governs the extension of the thigh, a 10 percent disability rating is warranted for extension limited to 5 degrees. 38 C.F.R. § 4.71a. 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. Id. Under Diagnostic Code 5253, a 10 percent disability rating is warranted if the Veteran’s thigh rotation is limited, cannot toe-out, more than 15 degrees of the affected leg. A 10 percent disability rating is also warranted if the Veteran’s thigh adduction is limited so that the Veteran cannot cross their legs. A maximum disability rating of 20 percent warranted if the Veteran’s thigh abduction is limited to 10 degrees or less. Id. During the course of the appeal, effective February 7, 2021, 38 C.F.R. § 4.71a Schedule of Ratings-Musculoskeletal System including Diagnostic Code 5251 to 5253 were not amended. Effective February 7, 2021 the Board has considered the updated Diagnostic Codes but notes that the applicable Diagnostic Codes in this case were not updated. On examination in February 2016, a current diagnosis of mild degenerative arthritis of the bilateral hip was indicated. Other co-morbidities included chronic low back pain with history of spinal fusion at T12-L1, disc profusion of L5-S1 with mild effacement, and disc protrusion. During the clinical interview, the Veteran complained of current symptoms including left hip pain, described as a dull ache that comes and goes. No aggravating factors were identified. The Veteran denied any experience with flare-ups or functional loss during flare-ups. Range of motion of the left hip revealed flexion limited to 100 degrees, with normal extension, abduction, and adduction. Adduction was not limited such that the Veteran was unable to cross his legs. External rotation was limited to 45 degrees and internal rotation was limited to 40 degrees. Abnormal range of motion does not, itself, contribute to or cause functional loss. Pain was observed on examination with flexion but did not cause functional loss. There was no evidence of pain with weight-bearing, localized tenderness or pain to palpation, or crepitus. No additional loss of function or range of motion was observed with repetitive use testing. Neither pain, weakness, fatigability or incoordination significantly limited the Veteran’s functional ability over time. No additional factors contributed to the Veteran’s left hip disability. Muscle strength testing revealed normal findings. There was no evidence of muscle atrophy or ankylosis. There was no evidence of malunion or nonunion of femur, flail hip joint or leg length discrepancy. No other pertinent physical factors were identified. The Veteran denied use of assistive devices. Diagnostic testing revealed degenerative arthritis in the left hip. No functional impact was documented. The Veteran’s gait was normal. Pursuant to a July 2020 Board remand decision, the Veteran’s claim was remanded to reschedule a previously cancelled VA examination. On examination in October 2020, current diagnoses include left hip osteoarthritis, limitation of extension, and limitation of flexion. During the clinical interview, the Veteran reported worsening symptoms, to include constant pain, described as sharp with prolonged walking, standing and sitting. Additional symptoms were listed as pain with movement, stiffness, weakness, popping, locking, and limited range of motion. The Veteran endorsed use of Tylenol to treat pain. Flare-ups were described as worsening left hip pain with movement, prolonged sitting, standing, or walking. No functional loss was described as due to flare-ups. Range of motion testing of the left hip revealed flexion limited to 100 degrees, extension limited to 20 degrees, abduction limited to 25 degrees, adduction limited to 15 degrees, external rotation limited to 45 degrees, internal rotation limited to 25 degrees. Adduction was limited such that the Veteran was unable to cross his legs. Range of motion did not contribute to functional loss. Pain was observed on examination with all ranges of motion and it caused functional loss. No additional functional loss was observed with repetitive use testing. Pain, weakness and fatigue cause functional loss over time. In terms of range of motion, an additional loss of 5 degrees of motion was noted with all ranges of motion. Additional factors contributing to the Veteran’s disability, included disturbance of locomotion, interference with sitting, interference with standing, weakness and pain with prolonged sitting, standing, and walking. Muscle strength testing was slightly reduced. There was no muscle atrophy or ankylosis. No malunion or nonunion of femur, flail hip joint or leg length discrepancy was observed. Other pertinent physical findings include scar located at the left hip posterior, measuring at 10 centimeters (cm) in length and 0.5 cm in width. The Veteran denied use of assistive devices. No specific diagnostic imaging was noted. A functional impact was described as difficulty with pushing, pulling, bending, squatting, sitting, standing and walking for prolonged periods, to include within an occupational setting. Considering the Correia factors, objective evidence of pain was observed with non-weight bearing. Passive range of motion testing mirrored the findings for active motion. While the examiner acknowledged evidence of worsening symptoms, no change in diagnosis was rendered and no additional diagnoses were provided. In making all determinations, the Board has fully considered all medical evidence and the lay assertions of record. It also acknowledges the Veteran’s competence to report on observable symptoms and notes that such statements are generally deemed credible to the extent that they articulate the Veteran’s belief that he is entitled to a higher rating. In this case, however, the Veteran’s lay assertions are outweighed by competent and credible medical evidence which evaluated the true extent of impairment associated with his left hip disability to include his contentions regarding symptom worsening. In this regard, the Board notes that the VA examiners possess the medical expertise and training necessary to administer diagnostic testing required to determine the type and degree of the impairment associated with the Veteran’s disability. For these reasons, greater evidentiary weight is placed on the examination findings. In this case, the Board has fully considered the Veteran’s lay assertions regarding worsening pain with limited movement of the left hip throughout the appeal period. However, the reported symptomatology has consistently approximated the rating criteria for the assigned evaluation of 10 percent disabling. 38 C.F.R. §§ 4.40, 4.59, 4.71a, Diagnostic Code 5253. It is VA policy to recognize actually painful motion as warranting at least the minimum compensable rating. 38 C.F.R. § 4.59. This provision is applicable to any orthopedic disability. See Burton v. Shinseki, 25 Vet. App. 1 (2010); see also 38 C.F.R. § 4.59. The Board observes that the Veteran has been granted a 10 percent evaluation for osteoarthritis of the left hip. To establish entitlement to a higher evaluation of 20 percent disabling under Diagnostic Code 5253, the medical evidence must reveal thigh abduction limited to or motion loss beyond 10 degrees. In this case, the medical evidence has established no worse than 25 degrees. Accordingly, the schedular criteria for an increased evaluation has not been shown. In reaching the above referenced conclusion, the Board is sympathetic to the Veteran’s complaints of worsening symptoms. Although evidence of an increase in severity was acknowledged on VA examination in October 2020, the documented increase does not support a higher evaluation. Accordingly, as the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt doctrine is inapplicable. See 38 U.S.C. § 5107 (b) (2019). Thus, the Veteran’s increased rating claim must be denied. 2. Entitlement to a compensable evaluation for service-connected osteoarthritis of the left hip (limitation of extension) associated with lumbar fusion L1, DDD and DJD The Veteran contends that he is entitled to a higher evaluation for his service-connected left hip disability, to include limitation of extension. As discussed in more detail below, the preponderance of the evidence is against his claim. As a preliminary matter, the Board incorporates by reference, the arguments noted in Section 1. As noted above, the Veteran does not meet the criteria for a compensable evaluation or an evaluation of 10 percent disabling. Under Diagnostic Code 5251, a 10 percent evaluation is assigned for extension limited to 5 degrees. In multiple VA examinations, the Veteran’s extension has been limited to no worse than 20 degrees. Even considering the additional loss of 5 degrees of extension with repetitive use testing, the required showing has not been established. Therefore, as the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt doctrine is not applicable. The claim of entitlement to a compensable evaluation for service-connected osteoarthritis of the left hip with limitation of extension, must be denied. 3. Entitlement to a compensable evaluation for service-connected osteoarthritis of the left hip (limitation of flexion) associated with lumbar fusion L1, DDD and DJD The Veteran contends that he is entitled to a higher evaluation for his service-connected left hip disability, to include limitation of flexion. As discussed in more detail below, the preponderance of the evidence is against his claim. As a preliminary matter, the Board incorporates by reference, the arguments noted in Section 1. As noted above, the Veteran does not meet the criteria for a compensable evaluation or an evaluation of 10 percent disabling. Under Diagnostic Code 5252, a 10 percent evaluation is assigned for flexion limited to 45 degrees. In multiple VA examinations, the Veteran’s flexion was limited to no worse than 100 degrees. Even considering the additional loss of 5 degrees of flexion with repetitive use testing, the required showing has not been established. Therefore, as the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt doctrine is not applicable. The claim of entitlement to a compensable evaluation for service-connected osteoarthritis of the left hip with limitation of flexion, must be denied. 4. Entitlement to a total disability evaluation based upon individual unemployability The Veteran asserts that he is unable to work due to his service-connected connected disabilities. After a thorough review of the evidence, the Board concludes that an award of a TDIU is not warranted. Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2019). In reaching such a determination, the central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” See Hatlestead v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran’s level of education, special training and previous work experience in arriving at a conclusion, but not to age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2019). Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Review of the record indicates that the Veteran had been granted service connection for the following conditions; lumbar fusion L1, DDD and DJD evaluated as 20 percent disabling from November 25, 1993; 40 percent disabling from August 7, 2014; 20 percent disabling from June 1, 2017; and 40 percent disabling from March 2, 2020; an acquired psychological condition to include depression evaluated as 30 percent disabling from July 25, 2014; left lower extremity radiculopathy sciatic nerve evaluated as 10 percent disabling from July 17, 2013 and 20 percent disabling from December 9, 2016; right lower extremity radiculopathy, sciatic nerve evaluated as 10 percent disabling from March 2, 2020; osteoarthritis of the left hip associated with lumbar fusion L1, DDD and DJD evaluated as 10 percent disabling from July 25, 2014; osteoarthritis of the left hip with limitation of extension associated with lumbar fusion L1, DDD and DJD evaluated as non-compensable from July 25, 2014; osteoarthritis of the left hip with limitation of flexion associated with lumbar fusion L1, DDD and DJD evaluated as non-compensable from July 25, 2014; scar, lumbar spine associated with lumbar fusion L1, DDD and DJD evaluated as non-compensable from May 23, 2012 and non-compensable from August 13, 2018; left hip/iliac bone scar, and status-post (s/p) bone harvesting for spinal fusion associated lumbar fusion L1, DDD and DJD evaluated as non-compensable from July 25, 2014 and non-compensable from August 13, 2018. The combined schedular evaluation for the Veteran’s service-connected disabilities was 60 percent disabling from July 25, 2014, 70 percent disabling from August 7, 2014, 60 percent disabling from June 1, 2017, 70 percent disabling from March 2, 2020. Considering the evaluations listed above, the Board notes that at least one of the Veteran’s service-connected disabilities was evaluated as 40 percent disabling from August 7, 2014 to June 1, 2017, and 40 percent disabling from March 2, 2020, and from August 7, 2014 forward the Veteran was in receipt of a 70 percent total disability rating. However, the evidence of record is silent for any evidence that the Veteran has been rendered unable to secure and maintain all forms of substantially gainful employment for any point during the appeal period. Rather treatment records consistently note, and the Veteran has reported that he continued to work as a truck driver during the appeal period. In November 2020, VA forwarded correspondence to the Veteran requesting completion of VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. To date, the requested documentation has not been received. In February 2014, the Veteran filed a new claim for disability benefits with the Social Security Administration (SSA) records. Therein, he reported current conditions including discogenic and degenerative disorders of the back and somatoform disorders. According to the Veteran, he last worked as a truck driver in October 2012. Following a review of the medical evidence, an unfavorable determination was rendered in October 2015. The opinion noted that the Veteran reported numerous medical conditions and physical limitations. However, the medical evidence revealed no more than mild limitations with a minimal impact on his activities of daily living, to include employment related endeavors. Review of the record shows that the Veteran has been afforded multiple VA examinations. During a VA examination in October 2019, he listed his current employment as truck driver since March 2019. A mental disorders examination, also dated October 2019, listed a current diagnosis of an unspecified depressive disorder. Symptoms associated therewith were deemed likely to cause causing occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. During VA examinations for the Veteran’s lumbar spine and lower extremity conditions, his functional impairments were described as chronic pain that impairs his ability to sit, stand or ambulate for prolonged periods, and limited range of motion that interferes with his ability to bend, twist, or reach to perform tasks or engage in heavy lifting. VA treatment records, to include a cardiology consultation record, referenced the Veteran’s employment as a truck driver in May 2020. Considering the above, the Board notes that the medical evidence neither suggests or concludes that the Veteran’s service-connected disabilities, either combined or individually, impair his ability to secure and maintain employment. In making all determinations, the Board has fully considered the evidence of record, to include the Veteran’s lay statements as to the current severity of his service-connected disabilities. While the Veteran is generally competent to report on his current symptoms and their severity, he is not deemed competent to render a medical opinion in the absence of the appropriate expertise. See Layno v. Brown, 6 Vet. App. 465, 469-470 (1994); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). In this case, the VA examiners have fully considered the evidence of record along with the Veteran’s lay assertions regarding his occupational limitations. Although some physical and mental health-related limitations were documented, it was nevertheless concluded that the Veteran’s conditions cause no more than a mild occupational impact. Moreover, the question in consideration is the degree or level of limitation associated with the Veteran’s service disabilities. In the absence of proof of the required training and medical expertise, the question is best considered well-trained and competent medical professionals. The Board has thoroughly considered the Veteran’s lay statements and contentions regarding difficulty maintaining employment due to his service-connected disabilities. However, the Board finds that the VA opinions are entitled to significant probative weight and have consistently found that the Veteran’s service-connected disabilities due not result in an inability to obtain and maintain substantially gainful employment. While the Board does not doubt that the Veteran’s service-connected disabilities cause some social and occupational impairments, and notes that his struggles are regrettable, unemployability due to these disabilities has not been established. Accordingly, as the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107 (b) regarding reasonable doubt are not applicable. The claim of entitlement to TDIU benefits must be denied. K.R. Kardian Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Whitaker, 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.