Citation Nr: 21023907 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 17-53 167 DATE: April 21, 2021 ORDER Entitlement to a rating higher than 50 percent for residuals, status post (s/p) right total hip replacement for the period between November 1, 2015 to January 20, 2021, is denied. Entitlement to a rating of 70 percent, but no more, for residuals, s/p right total hip replacement for the period beginning January 20, 2021, is granted. FINDINGS OF FACT 1. For the period between November 1, 2015 to January 20, 2021, the preponderance of the evidence supports a finding that the Veteran’s right hip replacement, manifest in no more than moderately severe residual weakness, pain, or limitation of motion. 2. For the period beginning January 20, 2021, the Veteran’s right hip replacement has been shown to manifest in markedly severe residual weakness, pain, or limitation of motion. CONCLUSIONS OF LAW 1. The criteria for a disability rating higher than 50 percent for right hip replacement, for the period between November 1, 2015 to January 20, 2021, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5054. 2. The criteria for a disability rating of 70 percent, but no more, for right hip replacement, for the period beginning January 20, 2021, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, DC 5054. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1997 to November 2001. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified in a November 2019 Board hearing. This matter was previously before the Board in February 2020 and most recently in December 2020, when it was remanded for a new VA examination that complies with motion testing outlined in Correia v. McDonald, 28 Vet. App. 158 (2016), specifically to include range of motion (ROM) joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing, and, if possible, ROM measurements of the opposite undamaged joint; or in the alternative to explain why such testing is not necessary in the Veteran’s case. The record establishes that VA requested and obtained a new VA examination in January 2021. The Board notes that, to the full extent possible, VA complied with all prior remand instructions, and there exist no deficiencies in VA’s duties to notify and assist in that regard. See Stegall v. West, 11 Vet. App. 268 (1998). The matter has returned to the Board for further appellate review. The Board notes that a discussion of TDIU is not necessary as this benefit was already granted effective March 30, 2016, the date of the Veteran’s notice of intent to file claim. See February 2021 rating decision. This case raises no further issues. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairment of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Disabilities of the musculoskeletal system are primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202; 38 C.F.R. § 4.40, 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The regulations pertaining to rating the musculoskeletal system including DCs 5000-5331 were amended, effective February 7, 2021. See 85 Fed. Reg. 76453, 76460 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DCs 5000-5331). After a thorough review of the old and new regulations addressing the schedule of ratings for the musculoskeletal system, the Board observes the substantive criteria for disability ratings under DC 5054 for prosthetic replacement of the hip remains the same. Prior to February 7, 2021, DC 5054 provided a 100 percent rating for one year following the implantation of prosthesis then a minimum 30 percent rating. A 50 percent rating is warranted for moderately severe residuals of weakness, pain or limitation of motion. A 70 percent rating is warranted for markedly severe residual weakness, pain, or limitation of motion. A 90 percent rating is warranted for painful motion or weakness such as to require the use of crutches. Under the revised rating criteria effective February 7, 2021, DC 5054 encompasses both the resurfacing and implantation of prosthesis of the hip. Further, the 100 percent rating under this DC is awarded for four months following either the implantation of a prosthesis or resurfacing. Finally, the Note to DC 5054 provides that at the conclusion of the 100 percent evaluation period, the disability involving resurfacing should be evaluated under DCs 5250 through 5255, with no minimum evaluation for resurfacing. The terms “moderately severe” and “markedly severe” as used under Diagnostic Code 5054 are not defined in the Schedule. Rather than applying a mechanical formula to determine when symptomatology is “moderately severe” or “markedly severe,” the Board must evaluate all the evidence to ensure an “equitable and just” decision. 38 C.F.R. § 4.6. Normal ROM of the hip is from 0 to 125 degrees of flexion, 0 to 30 degrees of extension, 0 to 45 degrees of abduction, 0 to 25 degrees of adduction, 0 to 60 degrees for external rotation, and 0 to 40 degrees for external rotation. See 38 C.F.R. § 4.71, Plate II. 1. Increased rating for right hip replacement for the period between November 1, 2015 to January 20, 2021. The Veteran seeks a 70 percent rating for his right hip disability. See October 2016 and June 2020 Notices of Disagreement (NOD), where the Veteran contends his impairment is severe with pain, with residual weakness, and limited motion. After a thorough review of the claims file, the Board finds that a rating higher than 50 percent for the period between November 1, 2015 to January 20, 2021, is not warranted. Post-service treatment records include separate May 2016 primary care and nursing records that noted right hip pain. A February 2017 VA orthopedic surgery clinic record noted multiple injections for iliopsoas with the past 2-3 months and a notation that the Veteran has started to have some pain with sitting. The treatment provider noted the Veteran can be passively flexed to 90, internal rotation to 20, external rotation to 30 degrees. An August 2017 VA orthopedic surgery outpatient record that noted the Veteran was complaining about right hip pain s/p right hip replacement. The record notes that the Veteran uses a cane and has an associated limp. The examination revealed weak straight leg raise, painful in thigh and groin. With knee bent, the Veteran was able to flex at the hip. There was flexion passively to 90 degrees, internal rotation to 20, and external rotation to 30. There was pain with all motions all localizing to same spot. The Veteran was referred for physical therapy based on weak hip abductors and poor gait and mobility. An August 2017 VA nutritional consult noted physical activity was currently limited due to hip/knee pain; he may be getting another hip replacement soon. A November 2017 orthopedic surgery record noted the Veteran has had four iliopsoas injections, with good but temporary relief, within the last month, and the Veteran reported pain was worse with prolonged walking and stairs. The Veteran had tried pain medication, stretching, and physical therapy (around time of surgery), but nothing has helped. The Veteran used a cane and had an associated limp. An October 2017 physical therapy record noted flexion to 110. Internal and external rotation were with pain, but within normal limits. A separate October 2017 physical therapy record noted the Veteran can walk 5-15 minutes without a cane before his knee would give out. The record also noted that the Veteran had fallen 2-4 times in the last six months after his right side gave out. A February 2018 orthopedic surgery record noted a follow-up 3.5 s/p right hip replacement. The Veteran was noted to have a mild limp with a cane. The Veteran was also noted to have groin pain and hip flexor weakness with mid-thigh pain. Hip ROM was 0-90, and he had groin pain at 90 degrees. Mild trochanteric tenderness was noted. A January 2020 physical medicine rehabilitation record noted that the Veteran’s right hip pain was multifactorial in nature. Right femur pain and right hip joint pain were most likely related to patient’s right hip replacement or scar tissue from prior surgeries. It was noted that the Veteran had not been seen by orthopedics since February 2018 and would benefit from follow-up to discuss surgical options. The record also noted that the Veteran’s hip flexor demonstrated weakness, as well as more myofascial pain in right hip flexor, iliotibial band syndrome, and piriformis. The provider concluded that the Veteran would benefit from new evaluation by physical therapy to address these issues, and a referral was noted. The Veteran was afforded an October 2015 VA hip and thigh examination, wherein the examiner confirmed diagnoses of right hip joint replacement, right iliopsoas tendonitis, and residuals s/p 2014 right hip surgery. The Veteran reported that pain had increased since the 2014 right hip replacement. Flare-ups were not reported, but the Veteran did report functional loss or impairment described as an inability to stand or walk for than 20 minutes due to right hip pain. ROM testing results included right hip flexion limited to 90 degrees, extension limited to 15 degrees, abduction limited to 25 degrees, adduction limited to 10 degrees, external rotation limited to 30 degrees, and internal rotation limited to 20 degrees. The Veteran was unable to cross his legs. Objective evidence of pain with weight bearing was noted; however, there was no pain on palpation and no evidence of crepitus. The examiner found that the Veteran was able to perform repetitive-use testing with no additional loss of function or range of motion. Right hip muscle strength testing was noted 4/5 for flexion, extension, and abduction. No atrophy or ankylosis was noted, and the examination was negative for malunion or nonunion of femur, flail hip joint or leg length discrepancy. Residuals of the right hip replacement were noted to include moderately severe residuals of weakness, pain, or limitation of motion. The examiner noted that the Veteran constantly used a cane while walking. Diagnostic imaging from September 2015 was noted with no radiographic evidence of hardware complication. Following the Board’s November 2019 remand, the Veteran was afforded a new VA hip and thigh conditions examination in February 2020. The examiner confirmed a diagnosis of s/p right hip surgery. The Veteran reported right hip pain is constant with varying intensity but characterized as 6/10. Flare-ups were reported with prolonged sitting or standing with pain increasing to 9/10, and the Veteran indicated that sitting or standing for more than 30 minutes was difficult because of his hip. ROM testing results indicated right hip flexion was limited to 90 degrees, extension limited to 15 degrees, abduction limited to 20 degrees, adduction limited to 10 degrees, external rotation limited to 40 degrees, and internal rotation limited to 20 degrees. The Veteran was unable to cross his legs. Pain was noted in all ROMs. Objective evidence of pain with weight bearing was noted. No evidence of crepitus was noted. The examiner found that the Veteran was able to perform repetitive-use testing, with no additional loss of function or range of motion. The examiner noted that there was no basis to note additional losses of function or motion with repeated use or during flare-ups. No additional factors contributing to right hip disability were noted. Right hip muscle strength testing was noted 4/5 for flexion, extension, and abduction. No atrophy or ankylosis was noted, and the examination was negative for malunion or nonunion of femur, flail hip joint, or leg length discrepancy. The examiner confirmed right hip replacement in 2014 and noted moderately severe residuals of weakness, pain, or limitation of motion. Regular use of a cane while walking was also noted. The Veteran and his spouse testified during a November 2019 Board hearing that his right hip pain prevented him from working; he could not stand for long, sit for long, or walk for long. In addition, the Veteran’s right hip pain prevented him from working around the house, coaching his daughter’s soccer team, or simply walking around. The Board finds that the Veteran and his spouse are competent to observe the severity of any reported pain. However, the Board notes neither the Veteran nor his spouse has been shown to possess the medical experience or training to evaluate the severity of hip symptoms on a spectrum as required for an analysis for rating purposes. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Accordingly, their lay opinions lack probative value and are substantially outweighed by the VA examiners. The Board finds that the Veteran is not entitled to a disability rating higher than 50 percent for the period between November 1, 2015 to January 20, 2021. As noted above, in determining when symptomatology is “moderately severe” or “markedly severe,” the Board must evaluate all the evidence to ensure an “equitable and just” decision. 38 C.F.R. § 4.6. In this case, the Board finds that the Veteran’s right hip replacement residuals were at worst moderately severe and not markedly severe based on a review of the relevant medical evidence of record. While treatment records note that the Veteran complained about pain s/p right hip replacement, ROM testing in the October 2015 and February 2020 examinations did not demonstrate severe limitation of motion of the Veteran’s hip. The Board assigns great probative value to the examiner’s opinion for the reasons discussed above. As such, the record does not show that that the Veteran has had markedly severe post-operative residuals at any time between November 1, 2015 to January 20, 2021. Accordingly, the Veteran’s right hip symptomatology has more closely approximated the criteria for a rating higher than 50 percent under DC 5054 for the period between November 1, 2015 to January 20, 2021. As noted in the October 2016 and June 2020 NODs, the Veteran asserts entitlement to separate ratings based on limitation of hip and thigh ROM limitation under DCs 5251, 5252, and 5253. These DCs all provide ratings based on pain and limited motion. The Board notes that pain and limited motion are expressly contemplated under DC 5054. The Veteran’s pain and limited motion of the right hip are thus expressly contemplated in his current disability rating under DC 5054. As such, awarding the Veteran separate, additional ratings, under DCs 5251, 5252, and/or 5253 would constitute impermissible pyramiding because such action would result in the Veteran receiving two ratings based on the same manifestations of disability. See 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259 (1994). To maximize the Veteran’s disability rating, the Board has also considered whether disability ratings under DCs 5251, 5252, and/or 5253 in the alternative to a rating under DC 5054 would result in a higher rating. The Board finds that these ratings would not result in a higher disability rating. DC 5251 (limitation of extension of the thigh) provides a rating of 10 percent when extension is limited to 5 degrees, but for the entire period between November 1, 2015 to January 20, 2021, the Veteran’s hip extension was limited to 15 degrees at worst. DC 5252 (limitation of flexion) provides a 10 percent disability rating for flexion limited to 45 degrees, but for the entire period between November 1, 2015 to January 20, 2021, the Veteran’s flexion was at worst 70 degrees. Therefore, under DC 5252, the Veteran is not entitled to a compensable disability rating. DC 5253 (limitation of abduction, adduction, and rotation) does not provide a rating higher than 20 percent. Thus, the Board notes that that the Veteran’s disability rating considered under limited in the alternative would result in a lower rating than the 50 percent under DC 5054 for hip replacement during this period. The Board also considered whether the Veteran is entitled to a higher, or separate rating, for right hip disability under the remaining DCs that address hip and thigh disabilities. However, there is no indication in the record that the Veteran has experienced ankylosis of the right hip, flail joint of the right hip, or impairment of the right femur. Therefore, no higher, or separate rating, is warranted under those DCs. See 38 C.F.R. § 4.71a, DCs 5250, 5254, and 5255. In short, the preponderance of the evidence during the period from November 1, 2015 to January 20, 2021, establishes symptomatology warranting a 50 percent rating, and no more, for the right hip replacement under both the old and the amended criteria for DC 5054. To this extent, the Veteran’s appeal is denied. 2. Increased rating for right hip replacement for the period from January 20, 2021. The Board has compared the above with a January 20, 2021, VA hip and thigh conditions examination. Following a review of the medical records and an in-person examination, the examiner confirmed a diagnosis of s/p right hip replacement from 2014. The examiner noted that the Veteran’s condition had progressed/worsened with pain, loss of ROM, and weakness. Flare-ups were reported 2-3 daily described as a sharp, stabbing pain, in the femur. The examiner indicated that the flare-ups were severe in character. The Veteran described functional loss as difficulty putting on socks, cutting toenails, running, and loss in ROM. Right hip flexion was limited to 80 degrees, extension limited to 10 degrees, abduction limited to 20 degrees, adduction limited to 20 degrees, external rotation limited to 20 degrees, and internal rotation limited to 20 degrees. The Veteran was unable to cross his legs. Passive ROM was unchanged. Pain was noted in all ROMs in weight-bearing, non-weight-bearing, active and passive motion, and on rest. No evidence of crepitus was noted. Additional loss was noted with repetitive-use testing and flare-ups with pain, fatigability, and weakness. Functional ability was estimated in ROM flexion to 70 degrees, extension to 0 degrees, abduction to 10 degrees, adduction to 10 degrees, external rotation to 10 degrees, and internal rotation to 10 degrees. No atrophy or ankylosis was noted, and the examination was negative for malunion or nonunion of femur, flail hip joint or leg length discrepancy. The examiner confirmed right hip replacement in 2014 and noted moderately severe residuals of weakness, pain, or limitation of motion. Regular use of a cane for pain control and balance while walking was noted. VA treatment records during the period from January 20, 2021, are consistent with the Veteran’s January 2021 VA examination and note the report of right hip pain. Affording the Veteran with the benefit of the doubt, the Board finds that the Veteran’s symptoms and overall right hip impairment more nearly approximate the criteria for a 70 percent rating from January 20, 2021, based on the regular use of a cane while walking and the worsening ROM limitation during flare-ups and repetitive use. Although the Veteran uses a cane for ambulation and support, there is no evidence in the record that shows it is medically required for his disability. The Veteran asserted that his right hip disability was worse than the currently rated 50 percent in his June 2020 NOD, and the Board agrees. However, the Board also finds that the criteria for a 90 percent rating have not been met per DC 5054, as there is no indication in the record that the painful motion or weakness requires the use of crutches. For the foregoing reasons, a rating of 70 percent, but not higher, is warranted from January 20, 2021. The Board notes that as a 70 percent evaluation for right hip replacement was the level of evaluation sought, this is considered a full grant of the benefit sought on appeal for the period from January 20, 2021. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Banks, 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.