Citation Nr: 21024030 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 15-04 194A DATE: April 21, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for right hip strain and trochanteric pain syndrome is denied. Entitlement to service connection for a left hip cyst (claimed as left hip disability), to include as secondary to a service-connected disability, is granted. REMANDED Entitlement to service connection for a short leg is remanded. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s right hip strain and trochanteric pain syndrome was manifested by pain and limitation of motion; it was not manifested by flexion to 30 degrees or less; extension to 5 degrees or greater; limitation of abduction such that motion beyond 10 degrees was lost; limitations of adduction such that the legs cannot be crossed; limitation of rotation such that the right leg cannot toe-out more than 15 degrees; or ankylosis. 2. Resolving reasonable doubt in the Veteran’s favor, her left hip cyst (claimed as left hip disability) is at least as likely as not related to active duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating in excess of 10 percent for service-connected right hip strain and trochanteric pain syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, Diagnostic Code (DC) 5019-5252. 2. The criteria for entitlement to service connection for a left hip cyst (claimed as left hip disability), to include as secondary to a service-connected disability, have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from February 1994 to February 1998 and from October 2001 to August 2002. In her January 2015substantive appeal, the Veteran indicated that she wanted to appear at a Board videoconference hearing. However, she later withdrew that request in February 2016. 38C.F.R. § 20.704(e). The Board of Veterans’ Appeals (Board) remanded these matters in October 2020 to obtain updated medical records and medical opinions. The Board is satisfied that there was substantial compliance with the portions of the remand pertaining to the Veteran’s increased rating claim and service connection for left hip cyst claim. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-147 (1999). The Agency of Original Jurisdiction conducted appropriate efforts to develop the record and to provide the Veteran VA examinations as directed in the October 2020 Board remand. However, there was not substantial compliance with the portion of the remand pertaining to the claim for service connection for a short leg, as the examiner did not opine as to whether the Veteran’s leg length discrepancy was aggravated by active duty service or any of her service-connected disabilities. Unfortunately, an additional remand to address that matter is necessary. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board typically considers only those factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). When there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already 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). Nevertheless, in cases where the Veteran’s claim arises from a disagreement with the initial evaluation following the grant of service connection, the Board shall consider the entire period of claim to see if the evidence warrants the assignment of different ratings for different periods of time during these claims a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999). 1. Entitlement to an initial rating in excess of 10 percent for right hip strain and trochanteric pain syndrome The Veteran contends that she is entitled to an initial rating in excess of 10 percent for her service-connected right hip strain and trochanteric pain syndrome. Specifically, she has reported that her hip pain prevents her from exercising, and she suffers from constant daily pain. The Regional Office (RO) assigned a 10 percent initial rating for the Veteran’s right hip disability pursuant to 38 C.F.R. §§ 4.59, 4.71a, DC 5019-5252. Disabilities of the hip and thigh are rated under 38 C.F.R. § 4.71a, DCs 5250 through 5255. 38 C.F.R. § 4.59 allows consideration of functional loss due to painful motion to be rated to at least the minimum compensable rating for a particular joint. In order to warrant a rating in excess of or in addition to the Veteran’s current 10 percent rating, the evidence must show: • Favorable ankylosis of the hip in flexion at an angle between 20 degrees and 40 degrees, and slight adduction or abduction (60 percent under DC 5250); • Limitation of extension of the thigh to 5 degrees (10 percent under DC 5251); • Limitation of flexion of the thigh to 30 degrees (20 percent under DC 5252); • Impairment of thigh abduction to 10 degrees or less (20 percent under DC 5353); • Impairment of thigh adduction such that the legs cannot be crossed (10 percent under DC 5353); or • Impairment of rotation of the thigh such that the affected leg cannot toe-out more than 15 degrees (10 percent under DC 5353). As the Veteran does not have a flail joint of the hip or impairment of the femur, DCs 5254 and 5255 are not for application. After a review of the evidence, the Board determines that a rating in excess of or in addition to the current 10 percent is not warranted. Specifically, the Veteran began seeking treatment for right hip and buttock pain and knots in 1997 and has continued to seek treatment for these symptoms since then. However, there is no evidence in the record of ankylosis. Therefore a higher rating is not warranted under DC 5250. The Veteran underwent a VA examination in July 2012, at which time she reported feeling a knot and pain in the posterior pelvis/buttock with some associated pain at the lateral aspect of the right hip. On physical examination of the right hip, there was some slight tenderness over the femur. Otherwise, she had full range of motion in the hip with no pain on passive motion and no pain or diminished motion after three repetitions. Specifically, her extension was to 0 degrees, flexion to 135 degrees, medial rotation to 30 degrees, and lateral rotation to 45 degrees. The Veteran was diagnosed with intermittent right posterior hip and buttock strain. The Veteran underwent a VA examination for her spine in April 2016, and the examination revealed normal strength with hip flexion. Additionally, it was noted that she has normal power in her hips. Chiropractic treatment records from June 2016 to August 2018 indicate that the Veteran had bilateral hip pain with movement and moderately decreased hip motion, but no numbness, spasms, or weakness. Additionally, while the chiropractor described the Veteran’s range of motion limitations as “moderate,” no range of motion measurements were provided to indicate that right hip flexion was limited to 30 degrees or less, extension to 5 degrees or greater, or abduction to 10 degrees or less, or that the Veteran’s range of motion was limited such that she could not cross her legs or toe-out the right leg more than 15 degrees. Furthermore, there was no evidence of ankylosis. The Veteran’s other medical treatment records also do not contain any such findings. After reporting worsening symptoms, the Veteran underwent another VA examination for her right hip in December 2020. She reported that her left hip hurts more than her right, and her hips will wake her up if she sleeps on her side for too long. She reported that her right hip “snapping” has gone away and the cramps in her right buttock have lessened, although she will still experience knots once per month. She also reported that hip pain is worse with walking too long and getting out of a chair. Additionally, she reported experiencing flare-ups three times per month that last for a day and cause her pain that reaches a five on a scale of ten. The examiner noted that the Veteran has been diagnosed with trochanteric bursitis of the right hip and right hip and buttock strain. Upon physical examination, the Veteran had mild tenderness over the right upper gluteus maximus but demonstrated normal muscle strength in the bilateral hips. Her right hip demonstrated flexion from 0 degrees to 125 degrees, extension from 0 degrees to 15 degrees, abduction to 45 degrees, adduction to 25 degrees, and external and internal rotation to 30 degrees each. The examiner also noted that the Veteran exhibited pain with flexion and adduction. However, there was no pain with weight bearing or evidence of crepitus. The examiner opined that during flare-ups and after repetitive use over time, the Veteran experiences pain with no additional loss of motion. Additionally, the examiner noted that adduction is not so limited that the Veteran cannot cross her legs. Finally, the examiner noted that there is no evidence of ankylosis, and the Veteran does not utilize an assistive device for ambulation. The Board finds these examinations to be probative of the issue on appeal as the examiners’ opinions are predicated on a full understanding of the Veteran’s medical history and provide enough evidentiary basis for the claim to be adjudicated. The examiners provided objective measurements of the Veteran’s right hip and thigh range of motion. Turning to the question of whether any diagnostic code may result in a higher rating for the Veteran’s right hip, the Board finds that that it does not. First, there is no evidence of record of hip ankylosis to support the application of DC 5250, no evidence of flail joint to support the application of DC 5254, and no evidence of malunion or fracture of the femur to support the application of DC 5255. With respect to limitation of motion, there is no evidence of record that the Veteran’s hip flexion is limited to 30 degrees or less to support a higher rating under DC 5252, or that she has limitation of abduction of the thigh to 10 degrees or less under DC 5253. There is also no evidence of record supporting extension limited to 5 degrees or greater, limited adduction such that the legs cannot be crossed, or limited rotation such that the Veteran cannot toe-out the right leg more than 15 degrees such that additional compensable ratings may be warranted under DCs 5251 and 5253. The Veteran was able to extend her right hip between 0 degrees and 15 degrees at the December 2020 VA examination. In arriving at these conclusions, the Board has considered the statements from the Veteran that her right hip disability is worse than the rating she has been assigned. In rendering the 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. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms of pain, tenderness, and range of motion issues because this requires only personal knowledge as it comes to her through her senses, she is not competent to identify a specific level of disability of her right hip according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). On the other hand, such competent evidence concerning the nature and extent of the Veteran’s right hip disability has been provided by the medical personnel who examined her during the current appeal and rendered pertinent opinions in conjunction with the evaluation. The medical findings (as provided in the examination report) directly address the criteria under which this disability is evaluated. The Board finds that the Veteran’s statements are outweighed by the medical evidence of record, particularly the objective findings in the VA examinations, which do not show that the requirements for higher ratings or additional compensable ratings were warranted. In sum, the Board concludes that the Veteran’s service-connected right hip disability has been manifested by degrees of residual pain and range of motion limitations, but not to the extent required to warrant a rating in excess of or in addition to the current 10 percent rating under the relevant rating criteria. As such, an initial rating in excess of 10 percent is not warranted at any time during the period on appeal, and the claim is denied. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. 2. Entitlement to service connection for a left hip cyst (claimed as left hip disability) The Veteran asserts that her left hip cyst was caused by her service-connected right hip disability. After reviewing the evidence of record, the Board determines that service connection is warranted for the Veteran’s left hip cyst. As an initial matter, the Board finds the Veteran’s statements that her left hip disabilities began occurring around 2012 as competent and credible because they are generally consistent with both medical treatment records and VA examination findings. Specifically, the Veteran was diagnosed with a cyst behind the left proximal femur in 2012. Around the same time, the Veteran was also diagnosed with left hip trochanteric bursitis during a July 2012 VA examination. The December 2020 VA examiner opined that it is more likely than not that the Veteran’s left hip trochanteric bursitis is secondary to her service-connected right hip and back disabilities because the sway of her abnormal gait can cause a left lateral hip thrust, causing trochanteric bursitis. As the Veteran’s left hip cyst was diagnosed at approximately the same time and involves the same area of the body, and because the examiner’s opinion is probative medical evidence supporting a causal connection between the service-connected right hip disability and the left hip disability overall, the Board finds the evidence is at least in equipoise to support service connection for the left hip cyst secondary to the Veteran’s service-connected right hip disability. In arriving at this conclusion, the Board acknowledges the negative evidence, including the December 2020 VA examiner’s opinions, which indicate the Veteran’s left hip cyst is not related to service. The Board notes that the examiner’s opinions were based primarily on the fact that the Veteran’s left hip cyst is benign and not currently causing symptoms, and that there is no nexus to indicate that it was caused by service. However, the Board notes that the examiner did not consider whether it was caused or aggravated by the Veteran’s service-connected conditions, and did not consider that it was diagnosed at approximately the same time as the Veteran’s service-connected left hip trochanteric bursitis. As a result, the Board finds that the evidence is at least in equipoise. Therefore, service connection is warranted. REASONS FOR REMAND Entitlement to service connection for a short leg is remanded. The Veteran asserts that her leg length discrepancy is related to her military service or was caused by or aggravated by her service-connected hip disabilities. This matter was remanded in October 2020 to determine whether it is at least as likely as not that the Veteran’s leg length discrepancy had its onset in, or is otherwise attributable to, active duty service. The Board also instructed the examiner to opine as to whether this disability was caused or aggravated by her service-connected lumbar disability, radiculopathy of the lower extremities, and hip and buttock disabilities. The December 2020 VA examiner opined that the Veteran’s leg length discrepancy is less likely than not related to active duty service or secondary to her service-connected disabilities because it is more likely that it is either congenital or caused by her epiphysiodesis surgery from childhood, both of which would have pre-existed service. Specifically, the Veteran’s epiphysiodesis surgery is noted on the Veteran’s entrance examination. Unfortunately, the examiner did not opine as to whether the Veteran’s leg length discrepancy was aggravated beyond its natural progression by active duty service or by the Veteran’s service-connected disabilities. As such, an addendum opinion is required. The matters are REMANDED for the following action: Forward the claims file to the VA examiner who conducted the December 2020 VA examination (or to another VA examiner if the original examiner is unavailable) for an addendum opinion as to whether the Veteran’s short leg is at least as likely as not (i.e. a 50 percent or greater probability) aggravated beyond its natural progression by the Veteran’s active duty service or by her service-connected disabilities, to include lumbar disability, radiculopathy of the lower extremities, right hip and buttock disabilities, and left hip disabilities. The examiner should provide complete rationales for all opinions based on a review of the record. A new examination is not necessary unless deemed so by the examiner. 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. T. J. ANTHONY Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Veltri, 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.