Citation Nr: 21024308 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 16-09 156 DATE: April 22, 2021 ORDER An initial disability rating higher than 10 percent for a right hip strain status post fracture, to include on an extraschedular basis, is denied. An initial compensable rating for limitation of flexion of the right hip is denied. An initial compensable rating for limitation of adduction of the right hip is denied. Service connection for a lumbar spine disability, to include on a secondary basis, is denied. FINDINGS OF FACT 1. The Veteran's right hip range of motion is flexion to 100 degrees, extension to 20 degrees, abduction to 30 degrees, adduction was to 15 degrees, external rotation to 45 degrees, and internal rotation to 30 degrees. 2. The Veteran's lumbar spine disability is not secondary to service-connected right hip disabilities and is not otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent for a right hip strain status post fracture are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5251. 2. The criteria for an initial compensable rating for limitation of flexion of the right hip are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.40, 4.45, 4.59, 4.71a, DC 5252. 3. The criteria for an initial compensable rating for limitation of adduction of the right hip are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.40, 4.45, 4.59, 4.71a, DC 5253. 4. The criteria for service connection for a lumbar spine disability due to service or a service-connected disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1987 to June 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from July 2014 rating decision. The Board remanded the claims in July 2019 for further development. The Board finds that there has been substantial compliance with the remand directives. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. When, as here, the Veteran is requesting a higher rating for an already established service-connected disability, the present disability level is the primary concern and past medical reports do not take precedence over current findings. However, “staged” ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. In exceptional situations where the rating criteria is inadequate, it may be appropriate to refer the case for extraschedular consideration. 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111, 114 (2008); aff’d, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The governing norm in these exceptional cases is a finding that the disability at issue presents such an exceptional or unusual disability picture with related factors such as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). These criteria have been broken up into two elements: (1) The schedular criteria must be inadequate to describe the claimant’s disability level and symptomatology and (2) There must be related factors such as marked interference with employment or frequent periods of hospitalization. Thun v. Peake, 22 Vet. App. 111, 114 (2008); Anderson v. Shinseki, 22 Vet. App. 423, 427 (2009). If both elements are met, the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether the claimant’s disability picture requires the assignment of an extraschedular rating. Thun, 22 Vet. App. at 116; 38 C.F.R. § 3.321(b). If either element is not satisfied, then referral is not warranted. Yancy v. McDonald, 27 Vet. App. 484, 494-95 (2016). As an initial matter, the Veteran underwent a VA examination in February 2016. However, as discussed in the July 2019 Board decision, this examination was found to be inadequate for adjudication purposes. Specifically, the Board found that this examination did not comply with the requirements set forth in Correia v. McDonald, 28 Vet. App. 158 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). Therefore, the Board will not use the measurements obtained during this examination when assessing the current increased rating claims. Right Hip Strain The Veteran’s right hip strain status post fracture is assigned a 10 percent rating pursuant to DC 5251. The Veteran claims she is entitled to an increased rating, including on an extra-schedular basis. Under DC 5251, a 10 percent rating is the maximum rating assignable for limitation of extension to 5 degrees. As such, a rating higher than 10 percent is not permitted. The Board has considered whether a higher rating could be assigned under any other potentially applicable rating criteria but finds that finds that none of the other codes that provide for a disability rating higher than 10 percent for limitation of extension are applicable. Specifically, at no time was the Veteran found to have ankylosis or flail joint of the right hip, nor was she found to have an impairment of the femur, which renders DCs 5250, 5254, and 5255 inapplicable. Further, regarding the Veteran’s claim she is entitled to an extra-schedular rating, the Board finds that Thun step two is not satisfied. Johnson v. Shinseki, 26 Vet. App. 237, 247 (2013) (en banc) (error in Thun step one analysis is harmless were Board makes an adequate finding that Thun step two is not satisfied). The Veteran’s right hip strain does not present an exceptional disability picture with related factors such as marked interference with employment or frequent hospitalization. 38 C.F.R. § 3.321(b)(1). Indeed, the Veteran has not been hospitalized for this condition. All VA examinations found symptomology that is directly considered by the rating criteria, and no “other pertinent physical findings, complications, conditions, signs or symptoms” related to a right hip strain. Moreover, while some examiners found functional impact in the form of needing a job that allowed him to eat meals at scheduled times and eat if he becomes hypoglycemic, there is no evidence indicating any marked interference with employment. In fact, the evidence indicates that the Veteran was not employed during the appeal period, therefore there could be no marked interference with employment due to a right hip disability. Neither the Veteran nor her representative have identified any evidence which supports such a finding or a higher rating. The Board has again considered the lay statements of evidence and has concluded that the medical evidence, prepared by skilled professionals, is more probative regarding the Veteran’s degree of disability. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Limitation of Flexion and Adduction of the Right Hip The Veteran's limitation of flexion is assigned a noncompensable (0%) percent rating pursuant to DC 5252. Additionally, the Veteran’s limitation of adduction is assigned a noncompensable rating pursuant to DC 5253. Under DC 5252, a Veteran is entitled to a 10, 20, 30, or 40 percent rating for flexion of the thigh limited to 45, 30, 20, or 10 degrees, respectively. Diagnostic Code 5253 provides for a 10 percent rating where there is impairment of the thigh, resulting in limitation of rotation of the affected leg, such that she cannot toe-out more than 15 degrees, or there is a limitation of abduction such that the Veteran cannot cross her legs. A 20 percent rating is warranted under DC 5253 where impairment of the thigh causes limitation of abduction of motion lost beyond 10 degrees. 38 C.F.R. § 4.71a. The Veteran underwent a VA examination in December 2019. Range of motion testing of the right hip revealed the following: flexion to 100 degrees, extension to 20 degrees, and abduction to 30 degrees, abduction to 15 degrees, external rotation to 45 degrees, and internal rotation to 30 degrees. Ankylosis was not found. The Veteran was unable to cross her legs and pain was noted which caused functional loss. VA medical records document the Veteran’s continued complaints and treatment regarding hip pain and limitation of motion. Based on the above findings, the Board does not find that the Veteran’s right hip impairment equates to a compensable rating for limitation of motion. Her examinations and the other medical records of evidence do not show that the Veteran had an impairment of her right hip such that her right hip flexion was limited to 45 degrees. Further, her examination and medical records do not show limitation of rotation of her right hip, nor an inability to cross her legs. Based on these findings, a compensable rating for the limitation of the Veteran's flexion or impairment of the right hip is not warranted or supported by the record. There is no indication, even considering the Veteran's reports of limits caused by pain and flare-ups, that her right hip flexion was limited to any range less than 100 degrees which is well above the minimum limitation of 45 degrees necessary for a compensable rating. Neither the Veteran nor her representative have identified any evidence which supports such a finding or a higher rating. The Board has again considered the lay statements of evidence and has concluded that the medical evidence, prepared by skilled professionals, is more probative regarding the Veteran's degree of disability. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Lumbar Spine Disability The Board concludes that, while the Veteran has a diagnosis of intervertebral disc syndrome (IVDS) of the spine the preponderance of the evidence is against finding that this condition began during active service, or is otherwise related to an in-service injury, event, or disease. The Veteran underwent a VA examination in December 2019 to determine the etiology of her intervertebral disc syndrome. The examiner ultimately concluded that it was less likely than not that the Veteran’s current back disability were incurred in or caused by the claimed in-service injury, event, or illness. Further, the examiner noted that the Veteran’s IVDS is less likely than not proximately due to or the result of the Veteran’s service connected hip conditions. Lastly, the examiner also concluded that the Veteran’s IVDS is less likely than not aggravated beyond its natural progression by the Veteran’s service connected hip conditions. Specifically, the examiner noted that there is no connection between residuals of a previous hip fracture and degenerative disc disease as well as no connection between residuals of a hip fracture and IVDS. No evidence has been submitted to contradict the VA examiner’s opinion. Although the Veteran is competent to report observable complaints, he is not competent to provide a diagnosis or etiology to account for such complaints. Rather this question requires medical expertise due to the complex nature of the disability. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, the preponderance of the evidence is against service connection for a low back disability. Reasonable doubt does not arise, and the benefit-of-the-doubt doctrine does not apply; the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jorge Barroso, 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.