Citation Nr: 21024823 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 16-07 715 DATE: April 26, 2021 ORDER Entitlement to an evaluation of 10 percent, but no higher, for right hip arthritis limitation of extension prior to November 15, 2019 is granted. Entitlement to an evaluation in excess of 10 percent for right hip arthritis limitation of extension from November 15, 2019 is denied. Entitlement to an evaluation of 40 percent, but no higher, for right hip arthritis limitation of flexion is granted. FINDINGS OF FACT 1. After resolving reasonable doubt in the Veteran’s favor, his right hip had functional loss comparable to extension limited to five degrees prior to November 15, 2019. 2. The Veteran has already been awarded the maximum rating for limitation of extension of the right hip from November 15, 2019. 3. After resolving reasonable doubt in the Veteran’s favor, his right hip has had functional loss comparable to flexion limited to ten degrees. CONCLUSIONS OF LAW 1. The criteria for entitlement to an evaluation of 10 percent, but no higher, for right hip arthritis limitation of extension prior to November 15, 2019 have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (Code) 5251 (2020). 2. The criteria for entitlement to an evaluation in excess of 10 percent for right hip arthritis limitation of extension from November 15, 2019 have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Code 5251 (2020). 3. The criteria for entitlement to an evaluation of 40 percent, but no higher, for right hip arthritis limitation of flexion have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Code 5252 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1980 to August 1991 and January 1995 to July 1995, with an additional period of active duty for training (ACDUTRA) from January 1994 to July 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2017 rating decision by the Department of Veterans Affairs (VA). This case was remanded in May 2019 and November 2020 for further development. In October 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In any claim for an increased rating, “staged” ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. When evaluating musculoskeletal disabilities based on limitation of motion, there must be consideration of functional loss caused by factors that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.40. Consideration must also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. 38 C.F.R. § 4.45; see DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (“functional loss caused by pain must be rated at the same level as if that functional loss were caused by some other factor…that actually limited motion” (emphasis removed)). Nonetheless, even when the background factors listed in §§ 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under §§ 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016). The provisions of 38 C.F.R. § 4.59 acknowledge that a claimant’s disability may cause actual pain or painful motion but still not be severe enough to warrant a compensable rating under the appropriate Code. Accordingly, when there is evidence of painful motion, § 4.59 operates to provide at least the minimum compensable rating available under the Code for the joint. See Sowers v. McDonald, 27 Vet. App. 472, 478 (2016). However, pain alone does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system. Pain in, like deformity of or insufficient nerve supply to, a particular joint may result in functional loss, but only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 38-39 (2011). The Board notes that there are no VA examinations in compliance with Correia v. McDonald, 28 Vet. App. 158 (2016). Specifically, the examinations either do not discuss passive range of motion or did not discuss whether active and passive range of motion measurements were for weight-bearing or non-weight-bearing motion. See, e.g., December 2020 VA examination. However, the Board is awarding the Veteran the maximum ratings allowed under the applicable Codes for his right hip. Notably, the Veteran did not appeal the issue of entitlement to an increased rating for right hip arthritis with limitation of adduction. See February 2017 notice of disagreement. Thus, for the issues before the Board, the Veteran is receiving the maximum ratings and remanding for a new examination would have no reasonable possibility of substantiating the claim. Thus, the Board finds that remand for a new examination is unnecessary. 1. Entitlement to a compensable evaluation prior to November 15, 2019 and in excess of 10 percent thereafter for right hip arthritis limitation of extension. The Veteran’s right hip arthritis limitation of extension is rated pursuant to Code 5251, which is for limitation of extension of the thigh. Pursuant to that Code, a maximum rating of 10 percent is awarded for extension limited to five degrees. 38 C.F.R. § 4.71a. During a December 2016 VA hip examination, the Veteran reported constant swelling and hip pain every day. He would have flare-ups that occurred every day, multiple times per day with activity, lasting 15 to 20 minutes. He would have a prolonged flare-up once a month, lasting three to four days. He could barely walk during the flare-ups, and pain was an eight to nine out of ten in severity. During the flare-ups, his activity was severely limited as he could barely walk. In between flare-ups, the maximum he could walk was 100 to 150 feet. He could only stand for 10 minutes at a time and was unable to run. He would have difficulty with stairs and was unable to exercise. He verbalized pain with all passive range of motion measurements. The examiner opined that less movement than normal, weakened movement, disturbance of locomotion, and interference with sitting and standing were contributing factors of disability. After resolving reasonable doubt in the Veteran’s favor, the Board finds that his right hip arthritis manifested in functional loss comparable to limitation of extension to five degrees. Because adequate range of motion measurements were not provided, range of motion measurements of record are not given probative weight. His flare-ups are frequent and severe, restricting his ability to walk, run, and climb stairs. Additionally, the Board assigns significant probative weight to the Veteran’s verbalized pain with all passive range of motion. The Veteran is competent to report his pain and finds his reports credible. Thus, after resolving reasonable doubt in his favor, his limitation of extension was limited to five degrees after considering functional loss caused by pain, weakness, and the prevalence of flare-ups. Thus, a rating of 10 percent for limitation of extension is warranted prior to November 15, 2019. Now that the Board has granted an evaluation of 10 percent for the period prior to November 15, 2019, he is rated at 10 percent for the entire appeal period. Code 5251 has a maximum rating of 10 percent. Thus, an evaluation in excess of 10 percent must be denied. 2. Entitlement to an evaluation in excess of 10 percent for right hip arthritis limitation of flexion. The Veteran’s right hip arthritis limitation of flexion is rated pursuant to Code 5252. Pursuant to that Code, a 10 percent rating is awarded for flexion limited to 45 degrees. A 20 percent rating is awarded for flexion limited to 30 degrees. A 30 percent rating is awarded for flexion limited to 20 degrees. A maximum 40 percent rating is awarded for flexion limited to 10 degrees. 38 C.F.R. § 4.71a. In addition to the Veteran’s reports during his December 2016 VA examination, as described above, he reported constant pain in his hip during a November 2019 VA examination. The pain would be present even while sitting or laying down. His right hip would swell if he walked more than 50 yards. Flare-ups would limit his ability to walk and climb up and down stairs. During a December 2020 VA examination, the Veteran reported constant pain in the right hip, even when he was sleeping. It hurt worse with movement. During flare-ups, there were times where he could not walk at all, which would take place after moderate activity such as carrying moderately heavy loads (25 pounds) into the house. For example, he might carry a 25 pound bag of cat litter into the house and would be completely laid up for a day. However, the Veteran described that his service-connected back disability also impaired his movements. Stairs were difficult and he could not run due to his back and hip. He would walk perhaps 200 yards before having to stop. After resolving reasonable doubt in the Veteran’s favor, the Board finds that his right hip limitation of flexion has had functional loss comparable to flexion limited to ten degrees. Notably, the Veteran’s reported flare-ups would prevent him from moving for a day. His pain is constant and affected by any movement. These symptoms suggest severe functional loss of his right hip, especially during flare-ups, and that his ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance is limited. Although the Veteran reported that some of his symptoms can also be partially attributed to his back, see December 2020 VA examination, the Board finds that his reports during earlier VA examinations that focus solely on his hip outweigh the reports about functional loss due to his back. Because the Veteran’s right hip has functional loss comparable to flexion limited to ten degrees, an evaluation of 40 percent is warranted. Because the Veteran has been awarded an evaluation of 40 percent for limitation of flexion, he has been awarded the maximum rating allowed pursuant to Code 5252. See 38 C.F.R. § 4.71a. As a result, he is not entitled to a higher evaluation, and an evaluation in excess of 40 percent for right hip arthritis limitation of flexion must be denied. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Sandler, 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.