Citation Nr: 21025722 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 14-01 005 DATE: April 28, 2021 ORDER Entitlement to an initial evaluation of 10 percent, and no greater, prior to February 25, 2015, for a left hip and thigh disability manifesting in limitation of extension is granted. Entitlement to an evaluation in excess of 10 percent beginning February 25, 2015, for a left hip and thigh disability manifesting in limitation of extension is denied. Entitlement to an initial compensable evaluation for a left hip and thigh disability manifesting in limitation of flexion is denied. Entitlement to an initial compensable evaluation prior to February 25, 2015, and beginning again September 15, 2020, for a left hip and thigh disability manifesting in impairment of the thigh is denied. Entitlement to an evaluation of 10 percent, and no greater, from February 25, 2015, through September 14, 2020, for a left hip and thigh disability manifesting in impairment of the thigh is granted. REMANDED Entitlement to a TDIU is remanded. FINDINGS OF FACT 1. Prior to February 25, 2015, the Veteran’s left hip and thigh disability manifested in painful motion and tenderness on palpation; after February 25, 2015, the Veteran was in receipt of the maximum evaluation allowed under Diagnostic Code 5251. 2. Throughout the period on appeal, the Veteran’s left hip and thigh disability manifested in limitation of flexion to, at most, 80 degrees. 3. Prior to February 25, 2015, and beginning again September 15, 2020, the Veteran’s left hip and thigh disability did not manifest in an inability to cross his legs or toe-out more than 15 degrees; from February 25, 2015, throughout September 14, 2020, the evidence of record reflects that the Veteran would be unable to cross his legs after repetitive use of the left hip. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation of 10 percent, and no greater, prior to February 25, 2015, for a left hip and thigh disability have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.71a, Diagnostic Code 5251. 2. The criteria for an evaluation in excess of 10 percent beginning February 25, 2015, for a left hip and thigh disability have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.71a, Diagnostic Code 5251. 3. The criteria for an initial compensable evaluation for a left hip and thigh disability manifesting in limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.71a, Diagnostic Code 5252. 4. The criteria for an initial compensable evaluation prior to February 25, 2015, and beginning again September 15, 2020, for a left hip and thigh disability manifesting in impairment of the thigh have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.71a, Diagnostic Code 5253. 5. The criteria for an evaluation of 10 percent from February 25, 2015, through September 14, 2020, for a left hip and thigh disability manifesting in impairment of the thigh have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1 4.10, 4.71a, Diagnostic Code 5253. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Navy from October 1968 to July 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in July 2016. This case was previously before the Board in October 2017 and March 2020, when it was remanded for development. The case has been returned to the Board for further appellate review. 1. Entitlement to increased evaluations for a left hip and thigh disability The Veteran is currently in receipt of three evaluations for his left hip and thigh disability. The first evaluation is a noncompensable rating prior to February 25, 2015, and a 10 percent rating thereafter under Diagnostic Code (DC) 5251, which governs limitation of extension. The second evaluation is a noncompensable rating under DC 5252, which governs limitation of flexion. The third evaluation is a noncompensable rating under DC 5253, which governs impairment of the thigh. Diagnostic Code 5251 provides only for a 10 percent rating, assigned where extension of the thigh is limited to five degrees. Under DC 5252, a 10 percent rating is warranted for flexion of the thigh 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. Under DC 5253, limitation of rotation of the thigh, where the affected leg cannot toe-out more than 15 degrees, warrants a 10 percent rating. A 10 percent rating is also assigned for limitation of adduction of the thigh, where one cannot cross the legs. Limitation of abduction of the thigh with motion lost beyond 10 degrees warrants a 20 percent rating. A normal range of motion for the hip is 125 degrees in flexion; 30 degrees in extension; 45 degrees in abduction; 25 degrees in adduction; 60 degrees in external rotation; and 40 degrees in internal rotation. Here, the Veteran testified at the July 2016 Board hearing that he had not sought treatment for his left hip and thigh disability, either at a VA medical center or with any private provider. Complaints of and treatment for left hip and thigh pain from the Veteran’s VA treatment records are noted below. In December 2012, the Veteran was afforded a VA joints examination, at which he reported constant left hip and thigh pain, as well as stiffness and tenderness. The examiner noted tenderness to palpation in the left anterior thigh and lateral hip. The range of motion of the left hip was measured to be 120 degrees in flexion; 35 degrees in extension; 40 degrees in abduction; 20 degrees in adduction; and 30 degrees in external and internal rotation. There was no additional loss of motion after three repetitions. In his April 2013 notice of disagreement, the Veteran reported that he was unable to walk for any extended period of time due to pain and weakness in his left hip and thigh. He reported experiencing problems with movement and flexing his hip and thigh. Likewise, in a January 2014 written statement accompanying his substantive appeal, the Veteran reported that he could no longer go for walks, and that he could no longer bend, stoop, or squat to do work he used to be able to do. In October 2014, the Veteran sought treatment at a VA medical center for intermittent left hip and knee pain, which he reported was chronic but was worsening and causing difficulty walking and getting up and down. The Veteran endorsed pain in the left hip at rest and with ambulation. In February 2015, the Veteran attended a VA hip examination, at which he reported daily pain in the left hip and thigh at a level of five out of ten, which can increase to a nine out of ten. He also reported weakness in the left lower extremity since service, and occasional loss of balance when rising from seated during a flare-up. The Veteran reported having three or four flare-ups per week. The range of motion of the left hip was measured to be 90 degrees in flexion; 30 degrees in extension; 30 degrees in abduction; 15 degrees in adduction; 60 degrees in external rotation; and 30 degrees in internal rotation. The Veteran was not noted to be unable to cross his legs, though pain was noted in all ranges of motion as causing functional loss. After repetitive use, the range of motion of the left hip was measured to be more limited in flexion, abduction, and external rotation: 80 degrees in flexion; 20 degrees in abduction; and 30 degrees in external rotation. Although the measurement remained the same, the Veteran was noted to be limited in adduction such that he could not cross his legs. The examiner noted that pain, fatigue, and weakness caused the additional limitations after repetitive use. The examiner also opined that similar limitations to the range of motion would occur during a flare up. Muscle strength was found to be slightly decreased in flexion and extension, and decreased in abduction, though muscle atrophy was not noted. At the July 2016 Board hearing, the Veteran testified that he has a cramping sensation in his left hip that radiates through his quadriceps past the knee into his calf muscle on a daily basis. He reported that the pain unpredictably limits his activity; at times he is able to walk around the house and yard without problem, while at other times he experiences the cramping symptom after only a few steps. The Veteran testified that, in conjunction with the service-connected varicose veins of the left lower extremity, the left hip and thigh disability extremely limits his ability to walk distances or climb stairs. The Veteran’s spouse testified that she has needed to assume more responsibilities around the house, such as yard maintenance, walking the dogs, and cleaning, as the Veteran is unable to perform much physical activity. In August 2017, the Veteran complained of left hip pain to his VA primary care provider during a routine appointment. He reported that his left leg, hip, thigh, and knee have continued to worsen, causing severe pain when walking or working in the yard. The physician ordered an x-ray, which revealed normal results, and prescribed an analgesic cream to use as needed for pain. In December 2017, the Veteran attended another VA examination. He reported increasing pain and weakness in his left hip, which he treated with oral and topical analgesic and topical heat therapy, with no relief. The Veteran also reported decreased range of motion in his left hip and intermittent sharp pain in his left hip that radiates down the left thigh. The range of motion of the left hip was measured to be 90 degrees in flexion; 30 degrees in extension; 30 degrees in abduction; 25 degrees in adduction; 40 degrees in external rotation; and 30 degrees in internal rotation. The Veteran was not noted to be unable to cross his legs, though pain was noted in all ranges of motion and with weight-bearing. There was no additional limitation after three repetitions. Muscle strength was slightly decreased in flexion, extension, and abduction, though muscle atrophy was not noted. The Board notes it previously found this examination to be inadequate to the extent the examiner failed to opine whether pain in passive motion and non-weight-bearing caused any difference in range of motion, as well as in regards to information regarding flare-ups. Therefore, the Board will only consider evidence garnered from this examination unrelated to such inquires, such as the Veteran’s lay statements and initial range of motion measurements. In February 2018, the Veteran sought treatment for left hip pain at a VA medical center, and he was referred for an orthopedic surgery consultation in March 2018, at which he was given a steroid injection in his left hip. The orthopedic surgeon noted bursitis in the left hip, but opined that a major component of the hip pain could be from the Veteran’s lower back disability. In April 2018, he reported that the injection only helped for about a week, but that physical therapy he received in March and April 2018 was more helpful. In May 2019, the Veteran attended another VA orthopedic surgery consultation, at which he reported pain in the left lateral hip, groin area, and left buttock, which radiated down the left leg. He reported that the lateral hip pain does not always occur simultaneously with the radiating radicular pain down the back and sides of both legs. The Veteran reported that weight-bearing and walking increases the pain, which seems to improve when he stops. A hip x-ray did not reveal any abnormalities in the left hip. Based on the result of the injection in March 2018 and the orthopedist’s opinion that a significant portion of the hip pain was radicular pain from the low back, the Veteran declined a repeat injection. In September 2020, the Veteran was afforded another VA examination, at which he reported a constant dull pain in his left hip, with a sharp pain upon rising from seated, lying on the left hip, or standing or walking for long. He reported the hip pain also makes sleeping at night and going up and down stairs difficult. The Veteran reported that the hip pain makes walking further than the end of his driveway difficult, as he begins to limp. The range of motion of the left hip was measured to be 100 degrees in flexion; 20 degrees in extension; 40 degrees in abduction; 20 degrees in adduction; 35 degrees in external rotation; and 20 degrees in internal rotation. The Veteran was not noted to be unable to cross his legs, though pain was noted in all ranges of motion and with weight-bearing. There was no additional limitation after three repetitions. The examiner estimated there would be an additional loss of five degrees of motion in flexion, extension, and external and internal rotation after repetitive use, but no additional loss in any plane during a flare-up. Muscle strength testing was all normal, and no muscle atrophy was noted. The Veteran was noted to use a cane at all times for his left hip disability. Ankylosis, malunion or nonunion of the femur, flail hip joint, and leg length discrepancy were not noted at any point in the record. After review of the evidence of record, the Board finds that an increased evaluation is warranted for certain portions of the period on appeal. First, the Board notes the March 2018 VA orthopedic surgeon’s opinion that a portion of the Veteran’s left hip pain could be caused by a low back disability, which is not a service-connected disability. Where there is no evidence in the record differentiating the pain attributed to the low back disability from the left hip pain caused by the left hip and thigh disability, i.e., general reports of hip pain as opposed to lateral hip pain distinguished from radiating radicular pain, the Board will attribute the reported symptoms to the service-connected left hip and thigh disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (where it is not possible to separate the effects of a service-connected disability from a non-service-connected disability, the signs and symptoms must be attributed to the service-connected disability). As the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability, the Board finds that the minimum compensable rating for the left hip is merited throughout the period on appeal. See 38 C.F.R. § 4.59. The Board notes the provisions of section 4.59 are not limited to arthritis and must be considered when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). Therefore, for the period prior to February 25, 2015, a 10 percent evaluation is warranted under DC 5251. The December 2012 VA examiner noted tenderness to palpation in the left anterior thigh and lateral hip, and during this period the Veteran reported pain in his left hip upon walking, as well as with bending, stooping, or squatting. Although the December 2012 VA examiner noted the range of motion was performed without evidence of pain, tenderness on pressure is also considered under section 4.59. For the period beginning February 25, 2015, an increased evaluation under DC 5251 is not awarded, as the Veteran is currently in receipt of the maximum rating allowed by this diagnostic code. The Board has also considered increases for the two other evaluations the Veteran is in receipt of for his left hip and thigh disability, and finds that an increase is warranted only for the evaluation governing impairment of the thigh. As for the evaluation under DC 5252, governing limitation of flexion, a 10 percent evaluation is assigned for flexion limited to 45 degrees. Throughout the appeal period, the range of motion of the left hip in flexion was measured to be limited to, at most, 90 degrees, and estimated to be limited to, at most, 80 degrees after repetitive use. Therefore, the clinical measurements of the Veteran’s left thigh do not meet the criteria for a compensable evaluation under DC 5252. Likewise, the functional loss described in the record does not tend to approximate limitation of flexion of the left hip to 45 degrees. The Veteran has primarily complained of pain upon prolonged walking or standing, as well as some complaints of stiffness, tenderness, and weakness. Although he consistently and credibly reported being unable to walk very far without pain or beginning to limp, the Board does not find that the pain and other symptoms described by the Veteran indicate that he is unable to flex his left thigh and hip more than 45 degrees, particularly given the clinical measurements of flexion being at least twice that range of motion and the Veteran’s reports that he is able to climb stairs, albeit with pain. The Board notes that the painful motion is compensated for in the Veteran’s 10 percent evaluation for limitation of extension of the left hip and thigh. Therefore, a compensable evaluation for limitation of flexion is not warranted. Regarding the evaluation under DC 5253, a 10 percent evaluation is assigned for external rotation limited to 15 degrees or for adduction limited such that the veteran cannot cross the legs. At no point during the appeal period was the Veteran noted to be limited in external rotation such that he was unable to toe-out more than 15 degrees. However, at the February 2015 VA examination, the examiner opined that the Veteran would be limited in adduction after repetitive use over time such that he would be unable to cross his legs. Therefore, the Board finds that a 10 percent evaluation is warranted under DC 5253, from February 25, 2015, the date of the February 2015 examination, until September 14, 2020, the day prior to the VA examination where the examiner opined the Veteran would still have sufficient range of motion in adduction after repetitive use to be able to cross his legs. A higher evaluation for this period is not warranted, as the record does not reflect limitation of abduction of the left hip such that motion is lost beyond 10 degrees. For the remainder of the appeal period, prior to February 25, 2015, and beginning again September 15, 2020, the Board finds the functional limitation described in the record does not approximate an inability to toe-out more than 15 degrees or to cross the legs. Again, the Veteran’s complaints indicate he is primarily limited by pain, which is compensated for under the compensable evaluation for limitation of extension. His description of cramping, limping, and stiffness does not appear to limit the Veteran’s left hip in the ways contemplated by the criteria under DC 5253, as he did not complain of pain limiting his function in adduction or abduction. In conclusion, the Board finds that the appropriate evaluations for the Veteran’s left hip and thigh disability are a 10 percent rating under DC 5251 throughout the period on appeal; a noncompensable rating under DC 5252 throughout the period on appeal; and a noncompensable rating prior to February 25, 2015, a 10 percent rating from February 25, 2015, through September 14, 2020, and a noncompensable rating beginning September 15, 2020 under DC 5253. REASONS FOR REMAND 2. Entitlement to a TDIU is remanded. A remand is necessary to verify the Veteran’s work history. In October 2016, the Veteran submitted a VA form 21-8940 indicating that he worked as a weather observer for one employer from January 2007 through May 2016. In May 2017, he submitted another VA form 21-8940 indicating that he worked as a weather observer for two different employers, one from January 2011 to January 2014, and the other from July 2016 to January 2017. One of the employers verified that the Veteran worked part-time as weather observer for the company from June 2016 to January 2017. No information has been received from the other company the Veteran reported having worked for. Given the conflicting reports in the record, a remand is necessary to determine the length and nature of the Veteran’s employment prior to June 2016. (Continued on the next page)   The matter is REMANDED for the following action: Take appropriate steps to attempt to verify the Veteran’s work history, to include salary information. Obtain a detailed work history from the Veteran and attempt to verify those details with any employer reported. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Josey, 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.