Citation Nr: 21026106 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 16-28 309 DATE: April 29, 2021 ORDER Entitlement to an increased rating in excess of 10 percent for left hip abductor complex internal derangement with limitation of flexion is denied. Entitlement to an initial compensable rating for left hip limitation of extension is denied. Entitlement to an initial compensable rating for left thigh impairment is denied. FINDINGS OF FACT 1. The Veteran’s left hip abductor complex internal derangement with limitation of flexion was not manifested by additional functional loss more closely approximating limitation of flexion to 45 degrees or less. 2. The Veteran’s left hip limitation of extension was not manifested by additional functional loss more closely approximating limitation of extension to 5 degrees. 3. The Veteran’s left thigh impairment was not manifested by additional functional loss more closely approximating abduction lost beyond 10 degrees, adduction limited such that she cannot cross legs, or rotation limited such that she cannot toe-out more than 15 degrees. CONCLUSIONS OF LAW 1. The criteria for an increased rating in excess of 10 percent for left hip abductor complex internal derangement with limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5252. 2. The criteria for an initial compensable rating for left hip limitation of extension have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5251. 3. The criteria for an initial compensable rating for left thigh impairment have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5253. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 2005 to July 2006. The Veteran appealed a December 2014 rating decision by the Agency of Original Jurisdiction (AOJ). In October 2018, the Board of Veterans’ Appeals (Board) remanded the Veteran’s claim to the AOJ for further action consistent with the Board’s remand directives. The claim is back before the Board for further appellate proceedings. The Board finds there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). A July 2020 rating decision granted service connection for left hip limitation of extension and left thigh impairment at noncompensable levels. The Veteran’s prior representative withdrew their representation. See January 2017 correspondence. As the Veteran has not appointed a new representative since her representative’s withdrawal, the Veteran is unrepresented in her appeal. When a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where the question to consider is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a “staged” rating are required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has 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). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. For disabilities evaluated based on limitation of motion, the Department of Veterans Affairs (VA) is required to apply the provisions of Sections 4.40 and 4.45 pertaining to functional impairment. 38 C.F.R. §§ 4.40, 4.45. The United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain during flare-ups and after repetitive use over time. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). The Board notes that 38 C.F.R. § 4.59, entitled “Painful motion,” states, in pertinent part, “The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.” In Burton v. Shinseki, the Court stated that the scope of § 4.59 is not limited to arthritis claims. 25 Vet. App. 1, 5 (2011). When painful motion is present the minimum compensable rating for the joint should be assigned. Sowers v. McDonald, 27 Vet. App. 472, 479-81 (2016). The Board also notes that during this appeal, VA promulgated new regulations for the evaluation of musculoskeletal disabilities effective February 2, 2021. See 85 Fed. Reg. 76,453-76,469 (November 30, 2020). Because the amendments have a specified effective date without provision for retroactive application, they may not be applied before the effective date. As of that effective date, the Board must apply whichever version of the rating criteria is more favorable to the Veteran. 38 U.S.C. § 5110(g); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Here, the new regulations do not impact the Veteran’s case as to a higher rating for her left hip and thigh conditions. Diagnostic Code 5250 provides for rating the hip based on ankylosis, and Diagnostic Code 5251 provides a 10 percent disability rating for limitation of extension of the thigh that is limited to 5 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5250, 5251. Diagnostic Code 5252 provides ratings based on limitation of flexion of the thigh. A 10 percent disability rating is for flexion of the thigh that is limited to 45 degrees; a 20 percent rating is for flexion of the thigh that is limited to 30 degrees; a 30 percent rating is for flexion of the thigh that is limited to 20 degrees; and a 40 percent rating is for flexion of the thigh that is limited to 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5251. Diagnostic Code 5253 provides ratings based on impairment of the thigh. Where adduction is limited such that the Veteran cannot cross legs, a 10 percent rating is warranted. Where rotation is limited such that the Veteran cannot toe-out more than 15 degrees of the affected leg, a 10 percent rating is warranted. Where abduction is lost beyond 10 degrees, a 20 percent rating is warranted. Diagnostic Code 5254 provides that for a flail joint of the hip, an 80 percent rating is warranted. For VA purposes, normal range of the hip is from 0 degrees of extension to 125 degrees of flexion, and hip abduction from 0 degrees to 45 degrees. See 38 C.F.R. § 4.71a, Plate II. Although evidence suggests painful motion, periods the Veteran has difficulty walking due to pain, and use of a cane, as explained below, the Veteran does not warrant a higher rating. Here, the Veteran was assigned at least compensable limitation of motion for flexion. As a result, she already receives at least a 10 percent disability rating for painful motion as contemplated by Sowers. Even during repetitive use and flare-ups, the Veteran does not exhibit limitation of flexion to 45 degrees, limitation of extension to 5 degrees, abduction lost beyond 10 degrees, adduction limited such that she cannot cross legs, or rotation limited such that she cannot toe-out more than 15 degrees. See December 2014 and September 2019 VA examination report range of motion findings. As such, the Veteran is not entitled to a higher rating. Additionally, the Veteran did not have left hip ankylosis, flail left hip joint, or femur impairment to warrant separate ratings under Diagnostic Codes 5250, 5254, and 5255. Overall, medical evidence suggests the Veteran is still able to ambulate. The evidence does not suggest, and the Veteran does not contend, that she is unable to move or have complete limitation of motion in her left hip. As such, the claim is denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Zheng, 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.