Citation Nr: 21027099 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 16-33 429 DATE: May 4, 2021 ORDER A disability rating in excess of 10 percent for a right hip disability is denied. A disability rating in excess of 10 percent for a left hip disability is denied. FINDINGS OF FACT 1. The Veteran served on active duty from August 2004 to August 2012. 2. The Veteran's bilateral hip disabilities are manifested by subjective complaints of pain and fatigue; objective evidence reflects, at worst, extension limited to 5 degrees in the right hip and 10 degrees in the left hip. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for a right hip disability have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5250-5255. 2. The criteria for a disability rating in excess of 10 percent for a left hip disability have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DCs 5250-5255. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This matter comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). This appeal was previously denied by the Board in December 2018. The Veteran appealed these findings to the U.S. Court of Appeals for Veterans Claims (Court), and a Joint Motion for Remand (JMR) was issued in November 2019. The Board then remanded the appeal for additional development in April 2020. It has now been returned for further appellate action. There has been substantial compliance with the remand directives, and there is no bar to proceeding with the appeal. Claim for Increased Ratings The Veteran claims that higher disability ratings should be assigned for his bilateral hip disability. Ten percent ratings have been assigned for disability in each hip. Law and regulations 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 illnesses proportionate to the severity of the several grades of disability. 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 Veteran asserts that his bilateral hip disabilities are worse than contemplated by the currently assigned rating criteria. For the entire period on appeal, his disabilities have been rated as 10 percent disabling in each hip under 38 C.F.R. § 4.71a. In order to warrant a rating in excess of 10 percent, the medical evidence must show: Flexion limited to 30 degrees (20 percent under DC 5252); Limitation of abduction with motion lost beyond 10 degrees (20 percent under DC 5253); Flail hip joint (80 percent under DC 5254); Malunion of the femur with moderate knee or hip disability (20 percent under DC 5255). Ankylosis under DC 5250. With respect to DC 5255, during the pendency of the appeal, the rating criteria (including DC 5255) for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised Diagnostic Codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110 (g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110 (g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021, and the criteria that is more favorable to the Veteran will be applied. Under the revised rating criteria for DC 5255 effective February 7, 2021, impairment of the femur warrants a 60 percent for fracture of the shaft or anatomical neck with nonunion, without loose motion, weightbearing preserved with aid of brace; and the highest rating of 80 percent is warranted for fracture of shaft or anatomical neck with nonunion, with loose motion (spiral or oblique fracture). Malunion is to be evaluated under DCs 5256, 5257, 5260, or 5261 for the knee, or 5250-5254 for the hip, whichever results in the highest evaluation. Evidence and analysis The evidence in this matter consists of lay statements, VA treatment records, and VA examination reports. At a December 2011 VA examination, range of motion measurements revealed left flexion to 110 degrees and right flexion to 100 degrees. Left extension was at 10 degrees and right extension was to 5 degrees. Left abduction was at 45 degrees, and right abduction was to 40 degrees. No measurements were noted for adduction, but the Veteran was noted to be able to cross both of his lefts and toe-out in excess of 15 degrees. At a May 2016 VA examination, the Veteran's left and right hip flexion was noted to 110 degrees; left and right extension were to 10 degrees. Left abduction was noted to 20 degrees, with right abduction to 30 degrees. Left adduction was at 15 degrees and right adduction was to 20 degrees. Once again, the Veteran was noted to be able to cross both of his legs and toe-out in excess of 15 degrees. Pain was noted on movement, but he was not found to have flare-ups or functional loss of the high or thigh. Range of motion measurements revealed left flexion to 75 degrees and right flexion to 85 degrees at a May 2017 VA examination. Left extension was to 25 degrees and right extension was to 30 degrees. Left abduction was to 25 degrees and right abduction was to 20 degrees. Again, he was noted to be able to cross both legs and toe-out in excess of 15 degrees. He reported pain and it was noted on movement and as well as flare-ups and functional loss in both hips. There was no additional loss of motion or function on repetitive use testing in either hip. At the most recent June 2020 VA examination, the Veteran reported lateral hip and groin pain, which he treated with Tylenol, Motrin, and prior physical therapy without relief. He denied any flare-ups of the hip or thigh but was noted to have functional loss in the form of difficulty bending forward and limited flexibility. Initial range of motion testing revealed flexion to 90 degrees in the right hip and to 80 degrees in the left hip. Extension was to 20 degrees bilaterally, with abduction to 30 degrees bilaterally, and adduction to 20 degrees bilaterally. Pain was noted on examination causing functional loss in the form of extended periods of sitting and walking. There was evidence of pain with weightbearing and crepitus; however, there was no additional loss of range of motion upon repetitive use testing and no additional functional loss. While the Veteran was not tested with repetitive use over time, pain and fatigue were noted to cause functional loss. The examiner explained the functional loss as manifesting in terms of range of motion with measurements showing flexion to 90 degrees in the left hip, and 80 degrees in the right hip, extension to 20 degrees bilaterally, abduction to 30 degrees bilaterally, and adduction to 20 degrees bilaterally. The examiner found that the Veteran's descriptions of pain and fatigue were consistent medically with flare-up symptoms, but that pain, weakness, and fatigability did not significantly limit functional ability with flare-ups. There were no other factors listed contributing to disability and muscle strength testing was normal. There was no ankylosis, or malunion or nonunion of the femur, flail hip joint, or leg length discrepancy. The examiner also noted that there was objective evidence of pain on non-weight bearing, and that passive range of motion for both hips were the same as active range of motion testing. At the outset, the Board notes that there is no evidence to indicate the Veteran has ever experienced ankylosis of either hip or flail joint, as such, separate ratings under DC 5250 (for ankylosis) or DC 5254 (for hip flail joint) are not warranted. Additionally, the Veteran's bilateral hip disabilities have not manifested functional impairment to the extent that a compensable rating is warranted under DC 5253. The record does not show evidence of functional impairment including symptoms such as adduction being unable to cross legs, abduction motion lost beyond 10 degrees, or limitation of rotation such as cannot "toe-out" more than 15 degrees in the affected leg. 38 C.F.R. § 4.71a, DC 5253. The range of motion (ROM) testing performed during the period on appeal documents that the Veteran's bilateral hip disabilities have manifested flexion limited, at its lowest, to 75 and 85 degrees, even when considering additional functional loss after repeated use and during flare-ups. Such a level of functional impairment is contemplated by a noncompensable percent rating. 38 C.F.R. § 4.71a, DC 5252. With respect to limitation of extension, he has manifested a compensable limitation of extension under DC 5251 since undergoing ROM testing during the 2011 VA examination in terms of ROM as limiting right thigh extension to 5 degrees, and left hip to 10 degrees, at worst, even though it has since improved. Therefore, a 10 percent rating for limitation of bilateral thigh extension is warranted as assigned and will remain undisturbed for these purposes. With respect to whether a rating in excess of 10 percent is warranted under DC 5255, the Board first finds that application of the rating criteria in effect for DC 5255 prior to February 7, 2021 is most beneficial to the Veteran. The revised rating criteria in effect from February 7, 2021 offers only a minimum 60 percent rating for the bilateral hips where there is a fracture of the shaft or anatomical neck with nonunion, without loose motion, weightbearing preserved with aid of brace is demonstrated. 38 C.F.R. § 4.71a, DC 5255. Because the evidence does not demonstrate that the Veteran's bilateral hip disabilities have ever been characterized by these symptoms, a higher rating under either set of criteria of DC 5255 would not be warranted. Additionally, while VA and private treatment records were reviewed, there was no indication that symptomatology worse or differing from those discussed above were found to warrant a higher rating at any point during the appeal period. The Board has also considered the Veteran's lay statements that his disabilities are worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of these disorders according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's bilateral hip disabilities has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which these disabilities are evaluated. Moreover, as the examiners have the requisite medical expertise to render a medical opinion regarding the degree of impairment caused by the disabilities and had sufficient facts and data on which to base their conclusions, the Board affords the medical opinions great probative value. As such, the examination reports are more probative than the Veteran's subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable, and the appeals are denied. C. J. McEntee Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Yacoub, 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.