Citation Nr: 21027869 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 17-05 860 DATE: May 7, 2021 ORDER Entitlement to a rating higher than 10 percent for right hip impairment is denied. Entitlement to a compensable rating for limitation of right hip extension is denied. Entitlement to a compensable rating for limitation of right hip flexion prior to November 11, 2020; and higher than 10 percent from such date is denied. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's right hip impairment has not been manifested by limitation of abduction limited to 10 degrees. 2. Throughout the appeal period, the Veteran's right hip impairment has not been manifested by limitation of extension limited to 5 degrees. 3. Prior to November 11, 2020, the Veteran's right hip impairment has not been manifested by limitation of flexion limited to 45 degrees. 4. From November 11, 2020, the Veteran's right hip impairment has not been manifested by limitation of flexion limited to 30 degrees. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 10 percent for impairment of the right hip have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code (Code) 5253. 2. The criteria for a compensable rating for limitation of right hip extension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Code 5251. 3. The criteria for a compensable rating for limitation of right hip flexion prior to November 11, 2020; and higher than 10 percent from such date have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Code 5252. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from May 2010 to September 2013. These matters are before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ). During the hearing the Veteran indicated that his attorney was withdrawing his representation. The VLJ informed the Veteran that written confirmation would be beneficial. Upon review of the file, there is nothing written from the attorney or the Veteran. Moreover, the attorney is still of record representing the Veteran in other matters. As such, the Board recognizes the Veteran's representative on the Title page of this decision. In September 2020, these matters were remanded for further development. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. The Board determines the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Id. The United States Court of Appeals for Veterans Claims (Court) has held that staged ratings are appropriate for initial rating and increased rating claims when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings will be considered below and discussed as warranted. When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness which causes additional disability beyond that reflected on range of motion measurements must be considered. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Consideration must also be given to weakened movement, excess fatigability, and incoordination. 38 C.F.R. § 4.45. Additionally, evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. 38 C.F.R. § 4.14. However, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. Id.; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). 38 C.F.R. § 4.59 recognizes that painful motion is an important factor of disability. Joints that are painful, unstable, or misaligned, due to healed injury, are entitled to at least the minimum compensable rating for the joint. Id. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Id; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that § 4.59 applies to all forms of painful motion of joints, and not just to arthritis). Pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011) (holding that pain alone does not constitute function loss and is just one fact to be considered when evaluating functional impairment). When all the evidence is assembled, the Board 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 preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to a rating higher than 10 percent for right hip impairment 2. Entitlement to a compensable rating for limitation of right hip extension 3. Entitlement to a compensable rating for limitation of right hip flexion prior to November 11, 2020; and higher than 10 percent from such date There are several Codes that pertain to the individual planes of motion of the hip joint, rather than the hip as a whole. Thigh motion is affected by the hip joint. Limitation of motion of the thigh is evaluated under Codes 5251 (extension), 5252 (flexion), and 5253 (abduction, adduction, rotation). 38 C.F.R. § 4.71a. Normal flexion of the hip is to 125 degrees, normal extension is to 0 degrees, and normal abduction is to 45 degrees. Id., Plate II. The Veteran has several ratings for his right hip disability. He has a 0 percent evaluation under Code 5252 for painful motion based on hip flexion beyond 45 degrees prior to November 11, 2020; and a 10 percent evaluation from such date based on hip flexion at 40 degrees. Under this Code thigh flexion limited to 45 degrees is 10 percent disabling; 30 degrees is 20 percent disabling; and limited to 20 degrees is 30 percent disabling. A maximum rating of 40 percent is reserved for when flexion is limited to 10 degrees. 38 C.F.R. § 4.71a. As here, where the schedule does not provide for a 0 percent rating, such an evaluation will be assigned when the requirements for a compensable evaluation have not been met. 38 C.F.R. § 4.31. The Veteran's right hip disability has a separate 10 percent evaluation under Code 5253 for painful motion. A maximum rating of 20 percent requires limitation of abduction with motion lost beyond 10 degrees. Id. The Veteran's limited extension of the right hip is also evaluated as noncompensable under Code 5251, where extension of the thigh limited to 5 degrees warrants a maximum 10 percent rating. Id. Again, as here, where the schedule does not provide for a 0 percent rating, such an evaluation will be assigned when the requirements for a compensable evaluation have not been met. 38 C.F.R. § 4.31. During May 2013 VA examination, impairment of the right hip was diagnosed. Flare ups in the right hip were described as increased pain. The Veteran described functional lows or functional impairment as unable to move without pain. Range of motion revealed right hip flexion to 90 degrees with pain. Right hip extension limited to 5 degrees. The abduction is not lost beyond 10 degrees; adduction is not limited such that the Veteran cannot cross his legs. Rotation is not limited such that the Veteran cannot toe-out more than 15 degrees. The examiner noted the Veteran reported pain with any range of motion, passive or active, of the right hip. He also reports pain with any intensity of palpation of his right hip. The Veteran had excellent muscle tone, occasionally ambulates with a cane, and was able to remove his shoes independently prior to this exam. During November 2020 VA examination, the Veteran reports excruciating pain. He indicates it feels as if his right hip is going to come off his body. The frequency is once or twice a year and the pain is rated 9/10 with a 3-day duration. Functional impairment includes difficulty with prolonged walking, standing, sitting, climbing stairs, bending, and lifting. Right hip range of motion reveals flexion to 40 degrees; extension to 15 degrees; abduction to 20 degrees; adduction to 15 degrees; external rotation to 40 degrees; and internal rotation to 20 degrees. The Veteran was able to perform repetitive testing for at least three repetitions without any additional loss of function after three repetitions. Range of motion repeated over time revealed flexion to 35 degrees; extension to 10 degrees; abduction to 15 degrees; adduction to 10 degrees. Post-test adduction is limited such that the Veteran is unable to cross his legs. External rotation is to 35 degrees and internal rotation is to 20 degrees. Based on this evidence, the criteria for higher ratings for the Veteran's right hip disability are not met. The Veteran has excellent muscle tone, is steadily ambulatory with a cane. The Veteran has appreciable loss of thigh motion, however, even with complaints of pain, the evidence does not show the Veteran exhibits limitation of flexion (to 45 degrees prior to November 11, 2020 and to 30 degrees since November 11, 2020) or extension (to 5 degrees) sufficient to warrant 10 percent evaluations under Codes 5252 or 5251, respectively; or from November 11, 2020 a 20 percent evaluation Under Code 5252. 38 C.F.R. § 4.71a. The Board also finds that the criteria for a higher rating are not met for impairment of the right hip under Code 5253. There is no evidence of rotation limited to the point that abduction is lost beyond 10 degrees, as would warrant the next higher evaluation of 20 percent. Although, the Veteran reports that activity is the precipitating factor for increased pain, there is no evidence to suggest that repetitive use or flare-ups would limit motion to the extent that the right hip would be more than 10 percent disabling under the limitation-of-motion codes. Further, the Veteran has been fully ambulatory and able to take care of his activities of daily living. Although his complaints have been taken into consideration, there is no evidence that his right hip disability suffers significant or additional functional loss beyond that contemplated by the assigned evaluations. See 38 C.F.R. § 4.71, Codes 5250-5255; 38 C.F.R. §§ 4.40, 4.45, 4.59. The Board also finds that no other Codes pertaining to the right hip would provide any higher disability evaluation. There is no evidence of hip flail joint, or malunion of the femur as contemplated by Codes 5254, and 5455. 38 C.F.R. § 4.71a. Further, there is no evidence of ankylosis such that a higher rating would be warranted under Code 5250. Accordingly, there is no basis for a higher rating. A preponderance of the evidence is against the claim, and there is no reasonable doubt to be resolved. 38 U.S.C. § 5107 (b). H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. McPhaull, 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.