Citation Nr: 21028942 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 15-12 371 DATE: May 12, 2021 ORDER An initial rating in excess of 10 percent for limitation of extension, left thigh is denied. An initial rating of 10 percent for limitation of flexion, left thigh is granted. An initial rating in excess of 20 percent rating a left hip disability (femoral neck fracture, status post open reduction, internal fixation, status post removal of hardware (formerly Diagnostic Code 5255) is denied. FINDINGS OF FACT 1. The Veteran's left thigh has demonstrated extension limited to 5 degrees. 2. The Veteran's left thigh has demonstrated flexion limited to at least 45 degrees. 3. The Veteran's left hip disability (femoral neck fracture, status post open reduction, internal fixation, status post removal of hardware) has demonstrated limitation of abduction such as motion lost beyond 10 degrees. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for left thigh, limitation of extension, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5251. 2. The criteria for a 10 percent rating for left thigh, limitation of flexion, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5252. 3. The criteria for a rating in excess of 20 percent rating for left hip disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5253. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1978 to October 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision issued by the Agency of Original Jurisdiction (AOJ). In May 2018, the Veteran testified at a Board hearing via videoconference before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. This matter was previously before the Board in February 2019 and most recently in December 2020 where it was remanded for additional evidentiary development. 1. Entitlement to an initial rating in excess of 10 percent for left thigh, limitation of extension. 2. Entitlement to an initial compensable rating for left thigh, limitation of flexion. 3. Entitlement to an initial rating in excess of 20 percent for left hip disability (femoral neck fracture, status post open reduction, internal fixation, status post removal of hardware (formerly Diagnostic Code 5255)). The Veteran asserts that his service-connected left thigh and left hip disabilities are more severe than his initial ratings indicate. The Veteran filed a claim for increased rating in March 2012. By rating action of June 2013, the AOJ assigned a separate 10 percent rating for left thigh based on limitation of extension under Diagnostic Code 5251, effective March 6, 2012; a separate noncompensable rating for left thigh based on limitation of flexion under Diagnostic Code 5252, effective March 6, 2012; and a separate 20 percent rating for left hip disability under Diagnostic Code 5253 (femoral neck fracture, status post open reduction, internal fixation, status post removal of hardware (formerly Diagnostic Code 5255)). While on remand, by rating action of February 2021, the AOJ granted service connection for leg length discrepancy status post left femoral neck fracture and assigned a noncompensable rating under Diagnostic Code 5275. Turning to the rating schedule, disabilities of the hip and thigh are rated under the schedular criteria found at 38 C.F.R. § 4.71a, Diagnostic Codes 5250 through 5255. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not changed. Diagnostic Code 5250 evaluates ankylosis of the hip. As there is no indication of ankylosis of the right hip, this diagnostic code is not applicable. Diagnostic Code 5251 evaluates limitation of extension. A 10 percent rating is assigned for extension limited to 5 degrees. Diagnostic Code 5252 evaluates limitation of flexion. A 10 percent rating is assigned for flexion limited to 45 degrees. A 20 percent rating is assigned for flexion limited to 30 degrees. A 30 percent rating is assigned for flexion limited to 20 degrees. A 40 percent rating is assigned for flexion limited to 10 degrees. Diagnostic Code 5253 evaluates an impairment of the thigh. A 10 percent rating is assigned for limitation of rotation to 15 degrees or limitation of adduction resulting in an inability to cross legs. A 20 percent rating is assigned for loss of abduction beyond 10 degrees. Diagnostic Code 5254 evaluates hip flail joint. As there is no indication of right hip flail joint, this diagnostic code is not applicable. Diagnostic Code 5255 evaluates an impairment of the femur. The medical evidence shows old healed left hip fracture, and as there is no indication of an impairment of the femur, this diagnostic code is not applicable. Normal ranges of motion of the hip are hip flexion from 0 degrees to 125 degrees, and hip abduction from 0 degrees to 45 degrees. 38 C.F.R. § 4.71a, Plate II. At a July 2012 VA contract examination, the Veteran demonstrated left hip flexion to 100 degrees (with evidence of pain beginning at 45 degrees) and extension to zero. The examiner indicated that abduction was lost beyond 10 degrees, adduction limited such that the Veteran could not cross his legs, and rotation was limited such that the Veteran could not toe-out more than 15 degrees. At an August 2017 VA contract examination, the Veteran demonstrated left hip flexion to 100 degrees, extension to 10 degrees, abduction to 35 degrees, adduction to 20 degrees, internal rotation to 20 degrees, and external rotation to 25 degrees. The examiner indicated status post open reduction and internal fixation of old healed left hip fracture. At a June 2018 VA examination, the reported flare-up of left hip with cold, damp weather changes. On range of motion testing, he demonstrated left hip flexion to 40 degrees, extension to 30 degrees, abduction to 45 degrees, adduction to 25 degrees, internal rotation to 10 degrees, and external rotation to 20 degrees. At an August 2018 VA contract examination, the Veteran reported pain with prolonged sitting. On range of motion testing, he demonstrated right hip flexion to 100 degrees, extension to 25, adduction to 20 degrees, abduction to 40 degrees, internal rotation to 40 degrees, and external rotation to 60 degrees. The examiner indicated that abduction was not lost beyond 10 degrees or adduction limited such that the Veteran could not cross his legs, and rotation was not limited such that the Veteran could not toe-out more than 15 degrees. He retained normal 5/5 strength. In compliance with the Board's December 2020 remand, the Veteran was afforded a VA examination in February 2021. He reported changes in weather, position, climbing stairs or ladders, or standing for long periods will exacerbate the pain in the area. On range of motion testing, he demonstrated left hip flexion to 60 degrees, extension to 5 degrees, abduction to 10 degrees, adduction to 5 degrees, external and internal rotation to 20 degrees, respectively. After evaluation and considering Veteran's statements on examination, the examiner stated, "range of motion does not seem to be further affected, rather, limitation in activity is based upon increased pain." The examiner indicated leg length discrepancy (shortening of any bones of the lower extremity) of left leg by 2.5 cm due to shortening from femur fracture. For the entire appeal period, the Board finds that a 10 percent rating for left thigh based on limitation of flexion is warranted under Diagnostic Code 5252. At his 2012 VA contract examination, although he had flexion to 100 degrees, there was objective evidence of pain beginning at 45 degrees. Also, at his 2018 VA contract examination, he demonstrated flexion limited to at least 45 degrees. Thus, a 10 percent rating under Diagnostic Code 5252 has been shown for left thigh, limitation of flexion. 38 C.F.R. § 4.71a, Diagnostic Code 5252. There are no other findings that would warrant a separate or higher rating under this diagnostic code. With respect to limitation of extension, the Board observes that the Veteran is currently in receipt of a 10 percent rating under Diagnostic Code 5251, which is the maximum evaluation under the criteria. In this regard, the Board finds that the Veteran is adequately compensated with the assigned maximum schedular rating and a higher rating is not possible under the criteria for limitation of extension. 38 C.F.R. § 4.71a, Diagnostic Code 5251. Likewise, regarding an impairment of the thigh, the Veteran is in receipt of a 20 percent evaluation, the highest rating available under Diagnostic Code 5253 for an impairment of the thigh. As such, is adequately compensated with the assigned maximum schedular rating and a higher rating is not possible under 38 C.F.R. § 4.71a, Diagnostic Code 5253. The Board has considered whether a higher disability rating is warranted under 38 C.F.R. § 4.40 for functional loss due to pain, and under 38 C.F.R. § 4.45 for functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint. DeLuca v. Brown, 8 Vet. App. 202 (1995). Here, the Board does not doubt that the Veteran's left thigh and hip disabilities cause symptoms of pain and increased pain with prolonged walking. However, even accounting for additional functional limitation due to such reports of pain, the examination reports summarized above reflect that the left hip disability has not been shown to produce additional impairment of abduction, extension due to pain or functional loss that would warrant a rating higher. In fact, the Board observes that the Veteran's reports of pain were directly considered in the AOJ's award of the maximum schedular ratings under Diagnostic Code 5251 and 5253. Moreover, Board's grant above for 10 percent rating under Diagnostic Code 5252 has contemplated additional functional limitation resulting from pain, painful motion, and limited motion. (Continued on the next page) Based on a review of the foregoing evidence and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for left thigh, limitation of extension, and a rating in excess of 20 percent for left hip disability. However, for the entire appeal period, a 10 percent rating for left thigh based on limitation of flexion is warranted. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. An, 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.