Citation Nr: 21031864 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 16-30 919 DATE: May 24, 2021 ORDER Entitlement to an increased rating for a left hip disability, status-post total hip replacement, presently rated as 30 percent disabling prior to September 20, 2019, and 70 percent disabling thereafter, is denied. FINDINGS OF FACT 1. Prior to September 20, 2019, the Veteran's residuals of a total left hip replacement did not rise to the level of "moderately severe;" his primary residual was painful movement, and he was regularly able to engage in physical activities such as bowling and playing golf. 2. From September 20, 2019, the Veteran's residuals of a total left hip replacement have not been so severe as to require use of crutches. CONCLUSIONS OF LAW 1. Prior to September 20, 2019, the criteria for a rating in excess of 30 percent for residual of a total left hip replacement have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5054. 2. From September 20, 2019, the criteria for a rating in excess of 70 percent for residual of a total left hip replacement have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5054. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1986 to November 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). During the pendency of this appeal, the Veteran was granted a 70 percent rating for residuals of a total hip replacement, effective September 20, 2019. As that did not constitute a maximum grant for the issue on appeal for any period, the Board has updated the issue on appeal to reflect the staged ratings now for consideration. As a matter of procedural background, this issue previously came before the Board in January 2019, at which time this issue was remanded for further development. It is now returned to the Board. At the time of the prior remand, the Board also issued a decision which, among other things, denied claims pertaining to the ratings for posttraumatic stress disorder (PTSD) and a low back disability, and service connection of sleep apnea. The Veteran appealed those denials to the United States Court of Appeals for Veterans Claims (Court), and in February 2020, the Court granted a Joint Motion for Partial Remand, vacating those appeals and returning them to the Board for further appellate review. In January 2021, the Board issued a decision/remand with regard to those issues, granting the increased rating claim for PTSD, and remanding the low back and sleep apnea claims for further development. Although the ordered development of those remaining two claims have been completed, and a supplemental statement of the case issued in late April 2021, those issues have not officially been returned to the Board at this time. Therefore, the Board will limit this decision to the increased rating for the hip, and will address the low back and sleep apnea claims at a later date. Increased Rating Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where, as in the case of the issue on appeal in this matter, 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). Consideration of the medical evidence since the date of the claim for increase and consideration of the appropriateness of staged ratings are required. See Fenderson v. West, 12 Vet. App. 119 (1999). "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 required for that rating. Otherwise, the lower rating will be assigned." 38 C.F.R. § 4.7. 1. Entitlement to an increased rating for a left hip disability, status-post total hip replacement The Veteran's left hip, status-post total hip replacement, is presently rated as 30 percent disabling from July 1, 2015, to September 20, 2019, and 70 percent disabling thereafter. He seeks higher ratings. Initially, the Board notes that the Veteran filed his claim for an increased rating in April 2015. Prior to July 2015, the Veteran was in receipt of a 100 percent temporary total rating due to convalescence following the implantation of his total hip prosthesis. As this constitutes a maximum rating prior to July 1, 2015, that period is not for consideration in this decision. The Veteran's left hip, status-post total hip replacement is rated under Diagnostic Code (DC) 5054, which compensates specifically for prosthetic hip replacements. Under the applicable diagnostic criteria, following the one year total rating for the implantation itself, a 30 percent rating is assigned as a basic minimum rating. When residuals are "moderately severe," of weakness, pain or limitation of motion, a 50 percent rating is warranted. "Markedly severe" residuals of weakness, pain or limitation of motion are assigned a 70 percent rating. Finally, a 90 percent rating is assigned when painful motion and weakness are present such as to require the use of crutches. 38 C.F.R. § 4.71a, DC 5054. Terms such as "mild," "moderate," "moderately severe, and "markedly severe" are not defined by the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. A disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40 With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of "the normal working movements of the body," such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40 ); see also DeLuca v. Brown, 8 Vet. App. 202, 206-207 (1995) The Veteran was initially afforded a VA examination in August 2015. At that time, the Veteran reported difficulty bearing weight on the left hip and feeling as though he had a leg-length discrepancy, although no such discrepancy was noted on examination. Flare ups consisted of increased pain with prolonged walking. Flexion was limited to 55 degrees. Extension was normal. Abduction was limited to 40 degrees and adduction limited to 15 degrees. He was able to cross his legs. He was unable to perform either external or internal rotation. Pain was noted on examination, but did not caused functional loss. Pain was noted on flexion, abduction and adduction. There was evidence of pain with weight bearing. There was no pain on palpation of the soft tissue or evidence of crepitus. There was no additional loss of function or range of motion after repetitive testing, and the examination was neither medically consistent nor inconsistent with the Veteran's reports of pain during a flare up. Strength was normal. He showed no signs of diagnosed or functional ankylosis. He did not have a leg length discrepancy. He used a cane to ambulate. Functionally, the examiner stated that he had difficulty with prolonged walking and climbing stairs due to pain. Although the surgery was noted, the examiner declined to state the severity of the residuals of the surgery. An addendum to that examination in December 2015 found residuals of left hip surgery resulted in pain with weightbearing. Private treatment records, and VA treatment records throughout the claims period indicate that the Veteran was able to engage in regular activities that involved use of his hip. For example, private rehabilitation records following a 2013 ankle surgery, indicated that in May 2015 the Veteran denied any pain in his hip following his surgery, and was able to walk greater than one mile on a track. He also reported that he had the most difficulty with exercise, performing yard work, and walking in general when on uneven grass terrain. At that time his strength was 4+/5 bilaterally in the hips, indicating greater than movement against some resistance. In December 2016, during a VA psychiatric consult, he reported being regularly active in a bowling league. Psychiatric consultation notes from July 10, 2018, indicate that the Veteran continued to engage in regular bowling and had started playing golf that year. He also stated that he walked two miles per day, six days per week. In February 2019, he again endorsed playing golf and bowling regularly. Based on this evidence, the Board finds that prior to September 20, 2019, the criteria for a rating in excess of 30 percent have not been met. Although the Veteran clearly experienced residuals following his total hip replacement surgery, to include painful movement and less movement than usual, he was still able to use his hip. In fact, physical therapy records indicated a generally good result with some difficulty walking on uneven surfaces. Despite his pain and weakness, he was able to engage in regular physical activities that require significant use of the hips such as golfing and bowling. There is no indication prior to September 2019, that these activities were limited by his hip replacement. While the examiner in 2015 declined to opine on the actual severity of the Veteran's residuals following his surgery, a complete description of the Veteran's residuals was included, to include the Veteran's own reports of pain on movement. The addendum opinion merely clarified that the Veteran has some pain with movement, but did not rise to any type of severe level. At most, there was evidence of pain on movement. As such, the Board does not find that his residuals manifested to a level of being "moderately severe," and a rating in excess of 30 percent under the diagnostic criteria is not supported. In September 2019, the Veteran was again afforded a VA examination. At that time, the Veteran stated he cannot do many very physical activities due to limitation after his joint replacement. He stated that he could not cross his leg, and his left leg was getting weaker, making it harder to exercise. Flares occurred weekly with weather changes for a day and required him getting off his feet. He stated that he could not run, squat, and must limit standing to 10-15 minutes, and sitting to about one hour. He could not walk longer than 16 minutes. Flexion was limited to 40 degrees, extension was limited to 5 degrees. Abduction was limited to 20 degrees and adduction limited to 10 degrees. External and internal rotation were both limited to 10 degrees. Pain was noted on all planes of movement and pain was present with weight bearing. There was anterior left hip tenderness on palpation and evidence of crepitus. No additional loss was found on repetitive use testing. The examination was neither consistent nor inconsistent with the Veteran's reports of limitation during periods of flare. Strength showed active movement against some resistance (4/5). He did not have diagnosed or functional evidence of ankylosis. A leg length discrepancy of 4 cm was noted. The examiner opined that his residuals were markedly severe in nature. He used a walker regularly and a cane constantly to ambulate. The examiner stated that, though he is limited in his ability to run, squat, stand, sit and walk, he was not precluded for limited physical duty or sedentary employment. In December 2019 he reported to a VA psychiatric provider that activities such as going to the gym, golfing and bowling were therapeutic for him. From the date of the September 2019 examination, the Veteran has been awarded a 70 percent rating for "markedly severe" residuals of a hip replacement. Based on the available evidence of record, the Board does not find that he meets the criteria for a 90 percent rating. Specifically, while he did endorse using a cane constantly, and a walker occasionally to regularly, there is no indication that the Veteran's hip has resulted in painful motion or weakness to such a degree as to require the use of crutches, which would take 100 percent of the weight off of his hip. While significant pain was reported in the 2019 examination, he did not show significant weakness in that hip. Even considering the Veteran's own lay statements regarding the severity of his hip, he has not shown such severe residuals as to require the use of crutches to ambulate. Further, psychiatric records from three months later indicated that the Veteran continued to engage in regular physical activities such as going to the gym, golf, and bowling these activities also indicate that the Veteran is at least able to place weight on the left hip, and therefore would not require the use of crutches. Therefore, the Board finds that a rating in excess of 70 percent is not warranted. In sum, the Board finds that prior to September 2019, the Veteran's residuals of a left hip replacement did not rise to the "moderately severe" level, and therefore, a rating in excess of 30 percent is not warranted. Likewise, following September 20, 2019, the Veteran has not shown painful motion or weakness that requires the use of crutches, and a rating in excess of 70 percent is not supported. As such, the claim is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Pryce, Counsel