Citation Nr: 21032003 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 14-44 094 DATE: May 25, 2021 ORDER From February 8, 2011, restoration of a 10 percent rating for limitation of extension, right hip, under Diagnostic Code 5251, is granted. From February 8, 2011, restoration of a 10 percent rating for limitation of extension, left hip, under Diagnostic Code 5251, is granted. From February 8, 2011, entitlement to a rating greater than 10 percent for limitation of extension, right hip, under Diagnostic Code 5251, is denied. From February 8, 2011, entitlement to a rating greater than 10 percent for limitation of extension, left hip, under Diagnostic Code 5251, is denied. REMANDED From June 22, 2018 to August 17, 2020, entitlement to a rating greater than 0 percent for limitation flexion, right hip, under Diagnostic Code 5252, is remanded. From August 18, 2020, entitlement to a rating greater than 10 percent for limitation flexion, right hip, under Diagnostic Code 5252, is remanded. From February 8, 2011, entitlement to a rating greater than 10 percent for limitation of adduction, right hip, under Diagnostic Code 5253, is remanded. From June 22, 2018 to August 17, 2020, entitlement to a rating greater than 0 percent for limitation flexion, left hip, under Diagnostic Code 5252, is remanded. From August 18, 2020, entitlement to a rating greater than 10 percent for limitation flexion, left hip, under Diagnostic Code 5252, is remanded. From February 8, 2011, entitlement to a rating greater than 10 percent for limitation of adduction, left hip, under Diagnostic Code 5253, is remanded. Entitlement to a total disability based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The AOJ erred by purporting to service connect a right hip disorder based upon limitation of extension in December 2018. 2. The AOJ erred by purporting to service connect a left hip disorder based upon limitation of extension in December 2018. 3. From February 8, 2011, the Veteran is receiving the maximum schedular rating for a right hip disorder based upon limitation of extension. Moreover, neither the Veteran nor the record raise the issue of an extraschedular rating. 4. From February 8, 2011, the Veteran is receiving the maximum schedular rating for a left hip disorder based upon limitation of extension. Moreover, neither the Veteran nor the record raise the issue of an extraschedular rating. CONCLUSIONS OF LAW 1. From February 8, 2011, the criteria for restoration of a 10 percent rating for a right hip disorder based on limitation of extension have been met. 38 U.S.C. § 5112; 38 C.F.R. §§ 3.105, 4.71a, Diagnostic Code 5251. 2. From February 8, 2011, the criteria for restoration of a 10 percent rating for a left hip disorder based on limitation of extension have been met. 38 U.S.C. § 5112; 38 C.F.R. §§ 3.105, 4.71a, Diagnostic Code 5251. 3. From February 8, 2011, the criteria for a rating greater than 10 percent for a right hip disorder based on limitation of extension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5251. 4. From February 8, 2011, the criteria for a rating greater than 10 percent for a left hip disorder based on limitation of extension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5251. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1984 to February 1987 and from September 1987 to March 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). The procedural history of this appeal is extensive, so the Board will recount it. In a May 2013 rating decision, the AOJ granted service connection for a bilateral hip disorder, effective February 9, 2011. It rated the disabilities as 10 percent disabling based on limitation of extension under Diagnostic Code 5251. In March 2014, the Veteran submitted a Notice of Disagreement (NOD) with the AOJ's decision. In the NOD, the Veteran appealed all "areas of disagreement," checking the boxes for service connection, effective date of award, evaluation of disability, and other. In April 2015, the AOJ proposed to sever service connection for the bilateral hip disorder. In April 2015, the AOJ also issued a Statement of the Case (SOC). In it, the AOJ, in relevant part, adjudicated "continued entitlement to compensation" for the bilateral hip disorder. Practically, the AOJ adopted its proposal to sever service connection for the bilateral hip disorder in the SOC in addition to the separate proposal to sever. In a July 2015 rating decision, the AOJ severed service connection for the bilateral hip disorder, effective October 1, 2015. In September 2015, the Veteran submitted an NOD with the July 2015 rating decision. In April 2016, the Board addressed these issues for the first time. In the Remand section of the decision, the Board found that the AOJ had not issued an SOC for the propriety of the severance of the bilateral hip disorder. It also found that the Veteran had appealed the effective dates and initial ratings the AOJ assigned for the bilateral hip disorder. However, the AOJ had not issued an SOC on those four issues. It also noted that the four issues were intertwined with the severance issues. It therefore ordered the AOJ to issue an SOC for six hip-related issues, three for each side of the body (propriety of severance, effective date of service connection, and initial rating). In June 2017, the AOJ corrected a clear and unmistakable error in the effective date for service connection for the bilateral hip disorder, finding service connection with a 10 percent evaluation should have been granted February 8, 2011; and it severed service connection effective October 1, 2015. In June 2017, the AOJ issued an SOC for the propriety of the severance of service connection for the bilateral hip disorder. In June 2017, the AOJ also issued an SOC for the effective date of service connection and initial rating appeals for the bilateral hip disorder. In April 2018, the appeal returned to the Board. The Board reversed the AOJ, restoring service connection for the bilateral hip disorder. It also denied an effective date earlier than February 8, 2011 for the grant of service connection for a bilateral hip disorder. It also remanded the initial rating appeal because: the prior examinations regarding the Veteran's service-connected bilateral hip disability are inadequate to make an informed decision on his appeal of the initial ratings assigned for each hip because they do not comply with the recent U.S. Court of Appeals for Veterans Claims decisions in Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). Thus, a new VA hip examination is necessary to fulfill the duty to assist and comply with the most current case law. In June 2018, VA examined the Veteran for his bilateral hip disorder. In December 2018, the AOJ: 1) Service connected a right hip disorder based on limitation of flexion, effective June 22, 2018. It rated the disability as 0 percent disabling under Diagnostic Code 5252. 2) Service connected a right hip disorder based on limitation of adduction, effective February 8, 2011. It rated the disability as 10 percent disabling under Diagnostic Code 5253. 3) Service connected a left hip disorder based on limitation of flexion, effective June 22, 2018. It rated the disability as 0 percent disabling under Diagnostic Code 5252. 4) Service connected a left hip disorder based on limitation of adduction, effective February 8, 2011. It rated the disability as 10 percent disabling under Diagnostic Code 5253. The AOJ, despite its grant in May 2013, its severance in July 2015, and the Board's restoration in April 2018, in the same rating decision, also purported to service connect a right hip disorder based on limitation of extension, effective February 8, 2011, and a left hip disorder based on limitation of extension, effective February 8, 2011. It purported to rate these disabilities as 0 percent disabling under Diagnostic Code 5251. The Board highlights this because the hip disabilities based on limitation of extension, prior to this decision, were rated as 10 percent disabling. In June 2019, the appeal returned to the Board. The Board, without acknowledging the December 2018 rating decision, remanded an appeal of "an initial rating in excess of 10 percent" for the bilateral hip disorder finding: In its April 2018 remand, the Board included instructions for the Veteran to be provided with a VA examination to determine the nature and severity of his service-connected right and left hip disabilities that complied with holdings in Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). Specifically, the Board directives stated that stating the requisite findings could not be provided without resorting to speculation because the Veteran was not experiencing a flare-up at the time of the examination would be deemed an inadequate reason for failing to provide the estimate of additional degrees of limitation of motion. Nevertheless, the VA examiner who conducted the Veteran's June 2018 VA examination found that, while the Veteran experienced flare-ups of his hip disabilities, measurements of any additional limitation of motion during these flare-ups could not be provided without resorting to mere speculation, since the examination was not performed immediately after repetitive use over time. She found that there was no empiric basis for providing measurements without objective physical examination but noted that the Veteran had provided lay evidence of "limiting factors." As this opinion does not comply with the instructions set out in the Board's remand, the Veteran should be provided with another VA examination to obtain this information In July 2019, VA examined the Veteran for his bilateral hip disorder. In March 2020, the appeal returned to the Board. The Board remanded the initial rating appeal finding: In its June 2019 remand, the Board found that a June 2018 VA examination was inadequate because it did not adhere to the holdings in Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). The June 2018 examiner found that, while the Veteran experienced flare-ups of his hip disabilities, measurements of any additional limitation of motion during these flare-ups could not be provided without resorting to mere speculation, since the examination was not performed immediately after repetitive use over time. The examiner failed to provide the estimate of additional degrees of limitation of motion after repetitive use over time or during a flare-up. As such, the Veteran was provided with another VA examination in July 2019; however, the examiner did not indicate whether range of motion measurements were taken in weight bearing. In addition, with regard to range of motion measurements after repetitive use over time and during a flare-up, the examiner stated that, following further review of the Veteran's records and giving consideration to their subjective complaints and objective examination findings, given her clinical knowledge and medical expertise, there remained no rational basis to make a notation regarding any additional losses of function or motion in these circumstances. Explain why she could not provide an estimation of additional limitation of motion in these circumstances. If an examiner cannot provide a specific range of motion measurement without speculation, there must be a determination as to whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). As such, the Board finds that the Veteran should be provided with another examination in order to determine the current nature and severity of his service-connected right and left hip disabilities. In August 2020, VA, through Veterans Evaluation Services (VES), examined the Veteran for his bilateral hip disorder. In January 2021, VA, through QTC, examined the Veteran for his bilateral hip disorder. Issue 1: From February 8, 2011, entitlement to a rating greater than 0 percent for limitation of extension, right hip, under Diagnostic Code 5251 Issue 2: From February 8, 2011, entitlement to a rating greater than 0 percent for limitation of extension, left hip, under Diagnostic Code 5251 As noted above, the Board restored service connection for the bilateral hip disorder in an April 2018 decision. The AOJ, in turn, implemented the Board's decision later that month. The AOJ, as it did it the May 2013 rating decision on appeal, found the bilateral hip disorder manifested as limitation of extension. According to the April 2018 rating decision and its accompanying codesheet, the AOJ set February 8, 2011 as the effective date of the grant of service connection, and it assigned a 10 percent rating for each hip under Diagnostic Code 5251. Despite this, the AOJ, in a December 2018 rating decision, purported to grant service connection for limitation of extension. To complicate matters further, the AOJ changed the rating for limitation of extension from 10 percent to 0 percent, bilaterally, effective February 8, 2011. This is where the Veteran's rating for limitation of extension has stood since the December 2018 rating decision. It is unclear to the Board why the AOJ attempted to service connect a disability in December 2018 for which, pursuant to the Board's April 2018 decision, it had re-established service connection a mere eight months prior. This decision had no legal effect. Therefore, the corresponding 0 percent rating likewise had no effect. Accordingly, the Board is ordering the AOJ to re-establish the 10 percent rating created in the April 2018 rating decision for each hip. Issue 3: From February 8, 2011, entitlement to a rating greater than 10 percent for limitation of extension, right hip, under Diagnostic Code 5251 Issue 4: From February 8, 2011, entitlement to a rating greater than 10 percent for limitation of extension, left hip, under Diagnostic Code 5251 Increased Ratings 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. Examination reports are to be interpreted considering the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, where the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (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. The law allows for an effective date up to one year prior to the date of receipt of a claim, sometimes informally called "the one-year lookback period." 38 C.F.R. § 3.400(o)(2). Specifically, if an increase in disability level was "factually ascertainable" within one year prior to receipt of the increased rating claim, then the effective date will be the date on which that increase is shown to have occurred. Merits As noted above, VA service connected the Veteran's bilateral hip disorder in May 2013. The Board also recounted the history of this disability and the present appeal in depth above. As relevant here, the AOJ, pursuant to VA General Counsel Opinion 9-2004, service connected separate evaluations for this disorder under limitation of flexion and limitation of adduction. The Board will address these separate evaluations below, and it will focus on the limitation of extension here. The provisions of 38 C.F.R. § 4.71a, Diagnostic Codes (DC) 5250 to 5255 provide the criteria for rating hip and thigh disabilities. Full hip range of motion is defined as 0 to 125 degrees in hip flexion, 0 to 30 degrees in hip extension, and 0 to 25 degrees in hip adduction. See 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5251 provides a single rating 10 percent for extension limited to 5 degrees. By virtue of the Board's action above, the Veteran has received a 10 percent rating since February 8, 2011, the effective date of service connection for this disability. Neither the Veteran nor his representative has raised the issue of an extraschedular rating, nor has the record reasonably raised it. Therefore, the Board will not address it. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Based on the foregoing, the Board will deny a rating greater than 10 percent for the bilateral hip disorder based upon limitation of extension. REASONS FOR REMAND Adduction and Flexion As noted above, VA, through VES, examined the Veteran on August 18, 2020. The examination report, in relevant part, states: Bilateral Hip Strain - There is no documented evidence of right or left hip osteoarthritis. The last hip films done in 2014 were normal. The C&P examination in 2014 did not diagnosis osteoarthritis. Furthermore, there is no evidence in the service treatment records documenting any hip injuries or treatments for hip pain (right or left). Bilateral hip films were ordered for this Veteran in conjunction with this C&P. He failed to show up for the x-rays initially and on rescheduled appointments. Also, the original service-connected diagnosis includes language such as "adduction, flexion, extension" in conjunction with arthritis which makes no medical logic or sense. Given the lack of radiologic evidence of arthritis with normal bilateral hip films documented in 2014, no available x-ray imaging for this examination, and examination physical findings consistent with bilateral hip strain, the correct and current diagnosis for this Veteran's bilateral hip condition should be bilateral hip strain. As mentioned, there is no evidence that any hip injuries or treatment for hip pain occurred while in-service in the available service treatment records. Forty-nine days later, on October 6, 2020, the Veteran called the Veterans Health Administration (VHA). He stated, as recorded in a VA treatment record from that same day and uploaded into his claims file on December 7, 2020: Veteran called stating VA Evaluation Services were needing a copy of his recent X-rays for increase in disability rating. Veteran also requesting a return call from RNCM to discuss a number of issues. Several points are unclear to the Board. First, there is no indication in the claims file that the Veteran had testing scheduled in conjunction with his examination other than on August 18, 2020. Thus, the examiner's report of the Veteran's "fail[ure] to show up for the x-rays initially and on rescheduled appointments" is puzzling. Second, given the AOJ's order of diagnostic testing, the Board does not understand why the AOJ did not provide the requested files to the examiner or reschedule an additional test for the Veteran. Third, it is not apparent whether the VHA staff member who took the October 6, 2020 call did anything with the information the Veteran provided, to include communicating with the AOJ. Considering these facts, the Board finds an addendum opinion from the August 18, 2020 examiner, or similarly qualified medical professional, is necessary to determine if the lack of diagnostic testing was limited to the diagnosis or if it had larger implications. This will assist the Board as it weighs the probative weight of this examination report. To be clear, the Board will not order a new examination because VA, through QTC, examined the Veteran in January 2021. This examination, according to the report, included diagnostic testing. TDIU In the August 2020 examination report, the examiner noted the bilateral hip disorder impacted his employment through "difficulty walking more than a block, standing for prolonged periods of time, [and] no stair or ladder climbing." An October 7, 2020 VA social work treatment assessment record uploaded on December 7, 2020, states: Interventions: SW contacted Vet by phone to provide support and assess needs. Vet went into great detail cursing his frustration over being let go after 14 years of employment driving a truck. Reports he can no longer do the type of work due to back pain and wants PT closer to him. SW informed him that RN notified provider for CC PT. Vet also wanting to try a chiropractor, educated on chiro through WH and provided with contact number. SW inquired on filing unemployment, reports that he got locked out and spent 3 hours on hold. SW provided education on Voc Rehab services and provided number. Reports no other needs or concerns at this time. In the January 2021 examination report, the examiner noted the bilateral hip disorder impacted his employment because "bilateral hip pain and decreased ROM decreases pt to perform many physical activities such as sitting, standing or walking for any distance. Bending or squatting increases pain." Considering these reports and the fact that the AOJ service connected the bilateral hip disorder secondary to the Veteran's back disorder, the Board finds the evidence has raised possible entitlement to a TDIU as part and parcel of the increased rating claims on appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009). A TDIU application is not in the file, so remand is warranted for the AOJ to provide it to the Veteran. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the medical professional who examined the Veteran on August 18, 2020 for his bilateral hip disorder. If that person is not available, obtain an opinion from a similarly qualified medical professional. Ask the examiner to provide the following: a) On what dates did the Veteran "fail to show up for the x-rays initially and on rescheduled appointments," as noted in the exam reports? b) Did you receive any diagnostic testing from VA after filing your examination report? If yes, when? c) If you did not receive any diagnostic testing from VA subsequent to filing your examination report, did the lack of diagnostic testing as of the filing of your report impact anything beyond what you believe to be the proper diagnosis of the Veteran's disability? Put another way, did the lack of diagnostic testing impact any testing conducted or any part of your report other than the diagnosis section? If yes, why? If no, why not? 2. Send the Veteran a TDIU application and any other customary information based on him raising TDIU as noted above. 3. If the Veteran responds to Directive #2, undertake any additional development deemed necessary. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Sopko, 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.