Citation Nr: 21032634 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 16-07 574 DATE: May 27, 2021 ORDER Entitlement to an initial evaluation in excess of 10 percent for degenerative arthritis, right hip, with limitation of flexion is denied. Entitlement to an initial evaluation in excess of 10 percent for degenerative arthritis, left hip, with limitation of flexion is denied. Entitlement to an initial compensable evaluation for degenerative arthritis, right hip, with limitation of extension is denied. Entitlement to an initial compensable evaluation for degenerative arthritis, left hip, with limitation of extension is denied. Entitlement to an initial compensable evaluation for degenerative arthritis, right hip, with limitation of abduction is denied. Entitlement to an initial compensable evaluation for degenerative arthritis, left hip, with limitation of abduction is denied. REMANDED Entitlement to an evaluation in excess of 10 percent for chondromalacia patella with internal derangement of torn medical meniscus and arthritis, status post arthroscopic surgery, left knee is remanded. Entitlement to an initial evaluation in excess of 10 percent for right knee arthritis is remanded. FINDINGS OF FACT 1. The Veteran's degenerative arthritis, right hip, manifests with painful motion. Right thigh limitation of flexion is greater than 45 degrees. 2. The Veteran's degenerative arthritis, left hip, manifests with painful motion. Left thigh limitation of flexion is greater than 45 degrees. 3. Right thigh limitation of extension is greater than 5 degrees. 4. Left thigh limitation of extension is greater than 5 degrees. 5. Right thigh impairment does not prevent the Veteran from crossing his legs, and there was no limitation of abduction with motion lost beyond 10 degrees or limitation of rotation with an inability to toe-out more than 15 degrees. 6. Left thigh impairment does not prevent the Veteran from crossing his legs, and there was no limitation of abduction with motion lost beyond 10 degrees or limitation of rotation with an inability to toe-out more than 15 degrees. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 10 percent for degenerative arthritis, right hip, with limitation of flexion have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.14.7, 4.59, 4.71a, Diagnostic Codes 5252. 2. The criteria for an initial evaluation in excess of 10 percent for degenerative arthritis, left hip, with limitation of flexion have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.14.7, 4.59, 4.71a, Diagnostic Codes 5252. 3. The criteria for an initial compensable evaluation for degenerative arthritis, right hip, with limitation of extension have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.14.7, 4.59, 4.71a, Diagnostic Codes 5251. 4. The criteria for an initial compensable evaluation for degenerative arthritis, left hip, with limitation of extension have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.14.7, 4.59, 4.71a, Diagnostic Codes 5251. 5. The criteria for an initial compensable evaluation for degenerative arthritis, right hip, with limitation of abduction have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.14.7, 4.59, 4.71a, Diagnostic Codes 5253. 6. The criteria for an initial compensable evaluation for degenerative arthritis, left hip, with limitation of abduction have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.14.7, 4.59, 4.71a, Diagnostic Codes 5253. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1986 to July 1991. This matter was previously remanded by the Board in October 2018 and June 2020 for evidentiary development. Increased Rating 1. Entitlement to an initial evaluation in excess of 10 percent for degenerative arthritis, right hip, with limitation of flexion 2. Entitlement to an initial evaluation in excess of 10 percent for degenerative arthritis, left hip, with limitation of flexion 3. Entitlement to an initial compensable evaluation for degenerative arthritis, right hip, with limitation of extension 4. Entitlement to an initial compensable evaluation for degenerative arthritis, left hip, with limitation of extension 5. Entitlement to an initial compensable evaluation for degenerative arthritis, right hip, with limitation of abduction 6. Entitlement to an initial compensable evaluation for degenerative arthritis, left hip, with limitation of abduction Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4. The ratings are intended to compensate impairment in earning capacity due to a service-connected disease or injury. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). As explained below, the current uniform evaluations are appropriate. The Veteran's degenerative arthritis of the right hip is evaluated as 10 percent disabling under Diagnostic Code 5003-5252 for limitation of flexion, effective February 5, 2013. It is evaluated as noncompensable under Diagnostic Code 5003-5251 for limitation of extension, and as noncompensable under Diagnostic Code 5003-5253 for limitation of abduction, effective February 13, 2012. The Veteran has challenged each initial evaluation for degenerative arthritis of the right hip. The Veteran's degenerative arthritis of the left hip is evaluated as 10 percent disabling under Diagnostic Code 5003-5252 for limitation of flexion, effective February 5, 2013. It is evaluated as noncompensable under Diagnostic Code 5003-5251 for limitation of extension, and as noncompensable under Diagnostic Code 5003-5253 for limitation of abduction, effective February 13, 2012. The Veteran has challenged each initial evaluation for degenerative arthritis of the left hip. During the pendency of the appeal, the rating criteria 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 select 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. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, the diagnostic codes in use here (5251, 5252, and 5253) were not changed. Specific to the hip joint, Diagnostic Code 5054 (resurfacing or replacement (prosthesis)) and Diagnostic Code 5255 (impairment of femur) were amended. However, there is no medical evidence that the Veteran has undergone hip resurfacing or replacement, or that he has impairment of the femur. The medical evidence of record is sufficient to properly adjudicate the Veteran's increased rating claims specific to the service-connected hip disorders. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.445 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Nonetheless, even when the background factors listed in § 4.40 or § 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016). In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Under Diagnostic Code 5251 (limitation of extension of the thigh), a 10 percent evaluation is assigned with extension limited to 5 degrees. 38 C.F.R. § 4.71a. Under Diagnostic Code 5252 (limitation of flexion of the thigh), a 10 percent evaluation is assigned with flexion limited to 45 degrees. A 20 percent evaluation is assigned with flexion limited to 30 degrees. A 30 percent evaluation is assigned with flexion limited to 20 degrees. A 40 percent evaluation is assigned with flexion limited to 10 degrees. 38 C.F.R. § 4.71a. Under Diagnostic Code 5253 (impairment of thigh), a 10 percent rating is warranted for limitation of adduction, cannot cross legs, or limitation of rotation, cannot toe-out more than 15 degrees, affected leg. A 20 percent evaluation is warranted for thigh impairment of limitation of abduction, motion lost beyond 10 degrees. In this matter, Diagnostic Codes 5251-5253 are the only potentially applicable Diagnostic Codes. Copeland v. McDonald, 27 Vet. App. 333 (2015). The evidence does not show hip prosthesis, ankylosis, flail joint, or impairment of the femur. The Veteran was afforded a February 2013 VA examination. Range of motion for the right hip/thigh was 110 degrees flexion with pain at 110 degrees, extension greater than 5 degrees with no pain, and abduction not lost beyond 10 degrees. The Veteran could cross his legs and rotation was not limited such that the Veteran could not toe-out more than 15 degrees. Range of motion for the left hip/thigh was 110 degrees flexion with pain at 90 degrees, extension greater than 5 degrees with no pain, and abduction not lost beyond 10 degrees. The Veteran could cross his legs and rotation was not limited such that the Veteran could not toe-out more than 15 degrees. Repetitive use testing was performed but it did not result in additional limitation of motion. There was functional loss in the form of less movement than normal, pain on movement, disturbance of locomotion, and interference with sitting, standing, and or weight-bearing. There was bilateral objective evidence of localized tenderness or pain on palpation. Muscle strength was 5/5 on flexion, extension, and abduction bilaterally. There was not ankylosis, malunion or nonunion of femur, flail hip joint, or leg length discrepancy. An April 2013 addendum examination report was provided to include specific range of motion results for hip abduction, adduction, internal rotation, and external rotation. Right hip abduction was 30 degrees, adduction 20 degrees, internal rotation 25 degrees, and external rotation 30 degrees. Left hip abduction was 40 degrees, adduction 25 degrees, internal rotation 35 degrees, and external rotation 45 degrees. There was not additional limitation of motion with repetition. Pursuant to the Board's October 2018 Remand, the Veteran was afforded a November 2019 VA examination. However, in its June 2020 Remand, the Board found this examination to be inadequate for rating purposes. As such, it is of minimum probative value. However, some findings are still relevant, including the Veteran's reports of bilateral flare-ups of moderate to severe intensity. Muscle strength was 5/5 on flexion, extension, and abduction. There was no muscle atrophy and no indication that crutches were required. There was not ankylosis, malunion or nonunion of femur, flail hip joint, or leg length discrepancy. The Veteran was afforded a September 2020 VA examination. The Veteran specifically denied flare-ups. Range of motion for the right hip/thigh was 125 degrees flexion, 30 degrees extension, 45 degrees abduction, 25 degrees adduction, 40 degrees internal rotation, and 60 degrees external rotation. The Veteran could cross his legs. There was no pain noted upon examination, including upon weight bearing. Range of motion for the left hip/thigh was 125 degrees flexion, 30 degrees extension, 45 degrees abduction, 25 degrees adduction, 40 degrees internal rotation, and 60 degrees external rotation. The Veteran could cross his legs. There was no pain noted upon examination, including upon weight bearing. Repetitive use testing was performed but it did not result in additional limitation of motion for either hip/thigh. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time. There were no additional contributing factors of disability. Muscle strength was 5/5 on flexion, extension, and abduction bilaterally. There was not ankylosis, malunion or nonunion of femur, flail hip joint, or leg length discrepancy. After a review of the medical and lay evidence, the current evaluations for the right and left hips are appropriate. In other words, an evaluation in excess of 10 percent is not warranted for either hip under Diagnostic Code 5252 and compensable evaluations are not warranted for either hip under Diagnostic Code 5251 or 5253 at any time during the period on appeal. While there is pain and some limitation of motion, neither hip is limited to flexion of 45 degrees, extension of 5 degrees, motion lost beyond 10 degrees abduction, inability to cross the legs, or rotation preventing toe-out more than 15 degrees. The Board also considered whether higher ratings under Diagnostic Codes 5251, 5252, or 5253 might be appropriate based on the DeLuca factors. Upon examination, there was no additional loss of function from pain, weakness, lack of endurance, or incoordination noted during repetitive motion testing or during flare-ups. The Veteran specifically denied flare-ups at his most recent examination. He did report flareups at his November 2019 examination. The Board accepts the Veteran's competent and credible lay statements regarding flare-ups. His current rating encompasses pain on movement. The regulations establish that there should be stabilization of ratings. 38 C.F.R. § 3.344. Infrequent changes in impairment do not warrant a change in the evaluation. While the Veteran has reported flare-ups at one VA examination, a review of the entirety of the period on appeal suggests that flare-ups have been infrequent and do not amount to impairment consistent with increased ratings under the circumstances. The Board is unable to identify any findings that would warrant an increased evaluation under 38 C.F.R. § 4.40 and 4.45. Notwithstanding these factors, the Veteran maintained bilateral flexion well over 100 degrees, extension notably better than limitation to 5 degrees, and abduction, adduction, and rotation inconsistent with a higher rating. The current disabilities are contemplated by a 10 percent rating for painful motion per 38 C.F.R. § 4.59. There is not further limitation that would warrant an evaluation in excess of 10 percent for either hip/thigh or a separate compensable rating for either hip/thigh. Thus, the award of a higher disability rating or ratings is not warranted. The preponderance of the evidence is against a higher rating under any relevant diagnostic codes. The preponderance of the evidence is against a higher or separate evaluation for either hip disability. The claims must be denied. REASONS FOR REMAND 1. Entitlement to an evaluation in excess of 10 percent for chondromalacia patella with internal derangement of torn medical meniscus and arthritis, status post arthroscopic surgery, left knee is remanded. 2. Entitlement to an initial evaluation in excess of 10 percent for right knee arthritis is remanded. As noted above, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). The Veteran's left knee chondromalacia patella with internal derangement of torn medical meniscus and arthritis is currently rated under Diagnostic Code 5257, which now provides an evaluation for patellar instability. The most recent September 2020 VA examination does not reference patellar instability or indicate that the Veteran has been prescribed a brace, cane, or walker for this condition. However, a July 2020 VA treatment note reports that the Veteran was issued a cane for his knee pain. Given the potential implications of the new rating criteria for this disorder, a new examination is warranted to properly adjudicate the claim considering the new criteria of Diagnostic Code 5257. With respect to the Veteran's right knee arthritis, the Board notes that it is currently evaluated under Diagnostic Code 5260. While the criteria for this Diagnostic Code have not changed, the new examination ordered by this Remand will result in findings relevant to the disability rating for the right knee. As a result, adjudication should be deferred. The matters are REMANDED for the following action: 1. Afford the Veteran an appropriate VA examination to determine the current severity of his knee disabilities. The examination report should document findings consistent with amended diagnostic codes for evaluating musculoskeletal disabilities. With respect to range of motion testing, this must be conducted on active and passive motion and in weight-bearing and nonweight-bearing conditions (pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016)). If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. R. Stephens, 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.