Citation Nr: 21032762 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 16-10 802 DATE: May 27, 2021 ORDER Entitlement to a disability evaluation in excess of 10 percent for a left hip labral tear is denied. FINDING OF FACT Throughout the appeal period, the Veteran's left hip condition was manifested by limitation of extension to no worse than 5 degrees, with limitation of flexion no worse than 85 degrees, even when considering additional functional loss due to flareups or with repetitive use of the joint over time; and there has been no showing of limitation of abduction approaching 10 degrees, an inability to cross his left leg, or the inability to toe out more than 15 degrees, even during flareups or with repetitive use of the left hip over time. CONCLUSION OF LAW The criteria for entitlement to a disability evaluation in excess of 10 percent for a left hip labral tear have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7, 4.130, Diagnostic Codes (DCs) 5251, 5252, 5253. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 2007 to June 2010. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a Board hearing in February, 2019. The transcript is of record. The matter was previously before the Board in September 2019, at which time it was remanded for development. It has been returned to the Board for appellate review. The claimant has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to a disability evaluation in excess of 10 percent for a left hip labral tear Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. While the Veteran's entire history is reviewed when making a disability determination, where service connection has already been established and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When an evaluation of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable Diagnostic Code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Moreover, with respect to musculoskeletal disabilities, the law recognizes that "[p]ainful motion is an important factor of disability, and it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint." See 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). The Veteran seeks a higher evaluation for his service-connected left hip condition. The Veteran is currently in receipt of a 10 percent evaluation, which is the minimal rating available for the joint, based on painful motion of the hip, per Burton. 38 C.F.R. § 4.59. Under Diagnostic Code 5251, a maximum 10 percent rating is assigned for hip extension limited to 5 degrees. 38 C.F.R. § 4.71a. Under Diagnostic Code 5252, a 10 percent rating is assigned for hip flexion limited to 45 degrees. 38 C.F.R. § 4.71a. A 20 percent rating is assigned for hip flexion limited to 30 degrees. A 30 percent rating is assigned for hip flexion limited to 20 degrees. A maximum 40 percent rating is assigned for hip flexion limited to 10 degrees. Id. Under Diagnostic Code 5253, a 10 percent rating is assigned for thigh impairment with limitation of rotation (cannot toe-out more than 15 degrees for the affected leg); or for thigh impairment with limitation of adduction (cannot cross legs). 38 C.F.R. § 4.71a. A 20 percent rating is assigned for thigh impairment with limitation of abduction when motion is lost beyond 10 degrees. Id. The Board notes that while portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021; however, Diagnostic Codes 5251, 5252, and 5253 were not changed. The Board also notes that the record in this case has never reflected ankylosis at the hip joint, nor flail joint at the hip or impairment of the femur including fracture of the shaft or anatomical neck, or malunion with the hip, and accordingly, the provisions governing those conditions need not be addressed. 38 C.F.R. § 4,71a, Diagnostic Codes 5250, 5254, 5255. The medical record in this case includes VA examination reports and VA and private treatment records, and reflects symptoms affecting the left hip including lost range of motion, pain on use, flareups characterized with additional lost range of motion, pain with weight bearing, and crepitus in the left hip. At an August 2015 VA examination, testing of the Veteran's left hip range of motion revealed flexion to 85 degrees; extension to 15; abduction to 25; adduction to 20; external rotation to 25; and internal rotation to 25, with pain on testing, and no loss of range of motion with multiple bouts of testing. The Veteran did not have pain with weight bearing, and demonstrated full strength in the musculature surrounding the left hip, with no ankylosis. The examiner did not opine as to additional functional loss during flareups or with repetitive use of the joint over time, but indicated that the Veteran's condition served to "limit[] walking, [and] squatting." A second VA examination was conducted in August 2020. Left hip range of motion testing showed flexion to 105 degrees; extension to 5; abduction to 25; adduction to 15, external rotation to 45; and internal rotation to 30, with pain on testing, pain with weight bearing, crepitus, and tenderness to palpation, but no additional loss of range of motion with multiple bouts of testing. The examiner opined that with repetitive use, the Veteran would be expected to lose approximately 0 to 5 degrees in all tested ranges of motion during flareups or with repetitive use of the joint. Again, the Veteran displayed full muscle strength around the hip, with no atrophy. The examiner opined that the Veteran's condition would limit his capacity to stand for prolonged periods, and limit his mobility. The Veteran reported using a cane most of the time to assist with mobility. The Board finds the medical evidence developed by these VA examinations to be in general accord with the balance of the medical evidence of record. Most importantly, treatment records do not reflect a greater degree of restriction in range of motion of the left hip in any tested maneuver. A review of this evidence convinces the Board that a rating in excess of the already-assigned 10 percent is unwarranted for any portion of the period herein on appeal. While the most recent VA examination shows compensable loss of range of motion for the first time, specifically in the limitation of hip extension to 5 degrees, that degree of limitation is associated with the already-assigned 10 percent rating, which constitutes the maximum rating available for limitation of hip extension. Further, the Veteran does not demonstrate loss of range of motion in hip flexion that approaches the degree required for a compensable evaluation under DC 5252, nor a degree of loss in abduction, adduction or rotation, as is required for a compensable evaluation under DC 5253. Whereas the Veteran's 10 percent evaluation was initially assigned based on painful motion of the hip joint, that provision affords a Veteran entitlement to the minimum rating for a given joint where loss of range of motion is noncompensable. See 38 C.F.R. § 4.59. As the Board finds the Veteran's loss of hip extension rises to a level associated with a 10 percent evaluation, that provision is no longer applicable. In sum, the record supports a 10 percent evaluation for the Veteran's left hip condition based on limited extension, but no higher rating is warranted under any DC associated with the hip or thigh. With regard to additional compensation for functional loss, the 2020 examiner noted that even with repetitive use or during flare-ups his hip motion would not be reduced such that it would meet the criteria for a 20 percent rating for limitation of motion. The Veteran has reported pain on standing and walking and using a cane to assist with both, however, the Board finds that his pain is compensated in the assigned 10 percent rating and thus, additional compensation is not warranted. 38 C.F.R. §§ 4.40, 4.45, 4.59. Accordingly, the appeal for a rating greater than 10 percent for a left hip disability is denied. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Sahraie, 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.