Citation Nr: 21039958 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 16-44 950 DATE: July 1, 2021 ORDER From December 29, 2015, a 10 percent rating for degenerative joint disease (DJD) of the right hip with limitation of extension of the right thigh is granted. A rating higher than 10 percent for DJD of the right hip with limitation of extension of the right thigh is denied. From December 29, 2015 through October 31, 2019, a compensable rating for DJD of the right hip with limitation of flexion of the right thigh is denied. From November 1, 2019, through December 10, 2020, a rating in excess of 10 percent for DJD of the right hip with limitation of flexion of the right thigh is denied. From December 11, 2020, a 20 percent rating for DJD of the right hip with limitation of flexion of the right thigh is granted. A rating higher than 10 percent for DJD of the right hip with impairment of the right thigh is denied. REMANDED A total disability rating based on individual unemployability (TDIU). FINDINGS OF FACT 1. From December 29, 2015, the Veteran's DJD of the right hip is manifested by limitation of extension of the right thigh to 5 degrees. 2. From December 29, 2015 through October 31, 2019, the DJD of the right hip with limitation of flexion of the right thigh was manifested by limitation of flexion of the right thigh to greater than 45 degrees. 3. From November 1, 2019, though December 10, 2020, the DJD of the right hip with limitation of flexion of the right thigh was manifested by limitation of flexion of the right thigh to no greater than 45 degrees. 4. From December 10, 2020, the DJD of the right hip with limitation of flexion of the right thigh was manifested by limitation of flexion of the right thigh to 30 degrees. 5. The Veteran's DJD of the right hip with impairment of the right thigh is manifested by limitation of adduction; limitation of abduction with motion lost beyond 10 degrees is not shown. CONCLUSIONS OF LAW 1. The criteria for a 10 percent rating for DJD of the right hip with limitation of extension of the right thigh, from December 29, 2015, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5003-5251. 2. The criteria for a rating higher than 10 percent for DJD of the right hip with limitation of extension of the right thigh have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5003-5251. 3. From December 29, 2015, through October 31, 2019, a compensable rating for DJD of the right hip with limitation of flexion of the right thigh have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5003-5252. 4. From November 1, 2019, though December 10, 2020, a rating in excess of 10 percent for DJD of the right hip with limitation of flexion of the right thigh have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5003-5252. 5. The criteria for a 20 percent for rating for DJD of the right hip with limitation of flexion of the right thigh, from December 11, 2020, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5003-5252. 6. The criteria for a rating higher than 10 percent for DJD of the right hip with impairment of the right thigh are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5253. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1973 to September 1995. The case is on appeal from an April 2016 rating decision. In November 2018, the Board remanded the appeal for additional development. While in remand status, by a December 2020 rating decision, the RO granted higher 10 percent ratings for limitation of extension and flexion of the right thigh due to DJD of the right hip, effective November 1, 2019. As the increases did not satisfy the appeal in full, the issues remain on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). The Veteran asserts that he is unable to work due to his service-connected right hip disorder on appeal. See August 2020 VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). Thus, the issue of a TDIU is raised as part and parcel of the higher rating claim for his right hip disorder. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board notes that although a TDIU is being remanded for additional development, remand is not necessary for the right hip disability, as there is no reasonable possibility that further assistance would substantiate ratings higher than those the Board is granting in the decision below. See 38 C.F.R. § 3.159(d). Increased Rating The Veteran is seeking increased ratings for his right hip disability. He filed a claim for increase in December 2015, which begins the period of appellate review now before the Board (plus consideration of the one-year look back period prior to the filing of that claim). See Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. 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. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 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. § 4.45 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); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). 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; 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) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Staged ratings are appropriate whenever 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). Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the specific basis for the rating assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27. As of February 7, 2021, changes have been implemented to the musculoskeletal rating criteria. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. Id. Prior to the regulatory change, DC 5010 provides that arthritis, due to trauma and substantiated by x-ray findings, is rated as degenerative arthritis. See 38 C.F.R. § 4.71a. Degenerative arthritis is rated under DC 5003, which provides that degenerative arthritis, established by x-ray findings, is rated according to limitation of motion for the joint or joints involved. Id. The Board notes the only change to DC 5003 is a change in the title to the code, indicating that the criteria apply to all types of degenerative arthritis other than post-traumatic. The criteria applicable to musculoskeletal hip disorders (DCs 5251, 5252, 5253) were unchanged by the revised regulations effective February 7, 2021. Under DC 5251, a maximum 10 percent rating is warranted for extension of the thigh limited to 5 degrees. 38 C.F.R. § 4.71a, DC 5251. Under DC 5252, a 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 20 degrees. A maximum 40 percent rating is warranted for flexion limited to 10 degrees. 38 C.F.R. § 4.71a, DC 5252. Under DC 5253, a 10 percent rating is warranted for impairment of the thigh manifested by limitation of rotation of affected leg, such that one cannot toe out more than 15 degrees. A 10 percent rating is also warranted for limitation of adduction, such that one cannot cross the legs. A maximum 20 percent rating is warranted for limitation of abduction, such that motion is lost beyond 10 degrees. 38 C.F.R. § 4.71a, DC 5253. Normal range of motion of the hip is flexion to 125 degrees, extension to 30 degrees, adduction to 25 degrees, abduction to 45 degrees, external rotation to 60 degrees and internal rotation to 40 degrees. See 38 C.F.R. § 4.71, Plate II. Analysis 1. A compensable rating for DJD of the right hip with limitation of extension of the right thigh prior to November 1, 2019. 2. A rating higher than 10 percent for DJD of the right hip with limitation of extension of the right thigh. The Veteran's limitation of extension of the right thigh is rated under 38 C.F.R. § 4.71a, DC 5003-5251. DC 5003 is for rating degenerative arthritis, other than post-traumatic under the amended criteria, and hypertrophic or osteoarthritis under the old criteria. DC 5251 is for rating limitation of extension of the thigh. As reflected above, the Veteran is in receipt of the highest schedular rating for limitation of extension of the thigh, effective November 1, 2019. Thus, there is no basis to award a rating higher than 10 percent from that date. However, the Board finds that a compensable 10 percent rating is warranted from December 29, 2015, the date of the claim for increase. The 10 percent rating was assigned from November 2019 based on a VA examination conducted at that time. The VA examiner examination showed limitation of extension to 0 degrees. The evidence prior to that time indicates that this degree of severity manifested earlier than the November 2019 VA examination. In that respect, and although the March 2016 VA examination report reflects right hip/thigh extension to 10 degrees, the examination was not conducted during a flare-up. Further, VA treatment records in August 2016 reflect use of a cane and McKenzie extension was recommended. In addition, evidence associated with the claims file since the November 2018 Board remand includes VA treatment records in August 2019 reflecting increased chronic right hip pain and flare ups. Moreover, the December 2020 VA examination report notes that the right hip pain had progressed/worsened since its onset, and although right hip/thigh extension was to 10 degrees, the examination was not conducted during a flare up. In that respect, the Veteran stated that he was unable to get out of the recliner or stand for long during a flare up. In addition, the examiner noted that right hip pain was somewhat decreased on passive range of motion in all planes, resulting in improved performance in all planes, except extension. The Veteran is competent to report his symptoms, and in addition to having been a medic during service (see October 1995 DD Form 214), the December 2020 VA examiner reported that the Veteran is credible, noting no signs of symptom magnification. Overall, this evidence indicates that the 10 percent disability level for limitation of extension under DC 5251 was likely present throughout the appeal period. Although the Board is granting a 10 percent rating for limitation of extension of the right thigh prior to November 1, 2019, that is, from the December 29, 2015, claim for increase, the evidence does not show an increase of right thigh extension limited to 5 degrees during the one-year prior to the December 2015 claim. In sum, the Board finds the evidence supports a 10 percent rating prior to November 1, 2019, (effective the date of the December 29, 2015 claim) when resolving doubt in the Veteran's favor. The preponderance of the evidence is against a rating higher than 10 percent; the benefit of the doubt doctrine is not applicable; and a rating higher than 10 percent for DJD of the right hip with limitation of extension of the right thigh is therefore not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. A compensable rating for DJD of the right hip with limitation of flexion of the right thigh prior to November 1, 2019, and 10 percent thereafter. The Veteran is separately seeking an increased rating for limitation of flexion of the right thigh due to DJD of the right hip. The Veteran's limitation of flexion of the right thigh is rated under 38 C.F.R. § 4.71a, DC 5003-5252. DC 5003 is for rating degenerative arthritis, other than post-traumatic under the amended criteria, and hypertrophic or osteoarthritis under the old criteria. DC 5252 is for rating limitation of flexion of the thigh. At a March 2016 VA examiner, the Veteran had flexion to 110 degrees. VA treatment records in August 2016 reflect flare-ups of right hip pain and use of a cane. In addition, the evidence associated with the claims file since the November 2018 Board remand reflects increased chronic right hip pain and flare ups, noting imaging showed increased arthritic changes since 2015. See August 2019 CAPRI documents. However, at a private consultation in August 2019, it was found he had no limitation of motion. This evidence confirms painful flexion prior to November 1, 2019, with a noncompensable limitation of motion. He is separately assigned 10 percent ratings for limitation of motion of this joint. Without a compensable loss of flexion, a separate 10 percent rating is not assignable based on painful flexion as only a single 10 percent rating is assignable on that basis. See, e.g., Mitchell, 25 Vet. App. at 36. A disability rating higher than 10 percent is not warranted from November 2019 until December 2020. The November 2019 VA examination report reflects flexion to 90 degrees. The examination was not conducted during a flare-up, but the examiner estimated approximately 40 percent loss of motion of the right hip/thigh during flare ups. The Board observes that full flexion of the hip is to 125 degree. See 38 C.F.R. § 4.71, Plate II. A loss of 40 percent of that full motion would approximate flexion to 75 degrees. As this evidence does not show limitation of flexion to 45 degrees, the 10 percent disability level is not more nearly approximated. The December 2020 VA examination report reflects the condition had progressed/worsened. The examiner estimated flexion to be limited to 30 degrees after repeated use over time and during flare-ups, and pain with weight bearing, as well as tenderness in the hip joint, were noted. In view of the December 2020 VA examiner's report that, as a result of the Veteran's frequent flare-ups of right hip symptoms resulting in difficulty with standing or walking for more than 15 minutes once or twice a day, coupled with inability to lift, squat, or climb stairs, the Board finds that the Veteran's disability picture due to limitation of flexion of the right thigh more closely approximates the criteria for a 20 percent rating from December 11, 2020. Based upon the evidence in this case, the exact onset of the Veteran's 10 percent and 20 percent levels of disability cannot be determined with any certainty. The earliest that it can be factually ascertained that he met the criteria for a 10 percent rating was November 1, 2019, the date he was examined by VA. The earliest it can be factually ascertained that he met the criteria for the 20 percent rating is December 11, 2020, the date he was examined by VA. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015); accord Young v. McDonald, 766 F.3d 1348 (Fed. Cir. 2014); see also Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010) (discussing assignment of an effective date for a reduction in disability rating under DC 7528); VAOPGCPREC 12-98. Assignment of earlier dates for the 10 percent and 20 percent ratings would require unsupported speculation, which is not permissible. See 38 C.F.R. § 3.102. A higher or separate rating is not warranted under any other diagnostic code pertaining to the hip. The December 2020 VA examination report reflects that the Veteran's limitation of flexion of the right thigh due to DJD of the right hip is not manifested by ankylosis, hip flail joint, or femur impairment. As such, a higher rating is not warranted under any alternative diagnostic code. See 38 C.F.R. § 4.71a, DCs 5250, 5254, 5255. The examiner's finding is consistent with the other evidence. Although possible hip avascular necrosis was noted, the examiner stated that it would be unrelated to the service-connected degenerative arthritis of the right hip, adding that the symptoms of hip avascular necrosis are exactly the same as symptoms of hip degenerative arthritis. Further, a new diagnosis of trochanteric pain syndrome was noted to be due to right gluteal muscle spasm/guarding, which in turn was due to the Veteran's service-connected lumbar spine disability. See also December 2019 Medical Treatment Record Government Facility. The VA examiner added that trochanteric pain syndrome causes pain on the lateral hip, whereas avascular necrosis of the femoral head and degenerative arthritis of the acetabulum would both cause anterior hip joint pain. To the extent that a right sacroiliac joint occult injury was suspected at the time of the injury in 1985, x-ray examination was noted to be negative. In addition, the lumbosacral and sacroiliac joints should be considered as one anatomical segment for rating purposes. 38 C.F.R. § 4.66. In sum, the Board finds that the evidence supports a 20 percent rating for limitation of flexion of the right thigh due to DJD of the right hip from December 11, 2020. The claim is granted to this extent. Otherwise, any increased ratings are not warranted, and the appeal is denied to this extent. 4. A rating higher than 10 percent for DJD of the right hip with impairment of the right thigh. The Veteran is further seeking an increased rating for impairment of the right thigh due to DJD of the right hip. The Veteran's DJD of the right hip with impairment of the right thigh is rated under 38 C.F.R. § 4.71a, DC 5253. The 10 percent rating currently assigned contemplates limitation of adduction such that the Veteran cannot cross his legs. The maximum 20 percent rating under DC 5253 requires limitation of abduction with motion lost beyond 10 degrees. In that respect, the March 2016 VA examination report reflects right hip abduction to 20 degrees. Although the examiner noted that an opinion as to additional loss of motion on flare up would be speculative, muscle strength on abduction was 4/5. Moreover, the November 2019 VA examiner reported abduction to 45 degrees, and muscle strength was 5/5 for right hip abduction. Further, the December 2020 VA examiner reported active abduction to 25 degrees and passive abduction to 30 degrees. Although the examination was not conducted during a flare up, abduction was estimated to 15 degrees during flare up. In addition, muscle strength on right hip abduction was 5/5. He had adduction limited to 5 degrees such that the Veteran could not cross legs. The Veteran is competent to report his symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). In addition, and although the Veteran was a medic during service and his reports of symptoms and functional impairment are credible, the Board attributes greater probative value to the clinical findings which do not reflect limitation of abduction of the right thigh with motion lost beyond 10 degrees. As noted, the VA examiner estimated limitation of abduction to 15 degrees on flare ups and adduction limited to 5 degrees, but not lost motion beyond 10. As reflected above, separate ratings are assigned for limitation of extension and flexion of the right thigh under DCs 5251 and 5252. The Board finds no other available DC to afford the Veteran a rating higher than 10 percent for impairment of the right thigh. In sum, the preponderance of the evidence is against a rating higher than 10 percent for DJD of the right hip with impairment of the right thigh; the benefit of the doubt doctrine is not applicable; and a rating higher than 10 percent is not warranted. REASONS FOR REMAND A TDIU. As noted above, the issue of a TDIU is part and parcel of the increased rating claims addressed in the decision above. See December 2015 claim. At the time of the December 2020 rating decision denying a TDIU, the Veteran did not meet the schedular criteria for a TDIU. The Veteran is service-connected for (1) limitation of flexion of the right thigh; (2) limitation of extension of the right thigh; (3) impairment of the right thigh with degenerative arthritis of the right hip; (4) degenerative arthritis of the spine; (5) hypertension; (6) recurrent subluxation of the right knee; (7) DJD of the right knee; and (8) erectile dysfunction. The orthopedic disabilities affect a single body system, the orthopedic system, so are considered a single disability. 38 C.F.R. § 4.16(a), The December 2020 rating decision reflects a favorable finding that the Veteran was not employed. The Board notes that the sole fact that a veteran is unemployed or has difficulty obtaining employment is not sufficient to warrant an award of TDIU. A high rating, alone, is recognition that the impairment makes it difficult to obtain or keep employment. Thus, the ultimate question is whether the Veteran, in light of his service-connected disabilities, is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). In that respect, in his August 2020 VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability), the Veteran stated that he had been self-employed as an interior/exterior painter of houses and buildings until April 20, 2015, when he stopped working due to pain associated with his service-connected right hip and back disabilities, noting no earned income in the previous 12 months. Although the December 2020 VA examiner opined that, as a result of the right hip disability, the Veteran would likely be frequently absent from work due to flare ups of right hip pain, making even a sedentary job difficult to maintain, an August 2019 record reflects that the Veteran worked part-time at both a home improvement store and painting. See September & October 2020 Medical Treatment Record Non-Government Facility. Likewise, an August 2016 record reflects that the Veteran worked at a home improvement store and as a painter. See August 2016 CAPRI documents. The Veteran may not have understood the impact of his part-time employment on his TDIU eligibility. A TDIU presupposes a veteran is not capable of gainful employment, meaning work that is more than marginal employment. Ortiz-Valles v. McDonald, 28 Vet. App. 65, 72 (2016). The ability to work sporadically or obtain marginal employment is not substantially gainful employment. Moore v. Derwinski, 1 Vet. App. 356, 358-59 (1991). Marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist on facts found basis (including but not limited to employment in a protected environment such as a family business or sheltered workshop) when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Here, the evidence of record indicates that the Veteran may be engaged in gainful employment. It is not clear if his part-time work was a substantially gainful occupation or marginal employment. To verify his income and show it has been marginal in nature during the appeal period, he should submit earnings information since 2015. The matter is REMANDED for the following action: 1. Ask the Veteran to submit documents verifying his income for each year from December 2015 to the present, to include earnings from employment at the home improvement store and painting. All earned income from any source must be reported. 2. The AOJ should undertake whatever action is needed to verify the Veteran's earned income during the years he is claiming a TDIU. Corey Bosely Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Taylor 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.