Citation Nr: 21040528 Decision Date: 07/05/21 Archive Date: 07/05/21 DOCKET NO. 11-05 788 DATE: July 5, 2021 ORDER For the appeal period prior to December 8, 2020, a rating in excess of 10 percent for degenerative joint disease (DJD) and bursitis of the right hip with limitation of adduction of the thigh is denied. Beginning December 8, 2020, a maximum10 percent for DJD and bursitis of the right hip with limitation of adduction of the thigh is granted. For the rating period prior to December 8, 2020, a maximum 10 percent rating for DJD and bursitis of the right hip with limitation of extension of the thigh is granted. Beginning December 8, 2020, a rating in excess of 10 percent for DJD and bursitis of the right hip with limitation of extension of the thigh is denied. For the entire rating period on appeal, a compensable rating for DJD and bursitis of the right hip with limitation of flexion of the thigh is denied. For the rating period prior to November 4, 2011, a 20 percent rating, but no higher, for sensory deficit of the sciatic nerve associated with the right hip disability is granted. Beginning November 4, 2011, a rating in excess of 20 percent for sensory deficit of the sciatic nerve associated with the right hip disability is denied. REMANDED Entitlement to service connection for type II diabetes mellitus is remanded. Entitlement to service connection for hypothyroidism is remanded. FINDINGS OF FACT 1. For the entire rating period on appeal (both prior to and beginning December 8, 2020), the Veteran's impairment of his right hip disability was manifested by adduction limited such that he could not cross his legs, but not by limitation of abduction lost beyond 10 degrees. 2. For the entire rating period on appeal (both prior to and beginning December 8, 2020), limitation of extension of the right thigh has been limited to 5 degrees. 3. Flexion of the right hip has been limited to greater than 45 degrees throughout the rating period on appeal. 4. For the entire period on appeal, the Veteran's sensory deficit associated with his right hip disability has been manifested by no worse than moderate incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. For the rating period prior to December 8, 2020, the criteria for a rating in excess of 10 percent for right hip DJD with bursitis with limitation of adduction, are not met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5253. 2. Beginning December 8, 2020, the criteria for a maximum 10 percent rating for right hip DJD with bursitis with limitation of adduction, are met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5253. 3. For the rating period prior to December 8, 2020, the criteria for a maximum 10 percent rating for right hip DJD with bursitis with limitation of extension of the thigh, are met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5251. 4. Beginning December 8, 2020, the criteria for a rating in excess of 10 percent rating for right hip DJD with bursitis with limitation of extension of the thigh, are not met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5251. 5. For the entire rating period on appeal, the criteria for a compensable rating for right hip limitation of flexion are not met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5252. 6. For the rating period prior to November 4, 2011, the criteria for a 20 percent rating, but no higher, for sensory deficit of the sciatic nerve associated with the right hip disability are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.123, 4.124, 4.124a, Diagnostic Code 8520. 7. Beginning November 4, 2011, the criteria for a rating in excess of 20 percent for sensory deficit of the sciatic nerve associated with the right hip disability are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.123, 4.124, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1973 to February 1977, and from March 1977 to October 1993. This case originally came before the Board of Veterans' Appeals (Board) on appeal from May 2010 and May 2013 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in August 2018. A copy of the hearing transcript is associated with the claims file. The issues on appeal were previously remanded by the Board in March 2019 and November 2020 for further development and the appeal has since returned for further appellate consideration. Increased Rating ClaimsLaws and Regulations Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). 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 C.F.R. § 4.3. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," in all claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). Effective February 7, 2021, VA's Schedule, 38 C.F.R. Part 4, was amended with regard to rating musculoskeletal disorders. Fed. Reg. 76453 (November 30, 2020) (codified at 38 C.F.R. § 4.71a). When 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. VAOPGCPREC 3-2000; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The revised musculoskeletal regulations do not provide for retroactive application; thus, the amendments may be applied as of, but not prior to, February 7, 2021. Hence, VA has made clear that its intent is that the claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. For applications filed on or after the effective date, only the new criteria will be applied. As the Veteran's claim was pending prior to February 7, 2021, the Board will consider entitlement under the prior regulations as well as the revised regulations beginning February 7, 2021, applying the most favorable criteria for the Veteran. The schedular criteria for evaluating disabilities of the musculoskeletal system, including the hip joint, have undergone revision during the pendency of this appeal. Specifically, and as relevant to this case, revisions to Diagnostic Code 5003 and 5010 were made effective February 7, 2021. See 85 Fed. Reg. 76460, 76457 (Feb 7, 2021). Prior to February 7, 2021, Diagnostic Code 5010, instructed the rater to rate traumatic arthritis as degenerative arthritis under Diagnostic Code 5003. Under the revised criteria, Diagnostic Code 5010 applies only to post-traumatic arthritis, which is to be rated as limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with § 4.25. Under both the earlier and revised rating criteria, degenerative arthritis is rated under Diagnostic Code 5003. Under this code, arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined and not added, under Diagnostic Code 5003. For purpose of rating disability from arthritis, the hip is considered a major joint. 38 C.F.R. § 4.45 (f). The changes effective February 7, 2021 under 38 C.F.R. § 4.71a, pertaining to hip disabilities only amended DC 5255 regarding impairment of the femur. The Veteran in this case has not been found to have any fracture, malunion, or nonunion of the femur. As such, the amended regulations pertaining to the hip are not for application in this case. Hip disabilities are rated under Diagnostic Codes 5250 to 5255. Diagnostic Code 5250, ankylosis of the hip is rated from 60 percent to 90 percent, depending on whether in favorable or unfavorable positions. Notably, ankylosis means the joint is fixed in place without ability to be moved at all. Under Diagnostic Code 5251, a 10 percent disability rating is warranted when extension of the thigh is limited to 5 degrees. Under Diagnostic Code 5252, a 10 percent disability rating is warranted when flexion of the thigh is limited to 45 degrees, and a 20 percent disability rating is warranted when flexion is limited to 30 degrees. For reference, normal range of motion of the hip is from 0 to 125 degrees, and normal abduction of the hip is from 0 to 45 degrees. 38 C.F.R. § 4.71a, Plate II. Under Diagnostic Code 5253, a 10 percent rating is warranted for limitation of rotation of the affected leg such that the leg cannot toe out more than 15 degrees. A 10 percent rating is also warranted for limitation of adduction such that the legs cannot be crossed. A maximum 20 percent rating is warranted for limitation of abduction such that motion is lost beyond 10 degrees. Diagnostic Codes 5254 and 5255 are appropriate when there is flail joint or impairment of the femur. However, as discussed above, the Veteran has not been found to have fracture, malunion, or nonunion of the femur. He has also not been diagnosed with a flail hip joint. As such, these Diagnostic Codes are not for application. Right Hip Adduction, Abduction, and Rotation The Veteran is currently in receipt of a 10 percent rating for right hip limitation of adduction from August 4, 2009 to December 7, 2020. He is in receipt of a noncompensable rating beginning December 8, 2020. Although a December 2020 VA hip examination indicated that adduction was only slightly limited to 20 degrees (normal is to 25 degrees), the examiner noted that the Veteran had pain with range of motion, to include during adduction. The examiner did not indicate at which degree the pain began. There was also pain on weight bearing. Further, September 2014 and January 2017 VA examination reports noted that adduction in the right hip was limited such that the Veteran could not cross his legs. The Board further notes that there is no indication that the Veteran's right hip disability has improved throughout the rating period on appeal. The Veteran continues to complain of pain with difficulty standing and walking for prolonged periods of time. See December 2020 VA examination report. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that a 10 percent rating is warranted for the appeal period beginning December 8, 2020. Pursuant to this decision, the Veteran is now in receipt of a maximum 10 percent rating for limitation of adduction for the entire rating period on appeal. As to the Veteran's right hip abduction, he is already in receipt of a 10 percent rating under Diagnostic Code 5253 because he is unable to cross his legs (adduction). However, a higher or separate rating in excess of 10 percent under DC 5253 is not warranted as the evidence does not show that the Veteran's right hip has resulted in limitation of abduction beyond 10 degrees. The September 2014 VA examiner specifically indicated that abduction was not lost beyond 10 degrees. The January 2017 and December 2020 VA examiners noted that abduction was limited to, at worst, 40 degrees. Additionally, the Board finds that a separate rating for limitation of rotation is not warranted as the Veteran's limitation of external rotation ("toe-out") has never been less than 30 degrees. See September 2014, January 2017, and December 2020 VA examinations (showing external rotation limited to, at worst, 30 degrees even after repetitive use testing). For these reasons, a rating in excess of 10 percent under Diagnostic Code 5253 has not been met or more nearly approximated. Right Hip Limitation of Extension The Veteran is currently in receipt of a maximum 10 percent rating for right hip limitation of extension of the thigh beginning December 8, 2020. A September 2014 VA hip examination specifically indicated that the Veteran's right hip extension was limited to 5 degrees. Resolving reasonable doubt in the Veteran's favor, the Board finds that a 10 percent rating is warranted for the appeal period prior to December 8, 2020. Pursuant to this decision, the Veteran is now in receipt of a maximum 10 percent rating for limitation of extension for the entire rating period on appeal. Right Hip Limitation of Flexion The Veteran is in receipt of a noncompensable rating for limitation of right hip flexion beginning January 6, 2017. The Board finds that a compensable rating is not warranted for right hip flexion at any time during the period on appeal because the evidence of record does not show limitation of flexion to 45 degrees. Even after repetitive-use testing, the Veteran's right hip flexion was, at worst, to 95 degrees. See September 2014 and January 2017 VA examination reports (flexion limited to 100 degrees, to include after repetitive use testing); see also December 2020 VA examination report (flexion limited to 95 degrees, Veteran denied flare-ups). Further, the Veteran has never manifested ankylosis of the right hip and no evidence of record throughout the claims period has demonstrated a flail joint or impairment of the femur (to include fractures or malunion). Thus, the Board finds that Diagnostic Codes 5250, 5254, and 5255 are not for application in this case. Sensory Deficit of the Right Lower Extremity Effective November 4, 2011, the Veteran is already in receipt of a 20 percent rating for sensory deficit of the right lower extremity (sciatic nerve) associated with his service-connected right hip disability. Under Diagnostic Code 8520, a 10 percent rating is warranted for mild incomplete paralysis of sciatic nerve, 20 percent for moderate incomplete paralysis, 40 percent for moderately severe incomplete paralysis, 60 percent for severe incomplete paralysis, and 80 percent for complete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a. For the appeal period prior to November 4, 2011, the Board finds that the Veteran's right lower extremity sensory deficit more nearly approximates a 20 percent rating under DC 8520. In this regard, an October 2009 VA examination report indicated that the Veteran had moderate flare-ups daily and severe flare-ups 3 times a month. During physical examination, the examiner indicated that there was evidence of muscle wasting, but no muscle atrophy. The Veteran was noted to have right foot drop, but there was no indication of loss of active movement below the knee (as required for complete paralysis of the sciatic nerve). Additionally, the examiner specifically indicated that the Veteran's disability resulted in "moderate" effects on the Veteran's occupation and daily activities. During a June 2019 VA neurological examination, the Veteran reported "moderate" pain, paresthesias, and numbness in the right lower extremity. Muscle strength in the right knee and ankle was only slightly reduced (4/5). No muscle atrophy was present in the right lower extremity. A sensory examination showed normal results in the lower leg, foot, and toes. The examiner diagnosed the Veteran with "moderate" incomplete paralysis of the sciatic nerve root in the right lower extremity. Accordingly, the Board finds that a 20 percent rating is warranted for moderate incomplete paralysis of the sciatic nerve root prior to November 4, 2011. However, a rating in excess of 20 percent, for the entire rating period on appeal is not warranted. The Veteran's sensory disability has been found to have moderate effects on his occupational and daily activities. Moreover, some of the Veteran's right lower extremity symptoms have been associated with his service-connected spine and radiculopathy disabilities. See September 2014 VA hip examination report (noting that findings were consistent with back condition due to radiculopathy). That notwithstanding, the evidence suggests that the Veteran's right hip disability has resulted in some pain, numbness, and parathesis in the right lower extremity. The Veteran's symptoms, and objective testing of record, more nearly approximate moderate incomplete paralysis of the sciatic nerve root. There is no evidence of muscle atrophy or complete paralysis of the nerve resulting right foot drop with no active movement below the knee. Accordingly, the Board finds that a 20 percent rating, but no higher, is warranted for the appeal period prior to November 4, 2011. Other Considerations The Board also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. However, in this case, the Veteran has already been awarded a TDIU, effective January 21, 2014 (the date of his last employment) due to several of his service-connected disabilities. See May 2016 rating decision. Because, in this case, a TDIU has already been granted for the Veteran's entire period of unemployability, the issue of unemployability is no longer raised. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 371 (2017). REASONS FOR REMAND Diabetes Mellitus and Hypothyroidism The Board previously remanded the claims for service connection for diabetes and hypothyroidism in November 2020 in order to obtain a supplemental medical opinion. Specifically, an opinion was requested regarding whether the Veteran's obesity was an intermediate step to establish proximate causation between his service-connected orthopedic and neurological disabilities and his currently diagnosed diabetes and hypothyroidism. In this regard, the examiner was asked to opine as to whether the Veteran's service-connected orthopedic and neurological disabilities caused him to become obese. If so, the examiner was asked to state whether such obesity (resulting from the service-connected disabilities) was a substantial factor in causing the currently diagnosed diabetes and/or hypothyroidism; and if so, whether the Veteran's diagnosed diabetes and/or hypothyroidism would not have occurred but for the obesity caused by the service-connected disabilities. The examiner was also asked to address whether the Veteran's obesity (resulting from the service-connected disabilities) aggravated the currently diagnosed diabetes and/or hypothyroidism. In making these determinations, the examiner was asked to consider the Veteran's statements regarding his inability to do "anything" following his motorcycle accident in service and was asked to address the April 2010 VA treatment note, where it was indicated that the Veteran was obese with diagnosis of hypothyroidism and diabetes mellitus "all of them predisposing to degenerative changes not only on spine but on joints." A medical opinion was obtained in December 2020. As it pertained to the question regarding whether obesity was caused by the Veteran's service-connected disabilities, the examiner provided a negative nexus opinion. The examiner reasoned that "most overweight people develop their problem in adult life. The long-term risk of becoming obese over the course of one's life appears to be high." Obesity was noted to be caused by multiple factors such as diet, genetic condition, sedentary lifestyle, eating patterns, overeating, and night eating. The Board finds the December 2020 VA medical opinion inadequate as it did not comport with the Board's remand directives. In this regard, there is no indication that the examiner considered the Veteran's statements regarding his inability to do "anything" following his motor vehicle accidence in service. Further, an adequate rationale in support of the opinion was not provided. In other words, the examiner did not explain why the Veteran's obesity was not related, at least in part, to his service-connected disabilities, which appear to significantly impede his ability to walk or exercisepossibly leading to a sedentary lifestyle. See e. g., May 2016 VA spine examination (Veteran is unable to bend or mow lawn); see also January 2017 VA hip examination (noting that the Veteran regularly used a cane and was impaired in his ability to bend, squat, kneel, sit, walk, and stand.). For these reasons, a new medical opinion is required. The matters are REMANDED for the following actions: 1. Obtain a medical opinion pertaining to the Veteran's diabetes and hypothyroidism. The examiner should review the claims file and indicate such on the examination report. The Veteran may be recalled for examination if deemed necessary. The examiner should address the nature and etiology of the Veteran's obesity as an intermediate step in causing, or aggravating, the Veteran's diabetes and/or hypothyroidism. Specifically, the examiner should address the following: (a.) Opine whether it is at least as likely as not (50 percent or greater probability) that the service-connected orthopedic and neurological disabilities caused the Veteran to become obese; The examiner MUST explain whether the Veteran's obesity is related, at least in part, to his service-connected disabilities. The examiner must address the functional impairment resulting from the Veteran's service-connected disabilities, including difficulty walking or exercisingpossibly leading to a sedentary lifestyle. See e. g., May 2016 VA spine examination (Veteran is unable to bend or mow lawn); see also January 2017 VA hip examination (noting that the Veteran regularly used a cane and was impaired in his ability to bend, squat, kneel, sit, walk, and stand). (b.) State whether it is at least as likely as not that such obesity (resulting from the service-connected disabilities) was a substantial factor in causing the currently diagnosed diabetes and/or hypothyroidism; and (c.) if so, whether it is at least as likely as not that the Veteran's diagnosed diabetes and/or hypothyroidism would not have occurred but for the obesity caused by the service-connected disabilities. (d.) State whether it is at least as likely as not that the Veteran's obesity (resulting from the service-connected disabilities) aggravated the currently diagnosed diabetes and/or hypothyroidism. (e.) A complete rationale for any opinion expressed must be provided. **In making these determinations, the examiner is asked to consider the Veteran's statements regarding his inability to do "anything" following his motorcycle accident in service. (Continued on the next page) 2. Then, readjudicate the remanded claims on appeal. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Casadei, 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.