Citation Nr: 21040535 Decision Date: 07/05/21 Archive Date: 07/05/21 DOCKET NO. 15-27 923 DATE: July 5, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent for a right hip disability, excluding the period of temporary total evaluation from August 20, 2018 to October 1, 2018, is denied. Entitlement to an effective date earlier than December 4, 2013, for the award of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. Entitlement to an effective date earlier than December 4, 2013, for the award of Dependents' Educational Assistance (DEA) benefits under Chapter 35, Title 38, United States Code, is denied. FINDINGS OF FACT 1. For the entirety of the appeal period, the Veteran's right hip disability has been manifested by painful motion and he has been assigned the maximum schedular rating for a right hip disability based on limitation of extension; his right hip disability has not been manifested by flexion limited to 45 degrees; and his right hip disability has not been manifested by an inability to cross his legs or an inability to toe out more than 15 degrees. 2. Prior to December 4, 2013, the Veteran's service-connected disabilities did not preclude him from securing or following substantially gainful employment. 3. Prior to December 4, 2013, the Veteran did not have a permanent and total disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial disability rating in excess of 10 percent for a service-connected right hip disability, excluding the period of temporary total evaluation from August 20, 2018 to October 1, 2018, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5251, 5252, 5253. 2. The criteria for entitlement to a TDIU prior to December 4, 2013 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16. 3. The criteria for entitlement to DEA prior to December 4, 2013 have not been met. 38 U.S.C. §§ 3501, 5110; 38 C.F.R. §§ 3.807, 21.3021. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Marine Corps from August 1989 to August 1993. He also had additional service with the Army National Guard from August 2004 to December 2005. Most recently, in October 2020, the Board remanded the matters on appeal for further development. Upon completion of the requested development, the agency of original jurisdiction (AOJ) issued a May 2021 rating decision in which it, inter alia, assigned a temporary total rating for sarcoid arthropathy, right hip, status post total right hip replacement, for the period from August 26, 2020, to October 1, 2021; a 50 percent rating will be assigned thereafter. A supplemental statement of the case (SSOC) addressing entitlement to an initial rating in excess of 10 percent for the right hip disability prior to August 26, 2020, and to earlier effective dates for the awards of a TDIU and establishment of basic eligibility for DEA benefits was issued that same month and the matters were thereafter returned to the Board. Upon review of the development completed on remand, the Board finds that the AOJ substantially complied with the remand directives such that the Board can proceed to adjudicate the merits of the claims on appeal. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to an initial disability rating in excess of 10 percent for a service-connected right hip disability, excluding the period of temporary total evaluation from August 20, 2018 to October 1, 2018, is denied. Disability evaluations are determined by the application of a schedule of ratings, which 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. The percentage ratings in VA's Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Veteran seeks entitlement to an initial disability rating in excess of 10 percent for his right hip disability, excluding the period a temporary total evaluation was awarded from August 20, 2018 to October 1, 2018. As noted above, the Veteran was awarded another temporary total evaluation from August 26, 2020, through October 1, 2021 (currently in effect), so discussion of the Veteran's rating from August 26, 202,0 forward is not necessary. Under Diagnostic Code 5251, limitation of hip extension to 5 degrees warrants a 10 percent evaluation and it is the highest evaluation available under the Diagnostic Code. 38 U.S.C. § 4.71 a, Diagnostic Code 5251. Limitation of hip flexion is evaluated under Diagnostic Code 5252. A 10 percent evaluation is warranted for flexion limited to 45 degrees; a 20 percent evaluation is warranted for flexion limited to 30 degrees; a 30 percent evaluation is warranted for flexion limited to 20 degrees; and a maximum 40 percent evaluation is warranted for flexion limited to 10 degrees. 38 U.S.C. § 4.71a, Diagnostic Code 5252. Under of Diagnostic Code 5253 (impairment of the thigh), a maximum rating of 20 percent is assigned for limitation of abduction when motion is lost beyond 10 degrees. A rating of 10 percent is assigned for a limitation of adduction (cannot cross legs) or for a limitation of rotation (cannot toe-out more than 15 degrees). Turning to the evidence, the Veteran underwent a VA examination in February 2013. At that time, he reported flare-ups of sharp pains and numbness that extended from his hip down to his feet. Range of motion testing was performed. Flexion was to 95 degrees, with objective evidence of painful motion at 85 degrees. Extension was greater than 5 degrees, with objective evidence of painful motion at greater than 5 degrees. Adduction ended at 25 degrees, with objective evidence of painful motion at 20 degrees. Abduction was to 40 degrees, with objective evidence of painful motion at 30 degrees. Internal rotation was to 35 degrees, with objective evidence of painful motion at 30 degrees. External rotation was to 50 degrees, with objective evidence of painful motion at 45 degrees. Abduction was not lost beyond 10 degrees. Adduction was not limited such that the Veteran could not cross his legs. Rotation was not limited such that the Veteran could not toe-out more than 15 degrees. The Veteran was able to perform repetitive-use testing with three repetitions without additional limitation of range of motion in the hip and thigh. The examiner observed that the Veteran exhibited less movement than normal, pain on movement, and localized tenderness or pain to palpation of the joints/soft tissue of the right hip. Muscle strength testing was performed and yielded normal results. The Veteran did not exhibit ankylosis of either hip joint. He did not have malunion or nonunion of the femur, flail hip joint, or leg length discrepancy. The Veteran had not undergone hip joint replacement or other surgical procedures. He did not utilize any assistive devices. The Veteran's hip condition did not result in functional impairment such that no effective function remained other than that which would be well served by an amputation with prosthesis. Imaging studies were performed and did not reveal degenerative or traumatic arthritis. The examiner found that the Veteran's hip disability did not impact his ability to work. A diagnosis of right hip strain was rendered. A May 2013 private treatment record documents the Veteran's complaints of anterior thigh and leg pain. Right hip flexion was to 110 degrees with pain. Internal rotation was to 25 degrees. External rotation was to 45 degrees. A July 2013 private treatment record documents range of motion testing. Right hip flexion was 100 degrees with pain. External rotation was to 40 degrees. Internal rotation was to 30 degrees. Abduction was to 30 degrees. Adduction was to 25 degrees. In August and October 2013, the Veteran underwent transforaminal epidural steroid injections to combat his chronic pain syndrome, right hip pain (osteoarthritis and right trochanteric bursitis), and right lower extremity radicular symptoms. The report of imaging studies conducted in March 2015 was interpreted to reveal mild bilateral degenerative changes of the hips. There was right-sided coxa profunda. There was no evidence of erosion or avascular necrosis (AVN). The sacroiliac joints appeared preserved. The Veteran attended another VA examination in March 2017. At that time, he reported flare-ups of pain that made walking difficult, as well as extreme pain after standing, sitting, or lying down for long periods. Range of motion testing was performed. Flexion was to 125 degrees. Extension was to 30 degrees. Abduction was to 45 degrees. Adduction was to 25 degrees. External rotation was to 40 degrees. Internal rotation was 40 degrees. Adduction was not limited such that the Veteran could not cross his legs. Pain was noted on external rotation, but it was not shown to result in or cause functional loss. There was no evidence of pain on passive motion or on non-weight-bearing testing. There was no objective evidence of localized tenderness, pain on palpation of the joint or associated soft tissue, or crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions without additional loss of function or range of motion after three repetitions. The Veteran was not examined immediately after repetitive use over time or during a flare-up. However, the examiner found that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time and during flares. Pain and lack of endurance were determined to significantly limit the Veteran's functional ability under both conditions. The examiner was unable to describe such functional loss following repetitive use over time or during flares in terms of range of motion. Additional factors contributing to the Veteran's disability included less movement than normal, disturbance of locomotion, and interference with standing. Muscle strength testing was performed and yielded normal results. The Veteran did not have muscle atrophy, ankylosis, malunion or nonunion of the femur, flail hip joint, or leg length discrepancy. He had not undergone any surgical procedures, nor did he utilize assistive devices. The Veteran's hip condition did not result in functional impairment such that no effective function remained other than that which would be well served by an amputation with prosthesis. Imaging studies were performed and did not reveal degenerative or traumatic arthritis. Concerning functional limitations in an employment environment, the examiner found that the Veteran's lifting and squatting would frequently be limited. The examiner found that the prior diagnosis of a right hip strain as erroneous, as it had not resolved in a few weeks as a strain typically would. Instead, the examiner found that it was more likely that the Veteran's right hip disability was a polyarthritic symptom related to his diagnosed sarcoidosis. In August 2017, the Veteran underwent imaging studies of his right hip and pelvis which revealed bilateral AVN involving the femoral heads without subchondral collapse. Private treatment records from March 2018 continue to document the Veteran's complaints of right hip pain, described as aching, dull, and throbbing, and aggravated with normal daily activities, sleeping, walking, standing, and activity. He exhibited tenderness but no deformity or mechanical symptoms. He reported the use of over-the-counter medications and injections of the hip joint with some mild improvement. Range of motion was limited by pain. Flexion was to 95 degrees. Extension was to 5 degrees. Internal rotation was to 10 degrees with pain. External rotation was to 30 degrees. Abduction was to 35 degrees. At a follow-up in June 2018, range of motion was again limited by pain. Flexion was to 105 degrees. Extension was to 5 degrees. Internal rotation was to 10 degrees with pain. External rotation was to 35 degrees. Abduction was to 40 degrees. In July 2018, range of motion was limited by pain. Flexion was to 100 degrees. Extension was to 5 degrees. Internal rotation was to 10 degrees with pain. External rotation was to 35 degrees. Abduction was to 40 degrees. The Veteran requested operative intervention for his right hip pain in August 2018 and later that month underwent a diagnostic arthroscopy of the right hip with arthroscopic labral repair and acetabuloplasty, arthroscopic anterior-inferior iliac spine resection, arthroscopic femoral osteochondroplasty, and debridement of foveal synovitis. At his immediate post-surgical follow-up, a private examiner found that he was progressing as expected with mild, moderate complaints at the operative site and surrounding areas. He reported compliance with the prescribed regimen and initial symptoms had nearly resolved. His activity level was restricted at that time due to pain, weakness, stiffness, and any imposed restrictions. Range of motion testing revealed flexion to 90 degrees, internal rotation to 15 degrees, and external rotation to 45 degrees. An October 2018 follow-up note indicates that the Veteran's healing was progressing as expected with mild, moderate complaints at the inguinal crease that was steadily decreasing. He reported compliance with the prescribed regimen and initial symptoms had nearly resolved. His activity level was restricted at that time due to pain, weakness, stiffness, and any imposed restrictions. While he indicated that he had to stress his hip to move furniture, he stated that he had no increased pain from that activity. Range of motion testing revealed flexion to 105 degrees, internal rotation to 20 degrees, external rotation to 40 degrees, and abduction to 45 degrees. In November and December 2018, the Veteran attended post-surgical follow-ups. He was progressing as expected with moderate, intermittent complaints located anteriorly in the inguinal crease but steadily decreasing. He reported full compliance with the prescribed regimen. His initial symptoms had nearly resolved and were clearly better than pre-operative. His activity level was restricted at that time due to pain, weakness, stiffness, and imposed restrictions. Range of motion testing at both examinations revealed flexion to 105 degrees, internal rotation to 20 degrees, external rotation to 50 degrees, and abduction to 45 degrees. In January 2020, the Veteran presented with moderate, intermittent complaints located anteriorly in the inguinal crease, but his major concern was his hip giving out without warning, almost causing him to fall twice on the stairs. He reported full compliance with the prescribed regimen; however, his initial symptoms appeared to have returned. Range of motion was limited by pain. Flexion was to 95 degrees. Extension was to 5 degrees. Internal rotation was to 15 degrees with pain. External rotation was to 35 degrees. Abduction was to 35 degrees. Adduction was to 5 degrees. At an imaging testing follow-up in February 2020, a private examiner determined that the Veteran's AVN was relatively stable but the bone bruising indicated that there was likely degenerative joint disease progression, despite the frayed labrum being another possible source of the Veteran's hip giving way. A home exercise program (HEP) was prescribed to help. In April 2020, the Veteran again presented with moderate, intermittent complaints located anteriorly in the inguinal crease and his hip giving out without warning. He reported no relief or change in giving out with the HEP. Range of motion was limited by pain. Flexion was to 100 degrees. Extension was to 5 degrees. Internal rotation was to 10 degrees with pain. External rotation was to 35 degrees. Abduction was to 35 degrees. Adduction was to 5 degrees. He was given a right hip injection. At his June 2020 appointment, the Veteran reported that his right hip disability was progressing poorly if at all, with moderate, severe, constant complaints located anteriorly in the inguinal crease and posteriorly. He reported full compliance with the prescribed regimen and initial symptoms were unchanged. The injection provided in April 2020 were not helpful. Range of motion was limited by pain. Flexion was to 105 degrees. Internal rotation was to 10 degrees. External rotation was to 40 degrees. In August 2020, the Veteran underwent a right total hip arthroplasty. This procedure led to the assignment of the current temporary total evaluation that is in effect from August 27, 2020 through October 1, 2021. After a review of the record, the Board finds that the initial 10 percent disability rating, excluding the period of a temporary total evaluation from August 20, 2018, through October 1, 2018, is appropriate. The evidence demonstrates that the Veteran has some functional loss due to painful motion and lack of endurance of the right hip. The current 10 percent rating accounts for the Veteran's competent, credible reports of painful motion. Concerning whether a higher disability rating is awardable based on limitation of extension, the Board notes that the current 10 percent rating is the maximum allowable rating available under Diagnostic Code 5251; thus, further discussion regarding limitation of extension is not warranted. The Board now turns to whether a higher disability rating is warranted based on limitation of flexion under Diagnostic Code 5252. At no time during the appeal period has the Veteran's flexion been limited to 45 degrees. Indeed, the Veteran's most restricted flexion measurement during the appellate period was 95 degrees as shown on the February 2013 VA examination and in March 2018 and January 2020 private treatment records. Even at evaluations performed in advance of the Veteran's surgical procedures in August 2018 and August 2020 he exhibited flexion well beyond 45 degrees. With respect to Diagnostic Code 5253 and limitation of abduction, the probative medical evidence of record does not reflect that the Veteran was unable to toe out more than 15 degrees or was unable to cross his legs as contemplated by a 10 percent rating under Diagnostic Code 5253. Moreover, his abduction was limited to no more than 30 degrees as shown at the February 2013 VA examination. The Board has considered the possibility of awarding a higher rating under 38 C.F.R. §§ 4.40 and 4.45 and declines to do so. There is no indication in the medical evidence of record summarized above that symptoms such as pain have resulted in additional functional loss or limitation of motion that would meet or approximate the criteria for a higher evaluation. There were no findings of additional limitations of motion due to pain during initial range of motion testing that meet or approximate the criteria for higher rating under the General Rating Formula. As such, a higher rating is unwarranted under DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The Board has also considered whether additional separate ratings are required under Diagnostic Codes 5250, 5254, and 5255. It finds that no such ratings are warranted. The record contains no indication that the Veteran's right hip disability is manifested by ankylosis. In fact, the VA examination reports of record throughout the appeal period expressly document that the Veteran does not have ankylosis. Further, the Veteran has not been shown to have flail joint or a specific, separate impairment of the femur. Thus, additional ratings under Diagnostic Codes 5250, 5254, and 5255 are not applicable. 38 C.F.R. § 4.71a. In reaching this decision, the Board has considered the Veteran's lay statements in support of his claim. The Board notes that the Veteran is competent to report observations with regard to the severity of his symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372, and 1376-77 (Fed. Cir. 2007). The Board finds these lay statements to be credible and consistent with the rating assigned. To the extent he argues his symptomatology is more severe, the Veteran's statements must be weighed against the other evidence of the record. Here, the specific examination findings of trained health care professionals and documented medical treatment records are of greater probative weight than the more general lay assertions that a higher rating is warranted. In sum, the Board has considered the entire record, including the Veteran's reported symptomatology and the objective clinical evidence. For the reasons set forth above, the assignment of an initial rating in excess of 10 percent for the Veteran's right hip disability, excluding the period of a temporary total evaluation, is denied. Entitlement to an earlier effective date for the award of a TDIU prior to December 4, 2013 is denied. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Prior to December 4, 2013, the Veteran was service-connected for a right hip disability, rated as 10 percent disabling. His combined disability rating was 10 percent. The Veteran did not meet the schedular criteria for a TDIU, as his one service-connected disability was not rated at 60 percent or more. Although the Veteran did not meet the schedular requirements for TDIU prior to December 4, 2013, the claim may still be referred to the Director of Compensation Services for assignment an extraschedular rating if the evidence of record shows that the Veteran is "unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities." 38 C.F.R. § 4.16 (b). Then the issue becomes whether the Veteran has been unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. However, the Board finds that there is insufficient evidence to support the contention that prior to December 4, 2013, the Veteran could no longer obtain or maintain a substantially gainful occupation as a result of his service-connected disability. Prior to December 4, 2013, the Veteran was service-connected for only sarcoid arthropathy, right hip, which disability was evaluated as 10 precent disabling. While the Veteran reported painful right hip motion at his February 2013 VA examination, he made no specific averments concerning difficulty obtaining or maintaining employment due to this pain and the VA examiner specifically found no functional impact from his right hip strain. Because the evidence does not establish that the Veteran was unable to secure or follow a substantially gainful occupation by reason of service-connected disability prior to December 4, 2013, referral to the Director, Compensation Service, is not warranted. 38 C.F.R. § 4.16 (b). Entitlement to TDIU benefits prior to December 4, 2013 is denied. Entitlement to an earlier effective date for the award of DEA prior to December 4, 2013 is denied. The Board's denial of an earlier effective date for the award of a TDIU precludes the assignment of an effective date prior to December 4, 2013 for the award of DEA benefits. In this regard, for purposes of DEA benefits under 38 U.S.C. Chapter 35, the law relevant to the Veteran's current claim provides that basic eligibility exists where the Veteran was discharged from service under conditions other than dishonorable and has a total disability permanent in nature as a result of a service-connected disability. 38 U.S.C. § 3501 (a)(1); 38 C.F.R. §§ 3.807 (a), 21.3021. With certain exceptions that are not applicable to the instant claim, the effective date for the grant of such award shall, to the extent feasible, correspond to effective dates for awards of disability compensation. 38 U.S.C. § 5113 (a). A total disability may be assigned where the Veteran's service-connected disabilities are rated 100 percent disabling under the rating schedule, or if the Veteran is unemployable due to service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341. Here, the currently assigned effective date of December 4, 2013, for basic eligibility for DEA benefits is directly related to the award of a TDIU. See September 2017 Rating Decision (granting entitlement to a TDIU effective December 4, 2013, and establishing entitlement to DEA benefits, effective that same date). Since eligibility for DEA benefits is predicated on a finding of a total (100 percent) disability rating, the effective date of such eligibility cannot precede the December 4, 2013, TDIU award. Accordingly, the assignment of an effective date prior to December 4, 2013, for the establishment of basic eligibility for DEA benefits is precluded by law. See 38 U.S.C. §§ 3501(a)(1), 5113(a); 38 C.F.R. §§ 3.807(a), 21.3021; see also Sabonis v. Brown, 6 Vet. App. 426 (1994) (noting that when the law is dispositive of the claim, then the claim must, as a matter of law, be denied because of the absence of legal merit or lack of entitlement under the law). (Continued on the next page) Because the law, and not the facts, is dispositive of the outcome of this issue, the benefit-of-the-doubt rule does not apply. See Sabonis, 6 Vet. App. at 430; see also 38 U.S.C. § 5107; 38 C.F.R. § 3.102. KRISTIN E. NEILSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Bush 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.