Citation Nr: 21041485 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 16-14 102 DATE: July 9, 2021 ORDER Beginning August 5, 2019, entitlement to an initial disability rating in excess of 10 percent for service-connected left thigh hematoma (hereafter referred to as a "left thigh disability") is denied. FINDING OF FACT Beginning August 5, 2019, the Veteran's left thigh disability exhibits only painful motion. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 10 percent for service-connected left thigh disability are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 52505255, 5275. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1978 to July 1978, January 2003 to April 2004, and December 2008 to December 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. A Board hearing was conducted via video conference with the RO in Jackson, Mississippi. A transcript of this hearing is contained within the electronic claims file. In a November 2019 decision, the Board remanded the issue of entitlement to service connection for posttraumatic stress disorder (PTSD) and, beginning August 5, 2019, entitlement to an initial compensable rating for the left thigh disability. With respect to the latter, the Board found that an updated examination was necessary to rate properly the Veteran's condition. That examination was provided in February 2020 (discussed more fully below). Thus, the Board finds that VA substantially has complied with the most recent remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). That same month, VA awarded service connection for PTSD and a 10 percent rating for the left thigh, beginning January 17, 2020. The former award is a full grant of benefits on appeal, so that issue no longer is before the Board, so it herein will not be discussed. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board). In an April 2020 rating decision, VA noted clear and unmistakable error (CUE) in its February 2020 decision and granted the Veteran an effective date of August 8, 2019, for his 10 percent left thigh rating. Thus, it is against this backdrop that the Board now adjudicates the current claim. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 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. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119, 126 (1999). 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 veteran. 38 C.F.R. § 4.3. DC 5250 is assignable for ankylosis of the hip. A 90 percent disability rating is warranted for ankylosis unfavorable, extremely unfavorable ankylosis, the foot not reaching ground, crutches necessitated. A 70 percent disability rating is warranted for intermediate ankylosis. A 60 percent disability rating is proper where there is favorable ankylosis, in flexion at an angle between 20 degrees and 40 degrees, and slight adduction or abduction. DC 5251 is applicable for limitation of extension of the thigh. To qualify for a 10 percent disability rating, extension of the hip and thigh must be limited to 5 degrees. DC 5252 is assignable for limitation of flexion of the thigh. To qualify for a 40 percent disability rating, flexion must be limited to 10 degrees or more. A 30 percent disability rating requires flexion limited to 20 percent. A 20 percent disability rating requires limitation of flexion to 30 degrees. A 10 percent disability rating require limitation of flexion to 45 degrees. DC 5253 is assignable for impairment of the thigh. In order to qualify for a 20 percent disability rating, the Veteran must experience abduction lost beyond 10 degrees. In order to qualify for a 10 percent disability rating, the Veteran must have either limitation of adduction with an inability to cross legs, or limitation of rotation with an inability to toe-out more than 15 degrees with the affected leg. DC 5254 is assignable for flail joint of the hip and is awarded an 80 percent disability rating. DC 5255 is assignable for impairment of the femur. An 80 percent disability rating is assignable for fracture of the shaft or anatomical neck of the femur with nonunion and loose motion (spiral or oblique fracture). A 60 percent disability requires fracture of the shaft or anatomical neck of the femur with nonunion, without loose motion, and weight bearing preserved with the aid of brace; or, fracture of the surgical neck of the femur with false joint. A 30 percent disability rating requires malunion of the femur with marked knee or hip disability. A 20 percent disability rating requires malunion of the femur with moderate knee or hip disability. A 10 percent disability rating requires malunion of the femur with slight knee or hip disability. DC 5275 is assignable for shortening of the bones of the lower extremity. A difference of over 4 inches (10.2 cms) carries a 60 percent disability rating. A 50 percent disability rating requires a difference of 3.54 inches (8.9cms10.2cms). A 40 percent disability rating requires a difference of 33.5 inches (7.6cms8.9cms). A 30 percent disability rating requires a difference of 2.53 inches (6.4cms7.6cms). A 20 percent disability rating requires a difference of 22.5 inches (5.1cms6.4cms). A 10 percent disability rating requires a difference of 1.252 inches (3.2cms5.1cms). Normal hip flexion is 0125 degrees, and normal hip abduction is 045 degrees. 38 C.F.R. § 4.71a, Plate II. The Board notes that, during the pendency of this appeal, VA has amended the rating criteria for the musculoskeletal system contained in 38 C.F.R. § 4.71a. These changes take effect February 7, 2021, and cannot be applied prior to that date. Beginning that date, however, the Board will apply the rating criteria that is more favorable to the Veteran: either the old or the new criteria. 85 Fed. Reg. 76,453, 76,469 (Nov. 30, 2020). As it pertains to this appeal, malunion of the hip under DC 5255 has undergone changes. Any form of malunion is evaluated under DCs 5256, 5257, 5260, or 5261 for the knee, or 52505254 for the hip, whichever yields greater compensation for the Veteran. Id. at 76,463. When assessing the severity of musculoskeletal disabilities that are, at least partly, rated on the basis of limitation of motion, VA also must consider the extent that a veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when a veteran's symptoms are most prevalent ("flare-ups") due to the extent of his or her pain (and painful motion), weakness, premature or excess fatigability, and incoordination, assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 20407 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. At his hearing, the Veteran testified that the pain in his left hip has worsened since his last VA examination, causes difficulty sleeping, and sometimes is swollen. August 5, 2019, Hearing Transcript (Tr.) at 5, 7. Private treatment records from August 8, 2019, show that the Veteran complained of pain (10/10) in his left thigh with occasional tingling. Examination of the left hip revealed pain with decreased range of motion. An x-ray from August 20, 2019, shows left hip early degenerative arthritis, as well as myositis ossification. A January 2020 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran's complaints and medical history. The Veteran did not report flare-ups but reported functional impairment as trouble squatting. Initial range of motion for the left hip was as follows: flexion: 090 degrees; extension: 020 degrees; abduction: 045 degrees; adduction: 025 degrees; external rotation: 060 degrees; and internal rotation: 040 degrees. Pain was noted for all ranges of motion. Palpation of the left lower abdomen causes pain to the left thigh. The Veteran was able to perform repetitive use testing without additional loss of range of motion. The Veteran was not observed after repeated use over time, but the examiner stated that pain would cause functional loss; however, there was no additional loss of range of motion. Muscle strength was normal. There was no ankylosis, non/malunion of the femur, flail hip joint, or leg length discrepancy. Assistive devices were not noted. The examiner indicated that the left thigh disability does not impact the Veteran's ability to work, but that there is objective evidence of pain for the left hip on non-weight bearing, as well as in passive range of motion. Additional VA medical center (VAMC) records were uploaded, but they do not contain information regarding the left thigh pertinent to the period on appeal. First the Board will extend the agency of original jurisdiction's (AOJ's) award of the 10 percent rating back to August 5, 2019, instead of August 8th. The Veteran competently and credibly testified that his condition had worsened since his last VA examination. The undersigned Veterans Law Judge (VLJ) indicated that the Veteran needed to submit supporting medical evidence substantiating as such, and the Veteran did (the private medical records show degenerative changes). Thus, the Veteran should be afforded the benefit of the August 5, 2019, date. Entitlement to a disability rating in excess of 10 percent, however, is not warranted. The evidence does not disclose that the Veteran's left thigh/hip experiences limitation of motion to any degree that warrants a compensable rating. His flexion and extension, at worst, are limited to 90 and 20 degrees, respectively. A 10 percent rating for flexion requires limitation to 45 degrees, and extension requires limitation to 5 degrees. The AOJ, however, correctly noted that the Veteran's left thigh exhibited painful motion, despite not meeting the requirements in the rating criteria, and awarded him the minimum compensable rating. February 13, 2020, Rating Decision. Thus, the Board is satisfied that the Veteran's painful motion has been taken into consideration when rating him under the DCs for limitation of motion. See DeLuca, 8 Vet. App. at 20407; 38 C.F.R. §§ 4.40, 4.45, 4.59. Furthermore, there is no other thigh or hip disability for which the Veteran can be awarded a separate rating. There is no ankylosis, sufficient limitation of abduction or adduction, flail joint, impairment of the femur, or shortening of left leg. See 38 C.F.R. § 4.71a, DCs 5250, 52535255, 5275. Thus, the Board finds that, beginning August 5, 2019, the Veteran's 10 percent disability rating accurately captures the impairment his left thigh disability causes, and his appeal is denied. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Trevor T. Bernard, Associate 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.