Citation Nr: 21042104 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 16-59 742 DATE: July 12, 2021 ORDER Entitlement to an initial compensable disability rating for the residuals of a right femoral neck stress fracture based on limitation of flexion of the thigh is denied. FINDING OF FACT For the entire period on appeal, the Veteran's residuals of a right femoral neck stress fracture have been manifested by flexion limited to no worse than 90 degrees with painful motion. CONCLUSION OF LAW The criteria for an initial compensable disability rating for residuals of a right femoral neck stress fracture based on limitation of flexion of the thigh have not been met for any period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5252. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 2014 to April 2015. This matter returns to the Board of Veterans' Appeals (Board) after a January 2019 remand for further development. This claim arises from an August 2015 Department of Veterans' Affairs (VA) Regional Office (RO) rating decision granting service connection at a non-compensable rating for residuals of the right femoral neck stress fracture under Diagnostic Code 5252, limitation of flexion. The Veteran timely filed a September 2015 notice of disagreement to the initial rating. The RO issues a statement of the case in October 2016 in which the RO granted a separate rating of 10 percent due to painful motion under Diagnostic Code 5253, while maintaining a non-compensable rating under Diagnostic Code 5252, limitation of flexion. The Veteran timely filed a Form 9 in November 2016 to appeal to the Board the "[e]valuation for residuals, right femoral neck stress fracture currently evaluated at 10 percent (claimed as upper femur fracture and right hip condition)." While waiting on the appeal to be docketed before the Board, the RO granted a separate non-compensable rating under Diagnostic Code 5251 for residuals of the right femoral neck stress fracture with limitation of extension based on a November 2017 VA examination. The Veteran filed a second Notice of Disagreement in January 2018 for all three ratings. The RO issued an second SOC in February 2018 for the two non-compensable ratings under Diagnostic Codes 5251 and 5252. The Veteran never filed a Form 9 to perfect the appeal from the February 2018 SOC. The Board notes that the January 2019 decision only remanded the non-compensable rating for residuals of a right femoral neck stress fracture based on limitation of flexion, which is under Diagnostic Code 5252. The Veteran has a 10 percent rating under Diagnostic Code 5253 which granted in an October 2016 statement of the case (SOC). No separate rating decision was issued granting the separate increased rating of 10 percent rating under Diagnostic Code 5253 for residuals of a right femoral neck stress fracture based on painful motion. As such, the October 2016 SOC acts in essence as a rating decision. However, the October 2016 SOC failed to address the non-compensable rating under Diagnostic Code 5252. The first time the non-compensable rating under Diagnostic Code 5252 for "residuals, right femoral neck stress fracture (claimed as upper femur fracture and right hip condition)," was addressed by an SOC was in the February 2018 SOC. The post-Board remand SSOCs addressed the rating under DC5252, as "entitlement to an initial compensable rating for the residuals of a right femoral neck stress fracture based on limitation of flexion of the thigh," which is the original rating granted in the August 2015 rating decision under Diagnostic Code 5252 for limitation of flexion. Therefore, given the above, the only issue properly before the Board in January 2019, and returning to the Board now, is an initial compensable rating under Diagnostic Code 5252 based on limitation of flexion. Increased Rating Disability ratings are determined by applying a schedule of ratings that 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. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38C.F.R. §4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38C.F.R. § 4.7. The Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Entitlement to an initial compensable disability rating for the residuals of a right femoral neck stress fracture based on limitation of flexion of the thigh. The Veteran contends that her right hip should be rated at 30 percent based on osteoarthritis with ganglion cyst and range of motion. See November 2016 VA Form 9. Specifically, the Veteran claims her range of motion is restricted by flare-ups that prevent her from crossing her legs. See May 2018 Informal Hearing Presentation (IHP). 38 C.F.R. § 4.71a lays out the diagnostic codes for the hip in Diagnostic Codes 5250 through 5255. The Board notes that 38 C.F.R. § 4.71a was updated on February 7, 2021; however, the only revisions to the applicable Diagnostic Codes are in form and grammar. Diagnostic Code 5252, concerning limitation of flexion of the thigh, states that a 40 percent rating is warranted for limitation of flexion at 10 degrees, a 30 percent rating is warranted for limitation of flexion at 20 degrees, a 20 percent rating is warranted for limitation of flexion at 30 degrees, and a 10 percent rating is warranted for limitation of flexion at 45 degrees. 38 C.F.R. § 4.59 provides a minimum compensable rating for rating of a joint based on recognized actual painful, unstable, or malaligned joints due to heal injury. 38 C.F.R. § 4.14 provides that evaluation of the same disability under various diagnoses is to be avoided. The evaluation of the same disability under different codes is called pyramiding. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. The Board notes that there are three VA examination reports of record during the appeal period, one in August 2015, a second in September 2016, and a third in November 2017. The Board also notes that there is a July 2017 University of Kansas Hospital private examination of record, as well as a more recent May 2020 independent medical examination conducted by Dr. John W. Ellis, MD, of the Ellis Clinic. A review of the above examinations reveals that the November 2017 VA examination documents most restricted range of motion for the Veteran's right hip to 90 degrees. Specifically, the November 2017 examiner found right hip flexion limited to 0 to 90 degrees, extension to 0 to 10 degrees, abduction to 0 to 25 degrees, and adduction 0 to 10 degrees, external rotation at 0 to 30 degrees, and internal rotation at 0 to 30 degrees. Left hip range of motion for flexion is limited to 0 to 125, extension to 0 to 30 degrees, abduction to 0 to 45 degrees, adduction 0 to 25 degrees, external rotation to 0 to 60, internal rotation to 0 to 40 degrees. The examiner noted pain on flexion, extension, abduction, adduction, external rotation, internal rotation. The examiner also noted evidence of pain on passive range of motion testing and when the joint is used in non-weight bearing. The examiner noted no pain on weight bearing. The examiner noted an antalgic gait. The examiner noted that the right hip was compared to the opposing undamaged left hip. The Board notes that these are all considered normal, full range of motion for VA purposes. No evidence of localized tenderness or pain on palpation and no objective evidence of crepitus. The examiner noted that adduction for either hip is not limited such that the Veteran cannot cross her legs. The examiner stated that range of motion itself does not contribute to functional loss for either hip. The examiner noted that on repetitive motion testing there was no additional loss of function or range of motion after three repetition for both hips. The examiner noted that the Veteran was examined immediately after repetitive use over time and found that pain, weakness, fatigability, and/or incoordination do not significantly limit functional ability with repeated use over a period of time for either hip. The examiner noted there is no pain with weight bearing for either hip. The Veteran noted objective evidence of localized tenderness to touch and pain over mid groin area for the right hip but no tenderness to touch or pain for the left hip. There is no evidence of crepitus for either hip. The examiner noted that the examination is not being conducted during a flare-up for either hip. The examiner stated that the examination is medically consistent with the Veteran's statements describing functional loss during flare-ups. The examiner noted that he could not say whether pain, weakness, fatigability, and/or incoordination significantly limit functional ability with flare-ups without mere speculation. The examiner explained this is because there is no conceptual or empirical basis for making such a determination without directly observing function under these circumstances. The examiner noted that the Veteran does not use any assistive devices as a normal mode of locomotion. Muscle strength testing for the right hip found reduction in muscle strength due entirely to the claimed condition. Specifically, flexion was found to be as 4/5, active movement against resistance, while extension and abduction were 5/5, normal strength. All left hip testing was 5/5, normal muscle strength. The examiner found no ankylosis of either hip, no malunion or nonunion of the femur, flail hip joint, or leg length discrepancies. The examiner did note labral tear with pain in the right hip that contributes to the disability. The examiner found no other pertinent physical findings, complications, conditions, signs, symptoms, and/or scars associated with the claimed condition. The examiner noted imaging had been completed but there was no evidence of degenerative or traumatic arthritis documented. Other diagnostic testing noted by the VA examiner included a September 29, 2016 record noting that the articular surface of the right hip is smooth with no narrowing of the joint space, unremarkable acetabulum, with not surrounding soft tissue changes. The November 2017 VA examiner noted that the impact to functional is that mildly moderate to strenuous activates, including repetitive or prolong activates of any kind, will increased the pain for the Veteran. The examiner noted that the prevalence range of labral tears in patients with hip or groin pain has been reported to be 22% to 55%. The November 2017 VA examiner further stated that studies have shown that it is, on average, greater than 2 years before diagnosis and patients often have to see multiple health care providers to obtain this diagnosis. MRI is the diagnostic test of choice. When conservative measures fail, surgery is necessary and the philosophy behind this has shifted, now that there is evidence supporting the acetabular labrum's role in preventing premature arthritis. For comparison, the August 2015 VA examination report documents right hip flexion to 125 degrees without pain. The September 2016 VA examination report documents right hip flexion to 125 degrees with pain that did not result in functional loss. The July 2017 private examination at the University of Kansas documents right hip flexion to 130 degrees without pain. Finally, the most recent May 2020 private examination by Dr. Ellis documents right hip flexion to 100 degrees. Notably, Dr. Ellis stated that his range of motion findings were based upon a telephone interview with the Veteran, due to COVID-19 safety protocols. As such, his findings are less probative than the objective range of motion findings of record, including those documented in the VA examination reports of record, which were based upon in-person range of motion testing using a goniometer. As such, the May 2020 findings by Dr. Ellis are less probative in the context of the Veteran's appeal. Nevertheless, even assuming that such findings are accurate, the Board is mindful that the finding of right hip flexion to 100 degrees by Dr. Ellis, in would not warrant a compensable disability rating under the relevant diagnostic criteria of DC 5252. Similarly, none of the additional objective range of motion findings concerning the Veteran's right hip flexion during the appeal period warrant a compensable initial disability rating. As such, based on the most severe right hip flexion to 90 degrees as documented within the November 2017 VA examination, and a review of all the additional evidence of record, the Board finds that there is no probative evidence showing that the Veteran's right hip flexion is limited to 45 degrees or less for any period on appeal. Therefore, the Board finds that a higher, compensable rating is not warranted under Diagnostic Code 5252 for the entire period on appeal. The Board has considered the applicability of other diagnostic codes regarding the right hip and find that none are applicable in the context of the instant appeal. The Board notes that the Veteran is already in receipt of a separate 10 percent disability rating under 38 C.F.R. § 4.59 for painful motion of her right hip under DC 5253. As such, the Board cannot assign a compensable rating under DC 5252 for painful motion, because assigning a minimum compensable rating for pain for the same joint under two different diagnostic codes constitutes impermissible pyramiding. Therefore, a separate rating for painful motion under DC 5252 cannot currently be assigned. Moreover, the Board does not have the jurisdiction over the Veteran's separate hip ratings under DC 5251 and 5253 for her right hips. As explained above, the Veteran did not file timely appeals with respect to these specific ratings issues. Additionally, a separate rating under DC 5255 is also not warranted because there is no finding of nonunion and/or malunion, and a rating under DC 5254 is not warranted because there is no finding of flail hip joint. Finally, the Board finds no probative diagnostic imaging confirming osteoarthritis with ganglion cyst in the evidence of record; therefore, a separate rating for right hip arthritis is also not warranted at this time. However, if the Veteran's condition should worsen and arthritis is later confirmed through imaging, the Veteran is encouraged to file a supplemental claim at that time. Based on the foregoing, the Board finds that the Board is unable to assign a compensable rating for right hip limitation of flexion under DC 5252. The Veteran is given every benefit of the doubt. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). However, the governing laws and lack of jurisdiction prevent the Board from granting a higher regulation. Therefore, the Veteran's claim must be denied. The Board is mindful of the Veteran's ongoing statements concerning the increasing severity of her condition. For example, in May 2020, the Veteran submitted a statement which reported that she retained hypermobility prior to her right hip injury but now experienced pain, stiffness, and fatigue. The Veteran has also consistently stated that she has flare-ups of her right hip which render her unable to cross her legs. See e.g., November 2017, September 2016, and August 2015 VA Examinations; see also VA Physical Therapy Notes. As such, while the Board does not have jurisdiction at this time to consider the separate disability ratings for her right hip, the Veteran may wish to file a supplemental claim regarding the assigned disability ratings for her right hip under DCs 5252 and 5253. The Board also urges the Veteran to continue to monitor her right hip and if the condition worsens such that arthritis is confirmed by x-ray, that she should file a supplemental claim at that time as well. D. C. JOHNSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Boushehri, Darjush M. 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.