Citation Nr: 22014337
Decision Date: 03/12/22	Archive Date: 03/12/22

DOCKET NO. 17-64 757
DATE: March 12, 2022

ORDER

Entitlement to a rating higher than 10 percent for left hip strain with limitation of flexion is denied.

Entitlement to a rating higher than 10 percent for right hip strain with limitation of flexion is denied.

FINDINGS OF FACT

1. The Veteran's thigh extension is not limited to 5 degrees or less in either thigh.

2. The Veteran's thigh flexion is not limited to 45 degrees or less in either thigh.

3. For the period on appeal, the Veteran's bilateral hip disability has not caused a limitation of abduction with motion lost beyond 10 degrees, a limitation of adduction such that she cannot cross her legs during an examination, or a limitation of rotation such that she cannot toe-out more than 15 percent, in either leg.

4. The Veteran's bilateral hip pain causes functional loss.

CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 10 percent for impairment of left thigh have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5253.

2. The criteria for a rating in excess of 10 percent for impairment of right thigh have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5253.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from April 2001 to April 2002.

These matters come before the Board of Veterans Appeals (Board) on appeal from a February 2017 rating by a Department of Veterans Affairs (VA) Regional Office (RO). 

These matters were previously remanded by the Board in June 2021, to obtain a new VA medical examination after the Veteran asserted that her bilateral hip condition had worsened since her last VA examination in December 2016. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). A new VA examination was conducted in June 2021. The Board therefore finds that the June 2021 remand instructions were substantially complied with, and will proceed with a decision. See Stegall v. West, 11 Vet. App. 268, 271 (1998).

Disability ratings generally

Disability evaluations are determined by comparing the manifestations of a disability with the criteria set forth in the Diagnostic Codes (DCs) of the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. § Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity (in civilian occupations) resulting from service-connected disability. 38 C.F.R. § 4.1.

The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, separate ratings may be assigned to different conditions if they do not constitute the same disability or manifestation thereof. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261 (1994).

When 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 for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

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 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).

When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt shall be resolved in favor of the claimant. 38 C.F.R. § 4.3.

A schedular rating may be increased if there is objective evidence during examination or treatment of functional loss exceeding that fixed by a schedular rating. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995); Mitchell v Shinseki, 25 VA 32 (2011); see also 38 C.F.R. §§ 4.40, 4.45, 4.59.

Limitation of motion of the hip is rated under 38 C.F.R. § 4.71a, Diagnostic Codes (DCs) 5251, 5252, and 5253. The Board notes that while portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, these three diagnostic codes were not affected by the change.

Under DC 5251, a 10 percent rating is warranted for extension of the hip limited to 5 degrees. 

Under DC 5252, a 10 percent rating is warranted for flexion of the hip limited to 45 degrees; a 20 percent rating is warranted for flexion of the hip limited to 30 degrees; a 30 percent rating is warranted for flexion of the hip limited to 20 degrees; and a 40 percent rating is warranted for flexion of the hip limited to 10 degrees. 

Under Diagnostic Code 5253, a 10 percent rating is warranted for limited rotation such that the individual cannot toe-out the affected leg more than 15 degrees; a 10 percent rating is also warranted for limited abduction such that the individual cannot cross the legs; and a 20 percent rating is warranted for limited abduction such that motion is lost beyond 10 degrees. 

Normal range of motion of the hip is from 0 to 125 degrees of flexion and 0 to 45 degrees of abduction. 38 C.F.R. § 4.71, Plate II.

In considering the applicability of other Diagnostic Codes, the Board finds that Diagnostic Code 5250 concerning hip ankylosis, Diagnostic Code 5254 concerning hip flail joint, and Diagnostic Code 5255 concerning femur impairment do not apply, as the medical evidence does not diagnose any of these conditions or otherwise cite them as signs or symptoms of the Veteran's disabilities.

Entitlement to a higher initial evaluation for left hip strain

A December 2016 VA hips and thighs conditions examination report reflect the Veteran's report of bilateral hip pain, aggravated by cold weather, standing for more than 45 minutes, and crouching. The clinical examination revealed left hip flexion to 85 degrees, extension to 30 degrees, abduction to 45 degrees, adduction to 25 degrees, full external rotation (to 60 degrees), and internal rotation to 40 degrees. Repetitive use testing revealed left hip flexion to 100 degrees, extension to 30 degrees, abduction to 50 degrees, adduction to 25 degrees, external rotation to 40 degrees, and internal rotation to 20 degrees. Her left hip adduction was not limited such that she could not cross her legs. Pain occurred with flexion and extension of the left hip, noted to cause functional loss. Mild hip pain was noted with gentle palpation of the left hip joint. There was evidence of pain with weight bearing, but no objective evidence of crepitus.

On examination in June 2021, the Veteran's left thigh displayed a normal initial range of motion (both active and passive), albeit with pain noted on internal and external rotation. The examiner noted no limitation of adduction that would prevent the Veteran from crossing her legs, and no crepitus. The examiner did note objective evidence of tenderness or pain on palpitation of the greater trochanter area. No additional functional loss was noted after three repetitions, and the examiner stated thatbased on statements procured from the Veteranthere was no additional functional loss after repeated use over time, nor during flare-ups.

The June 2021 examiner did note increased left hip pain, not resulting in functional loss, during flare-ups. This is consistent with the Veteran's own lay testimony regarding hip pain. However, the Veteran's painful motion is already compensated with a 10 percent evaluation as required by 38 C.F.R. § 4.59. Painful motion, without additional functional loss, cannot be the basis for an increased rating for the Veteran's left hip condition.

The medical evidence does not show any increased, or separate rating is warranted under any of the applicable Diagnostic Code, even considering any functional loss due to such factors as pain. Thus, the criteria for an increased, or separate, rating for the left hip are not met in this case.

The Board has also considered the Veteran's lay statements in support of her claim. The Veteran is competent to report observations regarding the severity of her symptoms, see Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds these lay statements to be credible, but her reports of hip pain are consistent with the ratings assigned. To the extent the Veteran argues her symptomatology is more severe, her 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 more persuasive than more general lay assertions that higher ratings are warranted. The Board concludes that, as the evidence persuasively leans against an increased rating for left hip pain, it is not in approximate balance; the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § §§ 4.7, 4.21; see also Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). Entitlement to a rating higher than 10 percent for left hip strain is denied.

Entitlement to a higher initial evaluation for right hip strain

The Veteran underwent a VA examination for her right hip strain in December 2016. On examination, she displayed right hip flexion to 95 degrees, extension to 30 degrees, abduction to 35 degrees, adduction to 15 degrees, full external rotation (to 60 degrees), and internal rotation to 35 degrees. Repetitive use testing revealed right hip flexion to 90 degrees, extension to 35 degrees, abduction to 30 degrees, adduction to 20 degrees, external rotation to 30 degrees, and internal rotation to 25 degrees. Her right hip adduction was not limited such that she could not cross her legs. Pain was noted with abduction and adduction of the right hip, which caused functional loss. Mild hip pain was noted with gentle palpation of the right hip joint. There was evidence of pain with weight bearing, but no objective evidence of crepitus.

On examination in June 2021, the Veteran's right thigh displayed a normal initial range of motion (both active and passive), albeit with pain noted on internal and external rotation. The examiner noted no limitation of adduction that would prevent the Veteran from crossing her legs, and no crepitus. The examiner did note objective evidence of tenderness or pain on palpitation of the greater trochanter area. No additional functional loss was noted after three repetitions, and the examiner stated thatbased on statements procured from the Veteranthere was no additional functional loss after repeated use over time, nor during flare-ups. 

The June 2021 examiner did note increased right hip pain, not resulting in functional loss, during flare-ups. This is consistent with the Veteran's own lay testimony regarding hip pain. However, the Veteran's painful motion is already compensated with a 10 percent evaluation as required by 38 C.F.R. § 4.59. Painful motion, without additional functional loss, cannot be the basis for an increased rating for the Veteran's right hip condition.

The medical evidence does not show any increased, or separate rating is warranted under any of the applicable Diagnostic Code, even considering any functional loss due to such factors as pain. Thus, the criteria for an increased, or separate, rating for the right hip are not met in this case.

The Board has also considered the Veteran's lay statements in support of her claim. The Veteran is competent to report observations regarding the severity of her symptoms, see Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds these lay statements to be credible, but her reports of hip pain are consistent with the ratings assigned. To the extent the Veteran argues her symptomatology is more severe, her 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 more persuasive than more general lay assertions that higher ratings are warranted. The Board concludes that, as the evidence persuasively leans against an increased rating for left hip pain, it is not in approximate balance; the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § §§ 4.7, 4.21; see also Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). Entitlement to a rating higher than 10 percent for right hip strain is denied.

 

DELYVONNE M. WHITEHEAD

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Shermila Sundquist

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.