Citation Nr: 22018240
Decision Date: 03/28/22	Archive Date: 03/28/22

DOCKET NO. 16-34 555
DATE: March 28, 2022

ORDER

Entitlement to a rating in excess of 30 percent for a hip condition prior to December 11, 2019, and in excess of 50 percent from December 11, 2019, and thereafter is denied.

FINDINGS OF FACT

1. Prior to December 11, 2019, the Veteran's bilateral hip condition did not rise to the level of "moderately severe;" his primary residual was intermediate degree of residual weakness, pain, and/or limitation of motion.

2. From December 11, 2019, the Veterans bilateral hip condition did not result in markedly severe" residuals of weakness, pain or limitation of motion. 

CONCLUSION OF LAW

The criteria for entitlement to a rating in excess of 30 percent for a hip condition prior to December 11, 2019, and in excess of 50 percent from December 11, 2019, and thereafter have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5054.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran served on in the United States Navy from June1976 to April 1981.

This case is before the Board of Veterans' Appeals (Board) on appeal from February 2013 and October 2020 Regional Office (RO) rating decisions.

This matter was previously remanded by the Board in June 2019 for additional development, including a VA examination. As there has been substantial compliance with prior remand directives, this matter is properly before the Board for adjudication.

Increased Ratings

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 illness proportionate to the severity of the several grades of disability.  See 38 C.F.R. § 4.1.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155; 38 C.F.R. Part 4. While the Board typically considers only those factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment.  See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994).

When 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.  38 C.F.R. § 4.7.  When 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.

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Nevertheless, in cases where the Veteran's claim arises from a disagreement with the initial evaluation following the grant of service connection, the Board shall consider the entire period of claim to see if the evidence warrants the assignment of different ratings for different periods of time during these claims a practice known as "staged" ratings.  Fenderson v. West, 12 Vet. App. 119 (1999).

1. Entitlement to a rating in excess of 30 percent for a hip condition prior to December 11, 2019, and in excess of 50 percent from December 11, 2019, and thereafter

The Veteran's bilateral hip condition is rated as 30 percent disabling prior to December 11, 2019, and 50 percent disabling from December 11, 2019, and thereafter. He seeks higher ratings.

The Veteran's bilateral hip condition is rated under Diagnostic Code (DC) 5054, which compensates specifically for prosthetic hip replacements. Under the applicable diagnostic criteria, following the one year total rating for the implantation itself, a 30 percent rating is assigned as a basic minimum rating. When residuals are "moderately severe," of weakness, pain or limitation of motion, a 50 percent rating is warranted. "Markedly severe" residuals of weakness, pain or limitation of motion are assigned a 70 percent rating. Finally, a 90 percent rating is assigned when painful motion and weakness are present such as to require the use of crutches. 38 C.F.R. § 4.71a , DC 5054.

Terms such as "mild," "moderate," "moderately severe, and "markedly severe" are not defined by the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6.

A disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40 With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of "the normal working movements of the body," such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40 ); see also DeLuca v. Brown, 8 Vet. App. 202, 206-207 (1995)

Prior to December 11, 2019

The Veteran was initially afforded a VA examination in June 2012. At that time, the Veteran reported aching in his right hip and no symptoms in his left. He reported that he could walk one block and swims for exercise. The examiner noted that the Veteran walked with a smooth gait without any assistive devices. On examination, the Veteran exhibited right hip flexion to 60 degrees and extension was normal. The Veteran exhibited left hip flexion to 70 degrees and extension was normal. The Veteran was unable to cross his legs due to limitation in adduction. No flare ups were reported and no objective evidence of painful motion was noted. There was no additional loss of function or range of motion after repetitive testing, Strength was normal. He showed no signs of diagnosed or functional ankylosis. He did not have a leg length discrepancy and did not use any assistive devices. Functionally, the examiner stated that the Veterans hip condition with limited motion restricts his ability to work when requiring him to go up or down stairs, stand for prolonged periods or walk more than short distances or requires frequent getting up and down from sitting position. The examiner noted the Veterans bilateral hip surgery resulted in intermediate degree of residual weakness, pain, and/or limitation of motion.

In a December 2013 private treatment record, the physician noted that the Veteran hips demonstrate decreased range of motion in all planes with active and passive range of motion. He further noted that the Veteran can no longer cross his legs from either side. 

The Board notes the Veterans December 2013, private physician opinion that his bilateral hip disability should be rated as 50 percent disabling. However, based on the evidence, the Board finds that prior to December 11, 2019, the criteria for a rating in excess of 30 percent have not been met. Although the Veteran clearly experienced residuals following his total hip replacement surgery, to include painful movement and less movement than usual, he was still able to use his hip. In fact, during his 2012 VA examination, the Veteran reported that he swims for exercise. There is no indication prior to December 11, 2019, that these activities were limited by his hip replacement. Further, the 2012 examiner stated that the residuals of the Veterans surgery resulted in intermediate degree of residual weakness, pain, and/or limitation of motion. At most, there was evidence of pain on movement. As such, the Board does not find that his residuals manifested to a level of being "moderately severe," and a rating in excess of 30 percent under the diagnostic criteria is not supported.

From December 11, 2019 

The Veteran underwent a new VA examination in December 2019. The examiner noted that the Veterans bilateral hip condition had progressed. The Veteran reported chronic pain in his right hip with decreased range of motion. He described the pain as beginning at about 2 out of 10 in the morning and becoming worse throughout the day to about an 8-9 out of 10 by the afternoon. He further reported that the pain becomes worse with activity and better with rest and laying back in supine position. In addition, the Veteran reports that he cannot put on his shoes and socks by himself, has trouble putting pants on in the morning, and is unable to bend down to lift up anything.  In terms of flare-ups, the Veteran reported stabbing pain in the hip that is so severe he gets spasms and cannot get out of bed. He indicated this occurs at least twice a month. 

On examination, the Veteran exhibited flexion of 30 degrees and extension of 8 degrees in the right hip and flexion of 25 degrees and extension of 8 degrees in the left hip. No pain was noted on examination. On repetitive testing, the Veteran exhibited flexion to 0-25 degrees and extension to 0-7 degrees. The examiner noted that the Veteran was unable to cross his legs and exhibited 4/5 muscle strength. No atrophy or ankylosis was noted. However, the examiner noted a leg length discrepancy due to hip surgery and moderately severe residuals of weakness, pain, or limitation of motion. The examiner noted that the Veteran uses a cane for both his back and hip condition. In regard to functional impact, the examiner noted that the Veteran was unable to bend or kneel over as he is unable to stand up after kneeling, unable to walk for extended time, and has trouble with ambulation and transitioning from sitting to standing and vice versa.

The Board finds that the Veteran is not entitled to rating in excess of 50 percent for his bilateral hip condition from December 11, 2019. In this regard, the evidence of record does not show that the Veteran's bilateral hip condition has manifested by markedly severe residual weakness, pain, or limitation of motion. In fact, the December 2019 VA examiner specifically noted that the Veteran's bilateral hip condition resulted in moderately severe residuals of weakness, pain, or limitation of motion.  Additionally, while the Veteran's uses a cane occasionally, the examiner noted that he uses it for both his back and hip conditions. Further, even considering the Veteran's own lay statements regarding the severity of his hip, he has not shown such severe residuals as to require the use of crutches to ambulate.

In sum, the Board finds that prior to December 11, 2019, the Veteran's bilateral hip condition did not rise to the "moderately severe" level, and therefore, a rating in excess of 30 percent is not warranted. Likewise, following December 11, 2019, the Veteran has not shown painful motion or weakness that is markedly severe, and a rating in excess of 50 percent is not supported. As such, the claim is denied. 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.

 

 

B.T. KNOPE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Vample, Erica