Citation Nr: 22040180 Decision Date: 07/13/22 Archive Date: 07/13/22 DOCKET NO. 18-43 411 DATE: July 13, 2022 ORDER Entitlement to an initial rating in excess of 10 percent for a right knee tibia stress fracture disability from May 25, 2017, is denied. Entitlement to an initial rating in excess of 10 percent for a right hip disability, limitation of abduction, from May 25, 2017, is denied Entitlement to an initial compensable rating of 10 percent, but no higher, for a right hip disability, limitation of flexion, from May 25, 2017, is granted. Entitlement to an initial compensable rating of 10 percent, but no higher, for a right hip disability, limitation of extension, from July 16, 2021, is granted. FINDINGS OF FACT 1. From May 25, 2017, the Veteran's right knee disability has not manifested in extension limited to 10 degrees or flexion limited to 45 degrees or less. 2. From May 25, 2017, the Veteran's right hip disability of limitation of abduction, has not manifested in limitation of rotation of the right leg, not more than 15 degrees, or the inability for the Veteran to cross her legs. 3. From May 25, 2017, the Veteran's right hip disability of limitation of flexion, has not manifested flexion limited to 45 degrees, but has been productive of painful motion, to include functional limitation of flexion. 4. From July 16, 2021, the Veteran's right hip disability of limitation of extension has not manifested in extension of the thigh limited to 5 degrees, but has been productive of painful motion, to include functional limitation of extension. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for the service-connected right knee disability from May 25, 2017, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DCs) 5260, 5261. 2. The criteria for an increased initial rating in excess of 10 percent for the service-connected right hip disability limitation of abduction and adduction from May 25, 2017, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5253. 3. The criteria for an initial compensable rating of 10 percent for the service-connected right hip limitation of flexion from May 25, 2017, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5252. 4. The criteria for an initial compensable rating of 10 percent for the service-connected right hip limitation of extension from July 16, 2021, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5251. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 2016 to May 2017. This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) in a November 2020 hearing. The Veteran was granted a separate rating for limitation of extension of the right hip in the April 2022 rating decision. As the Veteran appealed for increased ratings for her right hip in November 2017, the Board finds the evaluation of the limitation of extension for the Veteran's right hip is still in appellate status. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board granted service connection for other disabilities in the April 2022 rating decision. The Veteran may file a notice of disagreement with those ratings and/or effective dates. Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). As in the instant case, separate ratings for distinct periods of time, based on the facts may be for consideration. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. 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 DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). For an examination to adequately incorporate that requirement, examiners must provide an opinion as to whether pain significantly limits functional ability on use and during flare-ups. Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017). 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 (musculoskeletal system) or § 4.73 (muscle injury); 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). Painful motion with joint or periarticular pathology and unstable joints due to healed injury are recognized as productive of disability entitled to at least a minimal compensable rating for the joint. 38 C.F.R. § 4.59. The application of 38 C.F.R. § 4.59 is not limited to arthritis-related claims. Burton v. Shinseki, 25 Vet. App. 1 (2011). This appeal raises no additional issues, beyond those addressed below. 1. Entitlement to an initial rating in excess of 10 percent for a right knee tibia stress fracture disability from May 25, 2017 The Veteran asserts that her right knee disability is more severe than is reflected by her current evaluation. The Veteran's right knee disability is rated as 10 percent disabling under DC 5260, for limitation of flexion from May 25, 2017, the day after the Veteran left service. The Board notes that the schedular criteria for rating for the musculoskeletal system, to include the knee, have been amended once during the pendency of the Veteran's appeal, effective February 7, 2021. See 85 Fed. Reg. 76,453 (November 30, 2020). When a law or regulation changes during the pendency of a Veteran's appeal, the version most favorable to the Veteran applies, absent congressional intent to the contrary. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The Board notes that, pertinently, Diagnostic Codes 5003, 5010, 5055, and 5257 were amended. The other rating criteria applicable to the knee have not been changed. Knee disabilities may be rated under 38 C.F.R. § 4.71a, DC 5256 (for ankylosis), DC 5257 (for other impairment, including recurrent subluxation or lateral instability), DC 5258 (or dislocated semilunar cartilage), DC 5259 (for symptomatic removal of semilunar cartilage), DC 5260 (for limitation of flexion), DC 5261 (for limitation of flexion), DC 5262 (for impairment of the tibia and fibula), and DC 5263 (for genu recurvatum). 38 C.F.R. § 4.71a. The Board finds that DCs 5256, 5258, 5259, 5261, 5262, and 5263 are not applicable in this appeal, as the medical evidence does not establish that the Veteran experienced these symptoms at any point during the pendency of the appeal. 38 C.F.R. § 4.71a. Additionally, the evidence of record does not reflect complaints of or treatment for knee instability, so DC 5257 is not applicable in this appeal. At the outset of this analysis, the Board notes the applicability of multiple DCs addressing limited range of motion (ROM) have been considered in order to maximize the Veteran's disability rating. Additionally, the Board has considered both the old and new criteria for DCs 5260 and 5261. Following a thorough review of the criteria, the Board notes that these two rating codes were not changed. Under DC 5260 (for limitation of flexion), a 10 percent rating is warranted when flexion of the leg limited to 45 degrees, a 20 percent rating is warranted when flexion is limited to 30 degrees, and a maximum 30 percent rating is warranted when flexion is limited to 15 degrees. Under DC 5261 (for limitation of extension), a 10 percent rating is warranted when extension is limited at 10 degrees, a 20 percent rating is warranted when extension is limited at 15 degrees, a 30 percent rating is warranted when extension is limited to 20 degrees, a 40 percent rating is warranted when extension is limited to 30 degrees, and a maximum 50 percent rating is warranted when extension is limited to 45 degrees. Flexion of the knee to 140 degrees is considered full; extension to 0 degrees is considered full. Plate II. 38 C.F.R. § 4.71a. Separate ratings may be assigned where a knee disability includes both compensable limitation of flexion under DC 5260 and compensable limitation of extension under DC 5261, provided that the degree of disability is compensable under each set of criteria. VAOPGCPREC 09-04; 69 Fed. Reg. 59990 (2004). The Veteran was afforded a VA knee examination in July 2017. The examiner noted a stress fracture of the right tibia. The Veteran reported flare-ups of the knee with repeated bending and prolonged standing. The Veteran did not report having any functional loss or functional impairment. The Veteran's range of motion of the right knee was measured at 135 degrees of flexion and 140 degrees of extension (i.e., not limited). The examiner noted pain with flexion, but that it did not result in or cause functional loss. No evidence of pain with weight bearing was indicated. The Veteran's left knee exhibited normal range of motion with no pain. The Veteran was able to perform repetitive use testing with at least three repetitions for both knees, but additional functional loss or range of motion was not found. The examiner did not find that pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time for both knees. The examiner noted the examination was not being conducted during a flare-up, and the examination was neither medically consistent or inconsistent with the Veteran's statements describing functional loss during flare-ups. The examiner found that pain, weakness, fatigability or incoordination did not significantly limit functional ability with flare-ups. The Veteran's knees did not manifest in joint instability, muscle atrophy, joint subluxation, instability, or ankylosis. The Veteran did report shin splints due to a stress fracture of the lower leg, but the shin splints did not affect range of motion of the ankle. No history of surgery or meniscus issues were reported. The Veteran was found to not use any assistive devices. An X-ray of the Veteran's knee was obtained that did not show arthritis or effusion. The Veteran's right knee was found to impact her ability to perform occupational tasks such as repeated bending. The Veteran's left knee had normal range of motion with no evidence of pain, as well as no pain in passive range of motion or weight bearing. Private medical records from June 2017 reveal a right knee x-ray. The Veteran's right knee showed normal osseous alignment and mineralization without fracture or dislocation. May 2018 physical therapy records show that the Veteran's active range of motion for her right knee was measured at 95 degree of flexion and +10 of extension. Her passive range of motion was measured at 99 degrees of flexion. VA medical records from October 2019, April 2020, and June 2020 show that the Veteran complained of chronic knee pain. The Veteran testified in November 2020 that her problem with her right knee included swelling and that the VA knows of the issue. The Veteran was afforded a VA knee examination in July 2021. The examiner noted diagnoses of a knee strain and stress fracture of the tibia. The Veteran reported flare-ups of the knee/lower leg from prolonged standing, walking, and bending. The Veteran did not report having any functional loss or functional impairment. The Veteran did not report or have history of instability, recurrent subluxation, or effusion and none was found during the examination. The Veteran's active and passive of range of motion of her right knee was measured at 90 degrees of flexion and to 0 degrees of extension. The Veteran's left knee had normal range of motion with no evidence of pain, as well as no pain in passive range of motion or weight bearing. Passive range of motion, active range of motion, and weight bearing exhibited pain of the right knee, but did not result in or cause functional loss. There was no objective evidence of crepitus. The Veteran was able to perform repetitive use testing at least three times but did not result in additional functional loss of range of motion. The examination was not conducted during a flare-up. The examiner found that pain, fatigability, weakness, lack of endurance, or incoordination did not significantly limit functional ability with flare-ups. The examiner estimated the range of motion during flare-ups as the same as active and passive range of motion. Additional contributing factors of the Veteran's disability included interference with standing, swelling, less movement than normal, and weakened movement. The Veteran's left knee range of motion was normal. No muscle atrophy was indicated. The examiner found no ankylosis of the right knee. No history of ligament tears, recurrent patellar instability, surgical repairs, or meniscus issues were found. The examiner reported no assistive device were used. The examiner found Veteran's right knee impacted her ability to perform the occupational tasks of prolonged standing, walking, and bending. VA medical records from September 2021 reveal the Veteran presented with lateral right knee pain for one month worse with extension or flexion. In October 2021, the Veteran reported a right knee injury at work. She reported using a brace and icing with moderate effects. A right knee x-ray showed no definitive evidence of acute fracture or joint effusion. No reports of limitation of range of motion were noted. While the Veteran is competent to observe her right knee symptoms, she does not have the training or credentials to determine the current nature, extent, and severity of those symptoms. Additionally, she does not have the training or credentials to determine the proper disability evaluation concerning her right knee symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Neither repetitive motion testing nor flare-ups were shown to cause such additional limitation of motion as to suggest that the flexion or extension were functionally limited to a level warranting ratings higher than those currently assigned. The Board finds the evidence of record persuasively favors finding that the Veteran's right knee has not resulted in limitation of flexion to 45 degrees or less. The VA examinations and medical evidence of record indicate that the Veteran's right knee flexion has been greater than 60 degrees, which is commensurate with a zero percent rating under DC 5260; however, her right knee flexion has also consistently been painful. Therefore, under 38 C.F.R. § 4.59, the Veteran is entitled to a minimum rating of at least 10 percent. Burton, 25 Vet. App. at 5. Additionally, the examinations and medical evidence of record show the Veteran's right knee extension is not limited to 10 degrees. Thus, a separate rating under DC 5261 is not warranted. The Veteran does have not a diagnosis for degenerative arthritis of the right knee. There is no evidence of meniscal conditions, no evidence or complaints of knee instability, subluxation, and no evidence that the Veteran's has any limitation of extension. As such, no separate evaluations are warranted. Based on these facts, the evidence of record persuasively favors finding that the criteria for a 20 percent or higher disability have not been met. Accordingly, the claim for an initial disability rating in excess of 10 percent for the Veteran's right knee disability is denied. The evidence is persuasively against the Veteran's claims, and there is no doubt to be resolved. 38 U.S.C. § 5107(b). 2. Entitlement to an initial rating in excess of 10 percent for a right hip disability, limitation of abduction, from May 25, 2017 3. Entitlement to an initial compensable of 10 percent for a right hip disability, limitation of flexion from May 25, 2017 4. Entitlement to an initial compensable rating of 10 percent for a right hip disability, limitation of extension, from July 16, 2021 The Veteran is service connected for three right hip conditions. She is in receipt of a 10 percent rating for limitation of abduction (DC 5253, a noncompensable rating for limitation of flexion (DC 5252) from May 25, 2017, and a noncompensable rating for limitation of extension (DC 5251) from July 16, 2017. Under DC 5251, a 10 percent rating is warranted for extension of the thigh limited to 5 degrees. No other ratings are available under DC 5251 for limited extension. 38 C.F.R. § 4.71a, DC 5251. Under DC 5252, a 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 20 degrees. A maximum 40 percent rating is warranted for flexion limited to 10 degrees. 38 C.F.R. § 4.71a, DC 5252. Under DC 5253, a 10 percent rating is warranted for limitation of rotation of affected leg, cannot toe out more than 15 degrees. A 10 percent rating is also warranted for limitation of adduction, cannot cross legs. A maximum 20 percent rating is warranted for limitation of abduction, motion lost beyond 10 degrees. 38 C.F.R. § 4.71a, DC 5253. Normal range of motion of the hip is flexion from 0 to 125 degrees and abduction from 0 to 45 degrees. 38 C.F.R. § 4.71a, Plate II. The standardized description of joint measurements is provided in Plate II under 38 C.F.R. § 4.71. Full hip flexion is to 125 degrees. 38 C.F.R. § 4.71a, Plate II. Full hip abduction is to 45 degrees. 38 C.F.R. § 4.71a, Plate II. Other DCs relating to the hip are DC 5250 for ankylosis, DC 5254 for flail joint, and DC 5255 for impairment of the femur. These conditions are not shown on examination or in the medical evidence of record during the appeal period, and the Board finds that application of these DCs is not warranted. 38 C.F.R. § 4.71a. Additionally, as previously discussed, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. As a reminder, the February 7, 2021 musculoskeletal amendments presented no changes to the rating criteria for Diagnostic Codes 5250 through 5255. In other words, these Diagnostic Codes are the same both prior to and after February 7, 2021. Compare 38 C.F.R. § 4.71a (December 29, 2020) with 38 C.F.R. § 4.71a (February 7, 2021). The Veteran was afforded a VA hip examination in July 2017. The examiner noted a femoral neck stress fracture from 2016, right hip pain, and sacroiliac joint pain. The Veteran did report flare-ups and also reported "everything" makes it worse, including prolonged standing and walking more than two miles. The examiner indicated that the Veteran did not report functional loss or functional impairment of the joint. The Veteran's range of motion for the right hip was measured at 155 degrees of flexion, 30 degrees of extension, 45 degrees of abduction, 25 degrees of adduction, external rotation of 45 degrees, and internal rotation of 35 degrees. The examiner indicated that the Veteran's range of motion itself did not contribute to functional loss. However, range of motion testing for flexion, external rotation, and internal rotation exhibited pain. The Veteran's left hip range of motion measurements were found to be normal with no pain and no pain with weight bearing. The Veteran was not limited in crossing her legs and there was no evidence of crepitus. The Veteran was able to perform repetitive use testing with her right and left hip at least three repetitions which did not cause functional loss or additional loss of range of motion. The examination was not immediately after repetitive use over time and the examiner indicated was not either medically consistent or inconsistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner found that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. The examination was not conducted during a flare-up, and the examiner noted that the examination was neither medically consistent or inconsistent with the Veteran's statements describing functional loss during flare-ups. The examiner found that pain, weakness, fatigability, or incoordination did not significantly limit the Veteran's functional ability with flare-ups. The Veteran was not found to be using any assistive devices. No arthritis was found. The examiner went on to find that the Veteran's right hip impacted her ability to perform occupational tasks such as prolonged standing or walking more than two miles. VA medical records from April 2018 show the Veteran reported pain in her hips as five out of ten with the frequency of being constant and on and off. The Veteran reported that sitting too long, standing for prolonged periods, and walking long distances made her pain worse. In May 2018, the Veteran reported pain and was offered a pain management consult after the attending physician went over negative X-ray results. Physical therapy records from May 2018 show the Veteran's right hip range of motion manifested in 75 degrees of flexion, -6 degrees of extension, 23 degrees of internal rotation, and 15 degrees of external rotation. In August 2018 psychiatry notes, the Veteran reported working as a home health aide for the prior six months and that she had done reasonably well. Bilateral hip x-rays from October 2018 show the Veteran's hips were within normal limits. Records from April 2020 show the Veteran had complaints of knee and hip pain and that x-rays were unrevealing. The Veteran testified in November 2020 that the pain and swelling in her hips and knees are the main issues. VA medical records from June 2021 reveal that the Veteran complained of hip pain. The Veteran was noted as having adequate range of motion with flexion of 120 degrees, full extension, and no pain with internal/external rotation. The Veteran described her hip pain as 13 out of 10. Imaging from June 2021 shows that she had tiny hip labral calcifications bilaterally, otherwise normal. She was found to have no acute pathology. The Veteran was afforded a VA hip and thigh examination in July 2021. The examiner noted diagnoses of right hip strain, sacroiliitis of the sacroiliac joint, and a femoral neck stress fracture from 2016. The Veteran reported flare-ups daily with standing, walking, or prolonged standing. The Veteran did not report having functional loss or functional impairment of the joint, including but not limited to after repeated use over time. The Veteran's range of motion was found to be abnormal, but the range of motion itself was not found to contribute to a functional loss. The Veteran's right hip active range of motion endpoints were found to be 90 degrees of flexion, 20 degrees of extension, 35 degrees of abduction, 20 degrees of adduction, 40 degrees of external rotation, and 30 degrees of internal rotation. Pain was exhibited on flexion, extension, abduction, adduction, external rotation, and internal rotation. The Veteran's limitation of adduction did not prevent her from crossing her legs. The Veteran's passive range of motion measured the same as active range of motion with pain in flexion, extension, abduction, external rotation, and internal rotation. Limitation in passive adduction did not prevent the Veteran from crossing her legs. Pain was noted on weight-bearing, non-weight-bearing, active motion, passive motion, and on rest/non-movement. The examiner indicated the pain did not result in or cause functional loss. There was objective evidence of crepitus, but no localized tenderness or pain on palpation. The Veteran was able to perform repetitive use testing with at leave three repetitions with no additional loss of function or range of motion. The Veteran was not examined immediately after repeated use over time. The procured evidence did not suggest pain, fatigability, weakness, lack of endurance, or incoordination which would significantly limit functional ability with repeated use over time. The examiner estimated the range of motion after repeated use over time as the same as the active range of motion measurements. The examination was not conducted during a flare-up, and the procured evidence did not suggest pain, fatigability, weakness, lack of endurance, or incoordination which significantly limited functional ability with flare-ups. The examiner indicated that the Veteran's range of motion during the flare-ups was the same as the active range of motion measurements. The Veteran's limitation in adduction during flare-ups was not found to limit her ability to cross her legs. No muscle atrophy, ankylosis, malunion or nonunion of femur, flail hip joint, or leg length discrepancy was indicated. The Veteran was found to not use assistive devices. The examiner noted that the Veteran's functional impact included prolonged sitting, walking, and standing. While the Veteran is competent to observe her right hip symptoms, she does not have the training or credentials to determine the current nature, extent, and severity of those symptoms. Additionally, she does not have the training or credentials to determine the proper disability evaluation concerning her right hip symptoms. See Jandreau, 492 F.3d at 1377. The Board finds that the Veteran does not have extension of limited to 5 degrees, flexion limited to 45 degrees, external rotation limited to 15 degrees, abduction limited to 10 degrees, or limitation of adduction such that the Veteran could not cross her legs. See 38 C.F.R. § 4.71a, DC 5251, 5252, 5253. Other DCs relating to the hip are DC 5250 for ankylosis, DC 5254 for flail joint, and DC 5255 for impairment of the femur. These conditions are not shown on examination or in the medical evidence of record during the appeal period, and the Board finds that application of these DCs is not warranted. With regard to the flexion and extension limitations of the Veteran's right hip, the Veteran's limitations have not manifested in the required criteria pursuant to rating criteria. However, the Board finds that ratings of 10 percent, and no higher, for both the Veteran limitation of flexion under DC 5252 and extension under DC 5251 due to painful motion are warranted. Burton, 25 Vet. App. at 5. Thus, the claims for compensable ratings for the Veteran's right hip limitation of flexion and extension are granted to this extent only. Neither repetitive motion testing nor flare-ups were shown to cause such additional limitation of motion as to suggest that the flexion, extension, or abduction were functionally limited to a level warranting ratings higher than those currently assigned of 10 percent. Additionally, VA assigned the minimum 10 percent rating for painful motion caused by the right hip abduction disability. 38 C.F.R. § 4.59; Burton, 25 Vet. App. at 5. The Board finds that a rating in excess of 10 percent for the right hip limitation of abduction disability is not warranted. The Veteran's right hip abduction has not manifested in the required rating criteria pursuant to DC 5253 for a higher 20 percent rating. The evidence is persuasively against the Veteran's claim for an increased rating for right hip adduction in excess of 10 percent, and there is no doubt to be resolved. 38 U.S.C. § 5107(b). A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Hetman 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.