Citation Nr: A25035352 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 241128-499985 DATE: April 16, 2025 ORDER Entitlement to a rating in excess of 10 percent for bony exostosis distal interphalangeal joint fifth toe, status post exostectomy lateral arthroplasty, left foot, is denied. Entitlement to a rating in excess of 10 percent for removal of exostosis lateral distal arthroplasty, fifth toe, right foot, is denied. Entitlement to a compensable rating prior to July 27, 2024, and a rating in excess of 10 percent thereafter for right hip strain with trochanteric pain syndrome, limitation of flexion, is denied. Entitlement to a rating in excess of 10 percent for left hip strain with trochanteric pain syndrome, limitation of flexion, is denied. Entitlement to a compensable rating for right hip strain with trochanteric pain syndrome, limitation of extension, is denied. Entitlement to a compensable rating for left hip strain with trochanteric pain syndrome, limitation of extension, for the period prior to December 3, 2024, is denied. FINDINGS OF FACT 1. The Veteran's left foot bony exostosis distal interphalangeal joint fifth toe, status post exostectomy lateral arthroplasty, left foot, manifests with pain on the lateral edge of his fifth toe for which he is prescribed orthotics. 2. The Veteran's removal of exostosis lateral distal arthroplasty, fifth toe, right foot, manifests with pain on the lateral edge of his fifth toe for which he is prescribed orthotics. 3. The Veteran's right hip strain with trochanteric pain syndrome, manifests with limitation of flexion to no less than 110 degrees prior to July 27, 2024, and no less than 40 degrees thereafter. 4. The Veteran's left hip strain with trochanteric pain syndrome, manifests with limitation of flexion to no less than 110 degrees prior to July 27, 2024, and no less than 40 degrees thereafter. 5. The Veteran's right hip strain with trochanteric pain syndrome, manifests with limitation of extension to no less than 10 degrees. 6. For the period prior to December 3, 2024, the Veteran's left hip strain with trochanteric pain syndrome, manifests with limitation of extension to no less than 10 degrees. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for bony exostosis distal interphalangeal joint fifth toe, status post exostectomy lateral arthroplasty, left foot, have not been met. 38?U.S.C. §?1155, 5107; 38?C.F.R. §§?3.321, 4.1, 4.40, 4.45, 4.71a, Diagnostic Code 5282. 2. The criteria for entitlement to a rating in excess of 10 percent for removal of exostosis lateral distal arthroplasty, fifth toe, right foot, have not been met. 38?U.S.C. §?1155, 5107; 38?C.F.R. §§?3.321, 4.1, 4.40, 4.45, 4.71a, Diagnostic Code 5282. 3. The criteria for entitlement to a compensable rating prior to July 27, 2024, and a rating in excess of 10 percent for right hip strain with trochanteric pain syndrome, limitation of flexion, have not been met. 38?U.S.C. §?1155, 5107; 38?C.F.R. §§?3.321, 4.1, 4.40, 4.45, 4.71a, Diagnostic Code 5252. 4. The criteria for entitlement to a rating in excess of 10 percent for left hip strain with trochanteric pain syndrome, limitation of flexion, have not been met. 38?U.S.C. §?1155, 5107; 38?C.F.R. §§?3.321, 4.1, 4.40, 4.45, 4.71a, Diagnostic Code 5252. 5. The criteria for entitlement to a compensable rating for right hip strain with trochanteric pain syndrome, limitation of extension, have not been met. 38?U.S.C. §?1155, 5107; 38?C.F.R. §§?3.321, 4.1, 4.40, 4.45, 4.71a, Diagnostic Code 5251. 6. For the period prior to December 3, 2024, the criteria for entitlement to a compensable rating for left hip strain with trochanteric pain syndrome, limitation of extension, have not been met. 38?U.S.C. §?1155, 5107; 38?C.F.R. §§?3.321, 4.1, 4.40, 4.45, 4.71a, Diagnostic Code 5251. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 2010 to March 2011, and from April 2011 to July 2012. The rating decision on appeal was issued in November 2024 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In November 2024, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a November 2024 decision. In November 2024, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior November 2024 decision. In a November 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the initial November 2024 AOJ decision, which was subsequently subject to higher-level review. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Increased Ratings Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38?U.S.C. §?1155; 38?C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38?C.F.R. §?4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38?C.F.R. §?4.3. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38?C.F.R. §?4.14. 1. Entitlement to a rating in excess of 10 percent for left fifth toe bony exostosis distal interphalangeal joint, status post exostectomy lateral arthroplasty 2. Entitlement to a rating in excess of 10 percent for right fifth toe removal of exostosis lateral distal arthroplasty The Veteran is seeking higher ratings for his service-connected left and right fifth toe conditions. The Veteran's left and right fifth toe disabilities are currently rated at 10 percent each under Diagnostic Code 5299-5282. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38?C.F.R. §?4.27. A diagnostic code ending in "99" and followed by a hyphen connotes a disability that does not exist in the rating schedule and instead has been rated as analogous to a different disability which does exist in the rating schedule. 38 C.F.R. § 4.20. Under Diagnostic Code 5282, a noncompensable rating is warranted for hammer toes of single toes. A maximum 10 percent rating is warranted for hammer toe of all toes, unilateral, without claw foot. 38 C.F.R. § 4.71a, Diagnostic Code 5282. As the Veteran is in receipt of the highest schedular rating for hammer toe, there is no basis to award a higher rating under Diagnostic Code 5282. The Board has also considered the other Diagnostic Codes pertaining to the foot. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017). In Scott v. Wilkie, the Federal Circuit expressly adopted the Court's holding that disabilities specifically listed in the rating schedule may only be rated under Diagnostic Codes which specifically pertain to them. Scott v. Wilkie, 920 F.3d 1375 (Fed. Cir. 2019) (citing Copeland v. McDonald, 27 Vet. App. 333, 336 (2015)). The Federal Circuit also expressly adopted the Court's holding that unlisted conditions may be rated by analogy to Diagnostic Codes that may not describe the unlisted disability but addresses disabilities that may be productive of similar symptoms. Scott, 920 F.3d 1375 (citing Yancy v. McDonald, 27 Vet. App. 484, 493 (2016). Finally, the Federal Circuit concluded that the Board must also consider assigning separate ratings under analogous Diagnostic Codes, when rating an unlisted service-connected foot disability exhibiting distinct manifestations, even when service connection has also been granted for one of the eight conditions listed in the rating schedule. Id. Here, the Veteran's disability is unlisted and rated by analogy. The record reflects that the Veteran's left and right fifth toe disabilities manifest with pain and are treated with custom orthotics. Specifically, on VA examination in October 2024 the Veteran reported pain along the lateral edge of his bilateral fifth toes with a sharper pain twice a day for minutes at a time caused by standing or sitting more than 30 minutes. He indicated a tingling feeling and increased pain if the toes rub against something. The examiner indicated that the condition does not chronically compromise weight bearing and does not significantly limit functional ability during a flare-up or after repeated use over time but does require shoe modification. The Board finds that the manifestations of the Veteran's left and right fifth toe disability are contemplated by the current 10 percent ratings assigned. The Board has considered Diagnostic Code 5254 for other foot injuries but finds that the Veteran's disability is limited to his toes and is most appropriately rated by analogy for hammer toes. There are no other distinct manifestations that would render a different Diagnostic Code more appropriate. Further, it does not more closely approximate a moderately severe foot disability, as would be required for a rating in excess of 10 percent. Based on the forgoing, ratings in excess of 10 percent for the Veteran's left and right fifth toe disabilities are denied. 3. Entitlement to a rating in excess of 10 percent for right hip strain with trochanteric pain syndrome, limitation of flexion The Veteran is seeking a higher rating for his right hip limitation of flexion. Currently, the Veteran has a noncompensable rating prior to July 27, 2024, and a 10 percent rating thereafter under Diagnostic Code 5252 for limitation of flexion of the thigh. 38 C.F.R. § 4.71a. Under Diagnostic Code 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, Diagnostic Code 5252. 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 DeLuca v. Brown, 8 Vet. App. 202 (1995); see also 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) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). On VA examination in April 2024, the Veteran's flexion was measured to 110 degrees with no additional loss of function or range of motion after three repetitions. The VA examiner further opined that the Veteran would have no additional functional loss with repeated use over time or during a flare-up. An April 2024 VA outpatient physical therapy evaluation indicated minimal limitation of hip flexion. On July 27, 2024, the Veteran was afforded another VA examination. At that time, his flexion was measured to 50 degrees with no additional loss of function or range of motion after three repetitions. The VA examiner opined that with repeated use over time the Veteran's flexion would be limited to 45 degrees and during a flare-up it would be limited to 40 degrees. The Board finds that the July 27, 2024, VA examination is the earliest evidence supporting a 10 percent rating, which requires flexion limited to at least 45 degrees. However, the examination weighs against a rating in excess of 10 percent, which requires flexion limited to at least 30 degrees. The Board finds that the evidence of record persuasively weighs against a compensable rating prior to July 27, 2024, and a rating in excess of 10 percent thereafter for limitation of flexion of the right thigh. Staged ratings are appropriate for an increased rating claim if the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. See Hart v. Mansfield, 21?Vet. App.?505 (2007). The Board acknowledges the Veteran's reports of right hip pain throughout the period on appeal; however, the degree of additional limitation reflected by the statements do not reflect that the Veteran had symptoms more nearly approximating flexion limited to at least 45 degrees prior to July 27, 2024, such that a 10 percent rating would be warranted for that period. On VA examination in April 2024, testing showed flexion to 110 degrees with the examiner opining no additional loss with repeated use or during a flare-up. Prior to July 27, 2024, the evidence does not support a worsening of the Veteran's condition such that the criteria for a compensable rating were warranted. The Board has considered whether the Veteran is entitled to a compensable rating for limitation of flexion based on painful motion alone prior to July 27, 2024. However, because the Veteran is already assigned compensable rating under Diagnostic Code 5253 for limitation of abduction of the right thigh, a separate, compensable rating under Diagnostic Code 5252 based on painful motion alone would result in impermissible pyramiding. 38 C.F.R. §§ 4.14, 4.59. The Board further finds that a rating in excess of 10 percent as of July 27, 2024, is not warranted. The Board acknowledges the Veteran's lay reports of symptoms, including that he has flare-ups and pain. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements do not reflect that the Veteran has symptoms more nearly approximating flexion limited to at least 30 degrees, as required for a rating in excess of 10 percent. Even considering flare-ups, the July 2024 VA examiner opined that the Veteran's right thigh flexion would be limited to no more than 40 degrees. The Board has also considered the other Diagnostic Codes pertaining to the hip and thigh. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). The Board notes that the Veteran has three separate ratings for his right hip: limitation of extension (noncompensable effective February 28, 2021), limitation of flexion (noncompensable effective February 28, 2021, and 10 percent effective July 27, 2024 under Diagnostic Code 5252), and limitation of abduction (20 percent under Diagnostic Code 5253 effective February 28, 2021). Based on the forgoing, the evidence is persuasively against an increased rating for right hip limitation of flexion, and the claim is denied. 4. Entitlement to a rating in excess of 10 percent for left hip strain with trochanteric pain syndrome, limitation of flexion The Veteran also appealed the rating assigned for his left hip limitation of flexion. The Veteran was granted service connection and a 10 percent rating for his left hip limitation of flexion effective July 27, 2024, under Diagnostic Code 5252 for limitation of flexion of the thigh. 38 C.F.R. § 4.71a. The Board notes that the Veteran has three separate ratings for his left hip: limitation of extension (noncompensable effective July 28, 2021, and 10 percent effective December 3, 2024, under Diagnostic Code 5251), limitation of flexion (10 percent effective July 27, 2024, under Diagnostic Code 5252), and limitation of abduction (20 percent effective February 28, 2021, and 10 percent effective December 31, 2024, under Diagnostic Code 5253). On VA examination in April 2024, the Veteran's left hip flexion was measured to 110 degrees with no additional loss of function or range of motion after three repetitions. The VA examiner further opined that the Veteran would have no additional functional loss with repeated use over time or during a flare-up. An April 2024 VA outpatient physical therapy evaluation indicated minimal limitation of hip flexion. On July 27, 2024, the Veteran was afforded another VA examination. At that time, his left hip flexion was measured to 50 degrees with no additional loss of function or range of motion after three repetitions. The VA examiner opined that with repeated use over time the Veteran's flexion would be limited to 45 degrees and during a flare-up it would be limited to 40 degrees. No other records reflecting range of motion of the left hip relevant to the period on appeal are in the evidentiary record for this appeal. The Board finds that the July 2024 VA examination is the most probative evidence as to the Veteran's left hip limitation of flexion. That examination supports a 10 percent rating, but no greater. The Board acknowledges the Veteran's lay reports of symptoms, including that he has flare-ups and pain. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements do not reflect that the Veteran has symptoms more nearly approximating flexion limited to at least 30 degrees, as required for a higher rating. Even considering flare-ups, the July 2024 VA examiner opined that the Veteran's left thigh flexion would be limited to no more than 40 degrees. In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's appeal for a rating in excess of 10 percent for left hip limitation of flexion. As the evidence of record persuasively weighs against a rating in excess of 10 percent, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). 5. Entitlement to a compensable rating for right hip strain with trochanteric pain syndrome, limitation of extension The Veteran is seeking a higher rating for limitation of extension due to his right hip strain with trochanteric pain syndrome. He currently has a noncompensable rating. The Board notes that the Veteran has three separate ratings for his right hip: limitation of extension, limitation of flexion (noncompensable effective February 28, 2021, and 10 percent effective July 27, 2024, under Diagnostic Code 5252), and limitation of abduction (20 percent under Diagnostic Code 5253 effective February 28, 2021). The Veteran's right hip limitation of extension is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5251. Under Diagnostic Code 5251, a maximum 10 percent rating is warranted for extension of the thigh limited to 5 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5251. Where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. On VA examination in July 2024, the Veteran's right thigh extension was tested as being limited to 20 degrees. He was noted not to have any additional loss of function or range of motion after three repetitions. The examiner estimated with repeated use over time, the Veteran's right thigh extension would be limited to 15 degrees. During a flare-up, the examiner estimated that extension would be limited to 10 degrees. As a compensable rating requires that extension of the thigh be limited to 5 degrees, the Board finds that the July 2024 VA examination does not support a compensable rating. There is no other evidence of record supporting that the Veteran had limitation of extension of the right thigh to 5 degrees or less during the period on appeal. The July 2024 VA examiner considered the Veteran's reports of pain and functional loss, including with repeated use over time and during flare-ups but opined that the Veteran would have limitation of extension to no less than 10 degrees. Thus, the Board finds that the criteria for a compensable rating are not met or more closely approximated. The Board has considered whether the Veteran is entitled to a compensable rating based on painful motion alone. Because the Veteran is assigned compensable ratings under Diagnostic Code 5252 and Diagnostic Code 5253, which apply to limitation of motion of the hip, a separate, compensable rating under Diagnostic Code 5251 based on painful motion alone would result in impermissible pyramiding (i.e., duplicate compensation for the same symptom/impairment, here, pain related to the service-connected right hip). 38 C.F.R. §§ 4.14, 4.59. In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's appeal for a compensable rating for right hip limitation of extension, and the claim must be denied. 6. Entitlement to a compensable rating for left hip strain with trochanteric pain syndrome, limitation of extension The Veteran is seeking a higher rating for his left hip limitation of extension. For the period on appeal, the Veteran has a noncompensable rating under Diagnostic Code 5251 for limitation of extension of the thigh. 38 C.F.R. § 4.71a. The Board notes that in a February 2026 rating decision, the Veteran was granted a 10 percent rating effective December 3, 2024; however, that decision is outside of the scope of this appeal. On VA examination in July 2024, the Veteran's right thigh extension was tested as being limited to 20 degrees. He was noted not to have any additional loss of function or range of motion after three repetitions. The examiner estimated with repeated use over time, the Veteran's right thigh extension would be limited to 15 degrees. During a flare-up, the examiner estimated that extension would be limited to 10 degrees. As a compensable rating requires that extension of the thigh be limited to 5 degrees, the Board finds that the July 2024 VA examination does not support a compensable rating. There is no other evidence of record supporting that the Veteran had limitation of extension of the left thigh to 5 degrees or less during the period on appeal. The July 2024 VA examiner considered the Veteran's reports of pain and functional loss, including with repeated use over time and during flare-ups but opined that the Veteran would have limitation of extension to no less than 10 degrees. Thus, the Board finds that the criteria for a compensable rating are not met or more closely approximated. The Board has considered whether the Veteran is entitled to a compensable rating based on painful motion alone. As the Veteran already has compensable ratings for other limitation of motion of his left hip, specifically limitation of flexion (10 percent effective July 27, 2024, under Diagnostic Code 5252) and limitation of abduction (20 percent effective February 28, 2021, and 10 percent effective December 31, 2024, under Diagnostic Code 5253), a separate, compensable rating under Diagnostic Code 5251 based on painful motion alone would result in impermissible pyramiding (i.e., duplicate compensation for the same symptom/impairment, here, pain related to the service-connected right hip). 38 C.F.R. §§ 4.14, 4.59. In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's appeal for a compensable rating for left hip limitation of extension, and the claim must be denied. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Christensen 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.