Citation Nr: 1754197
Decision Date: 11/28/17 Archive Date: 12/07/17

DOCKET NO. 04-41 561A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California

THE ISSUES

1. Entitlement to initial rating higher than 10 percent from August 1, 2003 to January 10, 2007, 20 percent from January 11 2007 to April 22, 2009; 60 percent from April 23, 2009 to February 20, 2017; and 10 percent since February 21, 2017 for degenerative disc disease (DDD), lumbosacral spine.

2. Entitlement to an initial rating higher than 10 percent from August 1, 2003 to April 26, 2009; and a compensable rating from April 27, 2009 for limited abduction due to left hip strain.

3. Entitlement to an initial rating higher than 20 percent from April 27, 2009 to February 20, 2017; and a compensable rating from February 21, 2017 for limited flexion due to left hip strain.

4. Entitlement to an initial compensable rating from April 27, 2009 to February 20, 2017; and a rating higher than 10 percent since February 21, 2017 for limited extension due to left hip strain.

5. Entitlement to total disability based on individual unemployability (TDIU).

REPRESENTATION

Appellant represented by: Disabled American Veterans

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

T. N. Shannon, Associate Counsel

INTRODUCTION

The Veteran had active service in the U.S. Navy from May 1996 to July 2003.

This matter initially comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2003, a February 2004 and a most recent August 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California.

The Veteran testified at a Board hearing before the undersigned in July 2014.

During the 2014 hearing, the Veteran testified that he had been unemployed for a portion of the appeal period, to include in 2009, and that he was laid off from a job because his employer did not think he would be able to travel as required for the position due to his back disability. As such, a claim for TDIU has been raised and is part of the appeal of the underlying disability ratings. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009); cf. 79 Fed. Reg. 57,696 (Sept. 25, 2014) (effective March 24, 2015) (revising 38 C.F.R. § 3.155 to require that a claim be filed on a standard VA form).

The Board previously remanded these issues in March 2016 for additional development and adjudication. The matter has been returned to the Board for further appellate consideration.

FINDINGS OF FACT

1. From August 1, 2003 to April 26, 2009, and since February 21, 2017 the Veteran’s DDD of the lumbosacral spine has been manifested by forward flexion limited to 30 degrees or less of forward flexion without ankylosis or neurologic impairment other than mild incomplete paralysis of the sciatic nerves prior to April 27, 2009 and moderate incomplete paralysis of those nerves beginning February 21, 2017.

2. From April 27, 2009 to February 20, 2017, the Veteran’s DDD of the lumbosacral spine with IVDS has been manifested by incapacitating episodes having a total duration of at least six weeks during the past twelve months, muscle spasms severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, without ankylosis of the entire spine.

3. From August 1, 2003 to April 26, 2009, the Veteran’s limited abduction left hip strain was manifested by, at worst, slightly limited motion and a subjective complaint of hip slipping which causes pain, without limitation of abduction beyond 10 degrees.

4. Since April 27, 2009, the Veteran’s limited abduction left hip strain was manifested by, at worst, painful abduction, moderate weakness, and poor propulsion with gait.

5. From April 27, 2009 to February 20, 2017, the Veteran’s limited flexion, left hip strain was manifested by, at worst, flexion of the thigh limited to 21 to 30 degrees.

6. Since February 21, 2017, the Veteran’s limited flexion, left hip strain was manifested by, at worst, painful motion of hip.

7. Since the period on appeal, the Veteran’s limited extension, left hip strain, has not warranted a higher rating on an extraschedular basis.

8. The Veteran is not rendered unemployable by his service connected disabilities.

CONCLUSIONS OF LAW

1. During the period from August 1, 2003 to April 26, 2009 and the criteria for a 40 percent rating for DDD, lumbosacral spine were met. 38 U.S.C.A. § 1155 (West 2014) (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5292, 5293, 5295 (2002 & 2003); DCs 5235-5243 (2017).

2. From April 23, 2009 to February 20, 2017 the criteria for an evaluation higher than 60 percent for the Veteran’s DDD, lumbosacral spine were not met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5292, 5293, 5295 (2003); DCs 5235-5243 (2017).

3. Since February 21, 2017 the criteria for a 40 percent rating for DDD, lumbosacral spine have been met. 38 U.S.C.A. § 1155 (West 2014) (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5292, 5293, 5295 (2003); DCs 5235-5243 (2017).

4. From August 1, 2003 to April 26, 2009, the criteria for an evaluation higher than 10 percent for the Veteran’s limited abduction, left hip strain were not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.67, 4.71a, Diagnostic Code 5253 (2017).

5. Since August 27, 2009 the criteria for an initial 10 percent rating for the Veteran’s limited abduction, left hip strain have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.67, 4.71a, Diagnostic Codes 5003, 5019 (2017).

6. From April 27, 2009 to February 20, 2017 the criteria for an evaluation higher than 20 percent for the Veteran’s limited flexion, left hip strain were not met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.67, 4.71a, Diagnostic Code 5252 (2017).

7. Since February 21, 2017 the criteria for an initial 10 percent rating for the Veteran’s limited flexion, left hip strain have not been met on the basis of painful hip motion. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.67, 4.71a, Diagnostic Code 5252 (2017).

8. From April 27, 2009 to February 20, 2017, the criteria for an evaluation higher than 10 percent for limited extension, left hip strain have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.67, 4.71a, Diagnostic Code 5251 (2017).

9. Since February 21, 2017, the criteria for an evaluation higher than 10 percent for the Veteran’s limited extension, left hip strain have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.67, 4.71a, Diagnostic Code 5251 (2017).

10. The criteria for TDIU have not been met. 38 U.S.C.A. § 1155; 38 C.F.R. § 3.344, 4.16 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.

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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7.

When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), 38 C.F.R. §§ 3.102, 4.3.

In the case of initial ratings, VA is required to consider whether staged ratings are warranted to compensate for variations in the disability since the effective date of service connection. Fenderson v. West, 12 Vet. App. 119 (1999).

For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995).

These provisions are not for consideration where, as in this case, the veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997).

In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id., quoting 38 C.F.R. § 4.40.

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).

The provisions of 38 C.F.R. 4.59 are meant to compensate a claimant whose pain does not cause enough limitation of motion in a joint to reach a compensable level; it is not for application where the claimant already has a compensable level of limitation of motion. Vilfranc v. McDonald, 28 Vet. App. 357, 361 (2017).

Degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, DC 5003. DC 5003 provides that when limitation of motion due to arthritis is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003.

Lumbar Spine (Initial Rating)

The rating criteria pertaining to spine disabilities were amended during the pendency of the Veteran’s claim, in September 2003. See 68 Fed. Reg. 51,454 (Aug. 27, 2003) (codified at 38 C.F.R. § 4.71a); see also corrections at 69 Fed. Reg. 32, 449 (June 10, 2004).

Pursuant to governing legal precedent, when a new statute is enacted or a new regulation is issued while a claim is pending before VA, VA must first determine whether the statute or regulation identifies the types of claims to which it applies. If the statute or regulation is silent, VA must determine whether applying the new provision to claims that were pending when it took effect would produce genuinely retroactive effects. If applying the new provision would produce such retroactive effects, VA ordinarily should not apply the new provision to the claim. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If applying the new provision would not produce retroactive effects, VA ordinarily must apply the new provision. See VAOPGCPREC 7-03, 69 Fed. Reg. 25,179 (November 19, 2003), citing to Landgraf v. USI Film Products, 511 U.S. 244 (1994).

Under the criteria in effect prior to September 2003 regulatory revisions (“old” criteria), DC 5291 provided a maximum 10 percent rating for severe limitation of the thoracic spine (characterized at that time as the dorsal spine). Slight limitation of motion of the thoracic spine warranted a noncompensable rating and moderate limitation of motion of the thoracic spine warranted a 10 percent rating under DC 5291.

Under DC 5292, a rating of 10 percent was assigned for slight limitation of lumbar spine motion. A 20 percent rating was for assignment for moderate limitation of lumbar motion. A rating of 40 percent required severe limitation of motion.

The Board notes that the old criteria did not define a normal range of motion for the lumbar spine. However, current regulations do establish normal ranges of motion for the thoracolumbar spine. See 38 C.F.R. § 4.71a, Plate V (2017). The supplementary information associated with the amended regulations state that the ranges of motion were based on medical guidelines in existence since 1984. See 67 Fed. Reg. 56,509 (Sept. 4, 2002). Therefore, the Board will apply the most recent September 2003 guidelines for ranges of motion of the spine to the old criteria.

Under former Diagnostic Code 5293, a 10 percent rating was warranted for mild intervertebral disc syndrome. A 20 percent rating was assignable for moderate intervertebral disc syndrome, recurring attacks, with intermittent relief. A 40 percent rating was warranted for severe intervertebral disc syndrome, recurring attacks, with intermittent relief. A 60 percent evaluation required pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy (i.e., with characteristic pain and demonstrable muscle spasm and an absent ankle jerk or other neurological findings appropriate to the site of the diseased disc) and little intermittent relief. 38 C.F.R. § 4.71a, DC 5293.

Diagnostic Code 5295, as in effect prior to September 26, 2003, provided a 20 percent evaluation for lumbosacral strain with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position. A 40 percent evaluation was for application for severe lumbosacral strain, with listing of the whole spine to the opposite side, positive Goldthwaite’s sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. 38 C.F.R. § 4.71a, DC 5295 (2003).

The revised General Rating Formula for Diseases and Injuries of the Spine provides that for DCs 5235 to 5243, a rating of 100 percent is warranted when there is unfavorable ankylosis of the entire spine. A 50 percent rating is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating is warranted when there is unfavorable ankylosis of the cervical spine, forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 30 percent is warranted for forward flexion of the cervical spine to 15 degrees or less or favorable ankylosis of the entire cervical spine. A 20 percent rating is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees, a combined range of motion of the cervical spine that is not greater than 170 degrees, or if the spine disability is manifested by muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.

The General Formula also includes the following notes:

Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.

Note (2): For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.

Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner’s assessment that the range of motion is normal for that individual will be accepted.

Note (4): Round each range of motion measurement to the nearest five degrees.

Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.

Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability.

Under the revised criteria IVDS (preoperatively or postoperatively) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table).

The Formula for Rating IVDS Based on Incapacitating Episodes provides for a 60 percent rating when there are incapacitating episodes of IVDS having a total duration of at least six weeks during the past 12 months. A 40 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least four weeks, but less than six weeks during the past 12 months. A 20 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least two weeks, but less than four weeks during the past 12 months.

An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. An evaluation can be had either on the total duration of incapacitating episodes over the past 12 months or by combining separate evaluations of the chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities under 38 C.F.R. § 4.25, whichever method resulted in the higher evaluation.

Summarizing the pertinent evidence with the above criteria in mind, x-ray findings conducted back in April 2003 show the Veteran had severe DDD of the lumbar spine. A June 2003 VA treatment record reports the Veteran had been complaining of lower back pain ever since rowing back at the military academy. The record states the Veteran experienced right lumbar pain when sitting or standing for prolonged periods.

In March 2004, the Veteran had a VA examination of his lumbar spine. Range of motion testing of the lumbar spine showed 90 degrees of flexion, 25-30 degrees of extension, 25-30 degrees of lateral bending and 25-30 degrees of left and right rotation. Pain was noted at the end of range of motion. His back was tender at the lumbar pavertebral muscles. He experienced trigger points in his left gluteus maximus muscle. He had no neurological manifestations. The examiner reported pain, limited range of motion, muscle weakness and limited function. The examiner’s findings were “anterior head carriage, slump posture, hypolordosis in lumbar spine, limited AROM in cervical and lumbar spine, movement impairment in all lumbar ranges of motion, most noted in lumbar flexion, weakness of core trunk stabilizers, poor tolerance for lumbar facetal loading and hypertonicity most noted in lumbar paravertebrals and left, greater than right musculature.” See March 2004 VA Examination of Lumbar Spine at page 10.

A January 2007 VA treatment record reflects a decrease in the Veteran’s range of motion, with flexion limited to 45 degrees, along with painful motion during the examination. This examination was negative for ankylosis.

The Veteran had a VA examination in April 2009. At that time, he reported that once a month he had to lie down in bed for a week in order to be able to get out of bed to walk and function. See April 27, 2009 VA Treatment Record at page 7. The Veteran reported severe pain in the lumbar area radiating down both legs to below the knees. The examiner reported no reverse lordosis, no ankylosis of the thoracolumbar or entire spine, along with no kyphosis. However, it was noted the Veteran’s gait was abnormal as he “walks slowly and hesitantly.” Id. at page 8.

The Veteran testified at a board hearing in March 2014 that he had sought continuous treatment for his back and hip. He reported that he was walking with a cane and had to sit on a “disk” while at his work desk. The Veteran testified that he felt more pain than before but that he could not differentiate between the pain in his hip and his back. He reported that when attempting to loosen his back muscles the pain almost caused him to cry. He described the pain when bending over as shirring and that the pain begins in his back and radiates down his legs. See March 2014 Hearing Transcript at page 19.

The Veteran also testified that his back and hip pain has affected his employment. The Veteran reported he believed he was laid off because he was not fit for airplane travel and because he walked with a cane. “So basically it makes it easier when they’re laying people off to lay off those type of people that don’t fit the mold. And so I was laid off from a job that was-it wasn’t directly related to my disability but they’re like this guy needs to go on airplanes, he needs to travel and we’re not sure if he can continue doing this because of these issues.” Id. at page 7.

At the most recent VA examination of the spine conducted in March 2017, the Veteran reported mild tenderness in his lower back. His range of motion testing for the lumbar spine showed 70 degrees of flexion, 25 degrees of extension; 20-25 degrees of lateral bending and 20-25 degrees of left and right rotation. Pain was noted for each range of motion tested and pain was noted with weight bearing. No muscle spasms were reported. The Veteran reported additional limitation of motion due to pain during flare-ups and the examiner found that there was significant limitation during flare-ups.

The Court has recently emphasized the duty of VA examiners to estimate the additional limitation of motion that would occur during flare-ups.
Sharp v. Shulkin, 29 Vet. App. 26 (2017). None of the examiners in this case have attempted to provide that estimate. They have; however documented that there is significant limitation due to flare-ups. These descriptions would appear to approximate the maximum rating for limitation of motion which is 40 percent under the old and new rating criteria. Accordingly a 40 percent rating is warranted from the effective date of service connection, except for the period when the 60 percent rating was in effect. As noted the provisions of 38 C.F.R. §§ 4.40, 4.45 are not applicable where the maximum rating based on limitation of motion has been awarded and the next higher rating requires ankylosis. Johnston,

The March 2004 and February 2017 VA examinations; and the January 11, 2007 VA treatment report each failed to reveal any evidence of ankylosis. Although the Veteran has reported periods of having to lie down, there have been no reports of the spine fixed at an unfavorable angle.

The April 2009 VA examination has been evaluated under the old rating criteria. The Veteran was found to have IVDS and the Veteran reported being bedridden for a week out of every month, for one year, in order to be able to walk and function. Therefore the under the old DC 5293, the Veteran’s 60 percent rating is appropriately considered and the Veteran has been assigned the highest schedular rating by the RO.

The 60 percent rating was provided under the old rating criteria that provided a maximum rating for the combined neurologic and orthopedic manifestations of intervertebral disc disease. Prior to the effective date of that rating the Veteran was granted separate 10 percent ratings for radiculopathy of each lower extremity as neurologic manifestations of the back disability and separate 20 percent ratings were provided for the period after the end of the 60 percent rating.

The 10 percent rating contemplated mild incomplete paralysis of each sciatic nerve and the 20 percent ratings contemplate moderate incomplete paralysis in each nerve. Examinations have shown normal neurologic findings with the most recent examination reporting no radiculopathy. The positive findings have been largely subjective. There have been no reports of other neurologic impairment associated with the back disability. Accordingly, the evidence is against additional or higher ratings for the back disability on this basis.

Moreover, as the evidence for the period in question did not indicate vertebral fracture or ankylosis, a higher evaluation is not warranted under 38 C.F.R. § 4.71a, DCs 5285, 5286, or 5289 (2002) for the aforementioned periods.

The Veteran’s history and symptom reports have been considered, including as presented in the medical evidence discussed above, and have been contemplated by the disability ratings that have been assigned and granted herein. Moreover, the competent medical evidence offering detailed specific findings pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms of the service connected manifestations at issue. As such, while the Board accepts the Veteran’s testimony with regard to the matters he is competent to address, the Board relies upon the competent medical evidence with regard to the specialized evaluation of functional impairment, symptom severity, and details of clinical features of the service connected manifestations at issue.

The Board has resolved reasonable doubt in the Veteran’s favor in awarding the 40 percent ratings for the periods when the 60 percent rating was not in effect. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7; Gilbert.

Left Hip Strain, Limited Abduction, Extension, Flexion (Increased Rating)

Hip disabilities are rated under DCs 5250 through 5255, with 5251, 5252, and 5253. As discussed below, other DCs for rating the hips-DC 5250 for ankylosis, DC 5254 for hip flail joint, and DC 52555 for impairment of the femur-do not provide a basis for higher ratings in this case.

Under DC 5251, a 10 percent disability rating may be assigned for disabilities marked by thigh extension limited to 5 degrees. Id.

Under DC 5252, a 10 percent rating is warranted where hip flexion is limited to 45 degrees. A 20 percent disability rating is warranted where flexion is limited to 30 degrees; 30 percent where flexion is limited to 20 degrees; and 40 percent where flexion is limited to 10 degrees. Id.

Under DC 5253, which considers impairment of the thigh, a 10 percent disability rating is assigned where there is limitation of rotation of the leg, with inability to toe-out more than 15 degrees. A 10 percent disability rating may also be assigned where the disability is manifested by limitation of adduction of the leg, with the inability to cross the legs. A 20 percent maximum schedular disability rating is appropriate where there is inability to abduct beyond 10 degrees. Id.

The normal range of hip flexion is from 0 to 125 degrees and the normal range of hip abduction is from 0 to 45 degrees. 38 C.F.R. § 4.71, Plate II (2017).

Assigning multiple ratings based on the same symptoms or manifestations of a disability constitutes prohibited pyramiding. 38 C.F.R. § 4.14. However, the Board finds that assigning separate ratings based on limitation of extension, flexion, adduction and rotation of the hip under DC 5251, 5252 and 5253 would not amount to pyramiding under 38 C.F.R. § 4.14. Separate ratings under different diagnostic codes may be assigned where “none of the symptomatology for any of [the] conditions is duplicative of or overlapping with the symptomatology of the other … conditions.” Estaban v. Brown, 6 Vet. App. 259 (1994).

Here, the key consideration has been met, in that limitation of extension, flexion, adduction, and rotation concern excursions of movements in different planes, and these limitations therefore constitute different bases for rating the hip. See 38 C.F.R. § 4.45. If these limitations are demonstrated, they must be rated separately to adequately compensate for functional loss associated with the service-connected hip disability. See 38 C.F.R. § 4.40; see also VAOPGCPREC 9-2004 (separate ratings may be assigned for disability of the same joint where veteran has both limitation of flexion and limitation of extension of same leg).

February 2007 VA treatment records show the Veteran complained stating “my left hip popped out yesterday” however, ER x-rays were unremarkable. See February 2007 VA Treatment Record at page 18. The examination of the Veteran’s hip revealed tenderness on palpation of the lateral hip in area of greater trochanter. The Veteran was treated with nonsteroidal anti-inflammatory medication and heat packs. No range of motion testing was done during this treatment visit. The Veteran denied any bowel or bladder complaints. He stated the only relief he received was from structured physical therapy and massage.

In April 2009, the Veteran had a VA examination for his left hip disability. At that time range of motion testing for his left hip showed left and right flexion of 0-25 degrees, left and right extension of 0-25 degrees and left and right abduction from 0-20 degrees. The Veteran was able to successfully cross his right leg over his left, and his left leg over his right. He was also able to toe out at 15 degrees. The examiner noted objective evidence of pain with active motion on both the right and left during range of motion testing. It was noted the Veteran walked with a cane and had poor propulsion with his gait. Moderate weakness was also reported.

In the July 2014 Board hearing, the Veteran testified about seeing a physical therapist and yoga instructor for relief from his hip (and back) pain.

The Veteran had another VA examination in February 2017. A physical examination of range of motion testing for his left hip showed flexion to 110 degrees, extension to 25 degrees, right and left lateral flexion to 25 degrees, left and right lateral rotation to 25 degrees. During flare-ups each range of motion was decreased by 5 degrees. Pain was noted during all range of motion testing, including passive range of motion. The examiner noted there was less movement than normal. The Veteran’s abduction was not limited in a way that prevented him from crossing his legs.

The Veteran has experienced varying levels of his hip disability during the course of this appeal. Accordingly, staged ratings are necessary to accurately rate the level of disability during different periods of time.

The Board will consider the period from August 1, 2003 to April 26, 2009. In February 2007, the Veteran complained continuously about chronic hip pain and of an incident where his hip “popped out of place”. Although, no range of motion testing was conducted, the Veteran’s complaint about this his hip popping out of place is credible to assist in the determination of the severity of his left hip strain disability. There is no evidence during this time period that the Veteran’s limited abduction, left hip strain was manifested by an inability to abduct beyond 10 degrees.

The Board will move forward to the period from April 27, 2009 to February 20, 2017. The April 2009 VA examiner reported the Veteran’s abduction was limited to 20 degrees, flexion to 25 degrees and extension to 25 degrees. The examiner also reported painful abduction, objective evidence of pain with active motion and poor propulsion with the Veteran’s gait. Additionally, it was noted that the Veteran walked with the use of cane. There is no evidence the Veteran’s limited abduction of the left hip was manifested by an inability to abduct beyond 10 degrees during this period. During this period, there was no evidence the Veteran’s limited flexion of the left hip was manifested by flexion limited to 20 degrees. The Veteran has received the highest rating possible for limited extension of the left hip during this time period. (Consideration of extraschedular ratings is discussed later in the opinion.)

Since February 21, 2017, the Veteran’s limited abduction and limited flexion of the left hip has been manifested by pain and less movement than normal. For this period, there is no evidence the Veteran’s limited abduction of the left hip has been manifested by an inability to abduct beyond 10 degrees or that the limited flexion of his left hip was manifested by flexion limited to 30 degrees. The Veteran has received the highest rating possible for limited extension of the left hip during this period.

As such, the benefit of the doubt doctrine is not applicable with respect to the following matters; entitlement to a rating in excess of 10 percent for limited abduction, left hip strain from the period of August 1, 2003 to April 26 2009; a rating in excess of 20 percent for limited flexion, left hip strain for the period beginning April 27, 2009 to February 20, 2017; and a rating in excess of 10 percent for limited extension, left hip strain on an extraschedular basis for the period from April 27, 2009 must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7; Gilbert.

However, affording the Veteran the benefit of the doubt with respect to the following matters; entitlement to a compensable rating for limited abduction, left hip strain since April 27, 2009; and a compensable rating for limited flexion, left hip strain from the period beginning February 21, 2017 are granted. Id.

TDIU

Entitlement to a total rating based on individual unemployability (TDIU) is potentially an element of all claims for increased rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). To raise such a claim as part of a claim for increase, there must be evidence of unemployability. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). In this case, the Veteran, during the March 2014 videoconference hearing, testified that he had been laid off, he believed, indirectly due to his service connected disabilities. The Veteran testified, “So basically it makes it easier when they’re laying people off to lay off those type of people that don’t fit the mold. And so I was laid off from a job that was-it wasn’t directly related to my disability but they’re like this guy needs to go on airplanes, he needs to travel and we’re not sure if he can continue doing this because of these issues.” See March 2014 Hearing Transcript at page 7. Although the Veteran suspects his service connected disabilities played a role in his being laid off, he acknowledges that the layoffs were triggered by other business considerations.

During the Veteran’s April 2009 VA examination, the Veteran reported that every month for the past year, the Veteran had to lie down in bed for up to a week in order to get up, walk and function. However, in a most recent VA examination in February 2017, the examiner noted that the Veteran can perform any type of occupational task without significant restrictions. The examiner further noted that the Veteran is limited by having to avoid excess standing, walking, squatting, or climbing due to his hip and back. See February 2017 VA Examination Hip/Thigh at page 19. The Veteran did not report any frequent hospitalizations or prolonged absences from work during the examination. The Veteran is service connected for conjunctivitis. No functional impairment has been noted due to his eyes.

VA contacted the Veteran in September 2016 notifying him of the requirements needed to establish entitlement to TDIU. No response has been received by VA. The Veteran has offered no other evidence which shows unemployability or that he is unable to secure or follow a substantially gainful occupation as a result of his service connected disabilities. 38 C.F.R. § 4.169a. Thus, any further consideration of TDIU is not warranted. The benefit of the doubt doctrine is not for application, and the claim must be denied. See 38 U.S.C.A. § 5107b.

ORDER

Entitlement to an initial rating of 40 percent for DDD of the lumbosacral spine from August 1, 2003 to April 26, 2009 and since February 20, 2017 is granted.

Entitlement to an initial rating in excess of 60 percent for DDD of the lumbosacral spine from April 27, 2009 to February 20, 2017 is denied.

Entitlement to an initial rating in excess of 10 percent for limited abduction, left hip strain from August 1, 2003 to April 26, 2009 is denied.

Entitlement to an initial compensable rating of 10 percent for limited abduction, left hip strain since April 27, 2009 has been met.

Entitlement to an initial rating in excess of 20 percent for limited flexion, left hip strain from April 27, 2009 to February 20, 2017 is denied.

Entitlement to an initial compensable rating of 10 percent for limited flexion, left hip strain since February 21, 2017 has been met.

Entitlement to an initial rating in excess of 10 percent for limited extension, left hip strain on an extraschedular basis is denied.

Entitlement to a total disability rating based on individual unemployability is denied.

______________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans’ Appeals

Department of Veterans Affairs

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