HIP IMPAIRMENT OF

V. CHIAPPETTA · 2024 · Case ID: 24012537

MIXED

Summary

The Veteran, an Army Veteran who served from January 2008 to May 2015, including service in Southwest Asia and earning the Combat Action Badge, appeals the denial of higher disability ratings for his right hip condition. The Board reviewed the Veteran's claims for an increased rating for limitation of flexion, limitation of extension, and impairment of the thigh, all related to his right hip trochanteric pain syndrome. The Veteran's hip disability has been rated at 10 percent for limitation of flexion and 0 percent for limitation of extension and impairment of the thigh. The Veteran contended that a higher rating was warranted, citing pain, tightness, and functional limitations, particularly during flare-ups. The Board considered four VA examinations conducted between July 2015 and January 2023, noting inconsistencies in the Veteran's reported flare-up frequency and severity, and in the examiners' findings regarding functional limitations and range of motion during flare-ups. The Board found that the evidence did not support a rating higher than 10 percent for limitation of flexion, as the Veteran's flexion never limited to 45 degrees or less, even during flare-ups. For limitation of extension, the Board found the evidence persuasively against a compensable rating, as extension was never limited to 5 degrees or less, and a higher rating would constitute pyramiding. However, resolving reasonable doubt in the Veteran's favor, the Board granted an initial 10 percent rating for impairment of the thigh, based on the Veteran's reported difficulty crossing his legs, as supported by one VA examiner's findings. The Board found no basis for higher ratings under any of the cited diagnostic codes.

Rationale

Flexion never limited to 45 degrees or less; Current 10 percent rating based on painful motion under DC 5252; Evidence does not support rating in excess of 10 percent

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

5252

Docket No.

17-56 815

Full Decision Text

Citation Nr: 24012537
Decision Date: 03/25/24 Archive Date: 03/25/24

DOCKET NO. 17-56 815
DATE: March 25, 2024

ORDER

An initial rating in excess of 10 percent for trochanteric pain syndrome of the right hip (right hip disability) based on limitation of flexion is denied.

An initial compensable rating for a right hip disability based on limitation of extension is denied.

An initial 10 percent rating, and no higher, for a right hip disability based on impairment of the thigh is granted.

FINDINGS OF FACT

1. For the entire period on appeal, the Veteran's right hip disability has been manifested by painful motion; the evidence is persuasively against a finding that it has ever been manifested by limitation of flexion to 45 or less, even when considering functional impairment as a result of repeated use over time and/or during flareups.

2. For the entire period on appeal, the evidence is persuasively against a finding that the Veteran's right hip disability has been manifested by extension limited to 5 degrees, even when considering functional impairment as a result of repeated use over time and/or during flareups.

3. During the appeal period, it is at least as likely as not that the Veteran's right hip adduction has been limited such that the Veteran cannot cross his legs; the evidence is persuasively against a finding that limitation of abduction has been limited such that motion is lost beyond 10 degrees for any portion of the appeal period.

CONCLUSIONS OF LAW

1. The criteria for an initial rating in excess of 10 percent for right hip trochanteric pain syndrome based on limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5252.

2. The criteria for an initial compensable rating for right hip trochanteric pain syndrome based on limitation of extension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5251.

3. Resolving reasonable doubt in the Veteran's favor, the criteria for an initial 10 percent rating, and no higher, for right hip trochanteric pain syndrome based on impairment of the thigh have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5253.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the U.S. Army from January 2008 to May 2015, to include service in Southwest Asia. His decorations include the Combat Action Badge.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In its rating decision, the RO granted service connection for a right hip disability and assigned an initial 0 (zero) percent, noncompensable rating. In a July 2022 rating decision, during the pendency of the present appeal, the RO increased the rating for the Veteran's right hip disability based on limitation of flexion from 0 (zero) to 10 percent for the entire period on appeal. It also granted service connection for a right hip disability based on limitation of extension and impairment of the thigh, assigning 0 (zero) percent, noncompensable ratings for each separate award of service connection. While supplemental statements of the case (SSOCs) issued in July 2022, November 2022, and August 2023 did not characterize the additional two awards of service connection addressed in the July 2022 rating decision as separate issues, the SSOCs all addressed why separate, higher ratings were not warranted based on limitation of extension, impairment of the thigh, or any other basis. In this regard, the Board finds that issues for increased ratings for each of the awards of service connection based on the Veteran's right hip disability are presently on appeal. In any event, the Board is required to address whether separate and/or higher ratings for the Veteran's right hip disability are warranted on any basis.

In November 2021, the Veteran testified at a virtual Board hearing before the undersigned. A transcript of that hearing has been associated with the record.

This case was previously before the Board in March 2022, September 202
July 2022 rating decision as separate issues, the SSOCs all addressed why separate, higher ratings were not warranted based on limitation of extension, impairment of the thigh, or any other basis. In this regard, the Board finds that issues for increased ratings for each of the awards of service connection based on the Veteran's right hip disability are presently on appeal. In any event, the Board is required to address whether separate and/or higher ratings for the Veteran's right hip disability are warranted on any basis.

In November 2021, the Veteran testified at a virtual Board hearing before the undersigned. A transcript of that hearing has been associated with the record.

This case was previously before the Board in March 2022, September 2022, and January 2023, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. On each occasion, the Board remanded the claim for a new VA examination that adequately addressed the Veteran's contentions with respect to flareups. Following the Board's January 2023 remand, and still in that same month, the AOJ afforded the Veteran a new VA examination that adequately addresses the Veteran's contentions with respect to flareups. As such, the Board finds that the AOJ has at least substantially complied with its prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998).

1. Entitlement to an initial rating in excess of 10 percent for a right hip disability based on limitation of flexion

2. Entitlement to an initial compensable rating for a right hip disability based on limitation of extension

3. Entitlement to an initial compensable rating for a right hip disability based on impairment of the thigh

As noted, the Veteran's right hip disability has been rated as 10 percent disabling based on limitation of flexion, and 0 (zero) percent, non-compensably disabling based on limitation of extension and impairment of the thigh. In his November 2017 substantive appeal, he stated that he believed that his right hip disability should be rated as at least 10 percent disabling. However, more recently, to include in an October 2023 post-remand brief, he contended that a higher rating than that assigned was warranted.

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. § 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.

A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). As in the instant case, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Id. at 126.

The Veteran's hip disability is rated pursuant to DCs 5251 (limitation of extension), 5252 (limitation of flexion), and 5253 (impairment of the thigh). DCs relating to musculoskeletal disabilities were revised during the pendency of the present appeal, effective February 7, 2021. However, no revisions were made as to hip disabilities that are pertinent to the present appeal.

DC 5251 provides for a maximum 10 percent rating for hip extension limited to 5 degrees. 38 C.F.R. § 4.71a, DC 5251.

DC 5252 provides for a 10 percent rating for hip flexion limited to 45 degrees; a 20 percent rating for hip flexion limited to 30 degrees; a 30 percent rating for hip flexion limited to 20 degrees; and a maximum 40 percent rating for hip flexion limited to 10 degrees. 38 C
disabilities were revised during the pendency of the present appeal, effective February 7, 2021. However, no revisions were made as to hip disabilities that are pertinent to the present appeal.

DC 5251 provides for a maximum 10 percent rating for hip extension limited to 5 degrees. 38 C.F.R. § 4.71a, DC 5251.

DC 5253 provides for a 10 percent rating for limitation of motion (cannot toe-out more than 15 degrees for the affected leg) or for limitation of adduction (cannot cross legs); and a 20 percent rating for limitation of abduction when motion is lost beyond 10 degrees. 38 C.F.R. § 4.71a, DC 5253.

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). 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.").

To the extent that the evidence does not show evidence of ankylosis, flail joint issues, or impairment of the femur, the Board will not further consider the applicability of DCs 5250, 5254 and 5255.

In every instance 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.

The Veteran filed his claim for service connection in March 2015, when he was still in service. He was afforded a VA examination in connection with his claim in July 2015. The examiner found that the Veteran had right hip trochanteric pain syndrome and noted his report that he had experienced hip tightness and discomfort after sprints, had received a steroid injection, and that the condition had improved but that he still had some discomfort. He did not report flareups of the hip or thigh, nor did he report any specific functional impairment. Range of motion testing was all normal, with no evidence of pain with weight-bearing, though he did have tenderness to palpation of the right greater trochanter. There was no objective evidence of crepitus, and the Veteran was able to perform repetitive use testing with no additional loss of range of motion after three repetitions. The examiner indicated that pain, weakness, fatigability, and/or incoordination did not significantly limit functional ability with repeated use over time. He indicated further that there were no additional contributing factors of disability, and that the Veteran's strength was full, with no atrophy, ankylosis, or surgery, and that he did not use an assistive device. He indicated further that the condition did not impact his ability to work, but noted under the remarks section that the functional limitation was secondary to pain with repetitive use but with preserved range of motion.

A September 2015 VA treatment record shows that examination of his joints, including his hips, was normal, with no swelling, joint pain, or limitation in range of motion.

In his July 2016 notice of disagreement, the Veteran stated that he experienced frequent pain and tightness in his right hip which limited mobility and life, such as laying on the floor with his daughter and
and that the Veteran's strength was full, with no atrophy, ankylosis, or surgery, and that he did not use an assistive device. He indicated further that the condition did not impact his ability to work, but noted under the remarks section that the functional limitation was secondary to pain with repetitive use but with preserved range of motion.

A September 2015 VA treatment record shows that examination of his joints, including his hips, was normal, with no swelling, joint pain, or limitation in range of motion.

In his July 2016 notice of disagreement, the Veteran stated that he experienced frequent pain and tightness in his right hip which limited mobility and life, such as laying on the floor with his daughter and even with walking. In a November 2017 non-VA treatment record, he stated that his hip was worse with extended exercise and with kneeling in church, and that his pain was occasionally worse with laying on a hard surface. On examination at that time, range of motion of the right hip was entirely normal, strength was full and there was no tenderness, swelling, crepitus, or other deformity.

In his November 2017 substantive appeal, the Veteran stated that if he did more than a couple of miles or longer amounts on the elliptical, his right hip became stiff, reducing his range of motion, and that at times, even without exercise, his hip would flareup, causing him not to be able to hold his legs in certain positions or to have issues with daily activities such as going up stairs, walking with his family, or laying down on the floor with his daughter. He added that he had trouble crossing his legs for longer periods and kneeling at church. At the November 2021 hearing, he testified that some weeks his hip felt good and that he barely noticed it, but that in other weeks, it was pretty noticeable.

In its March 2022 remand, the Board found that a new VA examination that specifically addressed flareups was warranted given the Veteran's statements as to flareups as set forth in his November 2017 substantive appeal.

The Veteran was afforded a second VA examination in May 2022. The examiner noted his report that his pain was recurrent and most prominent with prolonged ambulation, prolonged sitting with more applied weight on the right, and the need to shift positions. The examiner also noted that the Veteran did not report flareups and did not report any specific functional loss or functional impairment, including but not limited to after repeated use over time. On initial range of motion testing, the Veteran had flexion to 120 degrees, extension to 25 degrees, abduction to 35 degrees, adduction was full at 25 degrees, external rotation to 50 degrees, and internal rotation to 35 degrees. The Board notes that full flexion is 125 degrees, full extension is 30 degrees, full abduction is 45 degrees, full adduction is 25 degrees, full external rotation is 60 degrees, and full internal rotation is 40 degrees. The Veteran had pain on flexion and external rotation, and the examiner indicated that limitation in adduction did not prevent him from crossing his legs. Passive range of motion was the same as active, and there was no objective evidence of crepitus, or localized tenderness to palpation. The Veteran was able to perform repetitive use testing with no additional loss of function or range of motion after three repetitions. The examiner indicated that pain, weakness, fatigability, and/or incoordination did not significantly limit functional ability with repeated use over time and indicated that there were no additional factors contributing to the disability. Left hip (the opposite, undamaged joint) range of motion and all other findings as to the left hip were normal. There was no atrophy, ankylosis, or flail hip joint noted, and there was no surgery or any other pertinent findings. The examiner indicated that the Veteran did not use an assistive device, and indicated that diagnostic testing showed no degenerative or posttraumatic arthritis.

In an August 2022 post-remand brief, the Veteran's representative contended that the Veteran had incapacitating attacks of pain, limited range of motion, functional loss due to weakness, fatigability, incoordination, and/or pain on movement of the joint, including during flareups.

In its September 2022 remand, the Board found that the May 2022 VA examiner failed to provide any responses as to flareups and functional loss, even where he was specifically asked to address that evidence in the Board's March 2022 remand. The Board also noted that the Veteran again endorsed flareups in the August 2022 post-remand brief, and that a new VA examination was therefore warranted.

The Veteran was afforded a third VA examination in October 2022. The examiner noted that his current symptoms were reported as
attacks of pain, limited range of motion, functional loss due to weakness, fatigability, incoordination, and/or pain on movement of the joint, including during flareups.

The Veteran was afforded a third VA examination in October 2022. The examiner noted that his current symptoms were reported as tightness and pain with prolonged standing and walking, and that he was unable to lay on one side. The Veteran reported flareups as increased pain and stiffness with sitting or standing for long periods. He reported the frequency of flareups as once a week for 1 to 2 hours, and that precipitating factors were prolonged sitting or spending more than 45 minutes on an elliptical, and that alleviating factors were stretching, using muscle cream, and resting. He also stated that during a flareup he would have a slight limp. On examination, the Veteran had flexion to 100 degrees, extension to 20 degrees, abduction to 25 degrees, adduction to 20 degrees, external rotation to 40 degrees, and internal rotation to 30 degrees. He had pain with all ranges of motion tested, and the examiner indicated that limitation in adduction prevented the Veteran from crossing his legs. There was no objective evidence of crepitus, but there was tenderness to palpation. The examiner stated that he was unable to perform repetitive use testing for fear of pain, but indicated that pain significantly limited functional ability with repeated use over time and during flareups. However, as to estimates of range of motion on repeated use over time and during flareups, he estimated that range of motion would be the same as on initial testing for active range of motion. He added that additional contributing factors of disability included less movement than normal, weakened movement, and interference with sitting. There was no atrophy, ankylosis, or surgery, nor any other pertinent findings, including as to flail joint. The Veteran was not noted to use an assistive device, and imaging done at the time of the examination revealed normal bilateral hips. The examiner also noted that passive range of motion was not performed, as it was medically contraindicated as it might cause the Veteran severe pain or risk of further injury and pain.

In its January 2023 remand, the Board found that the October 2022 VA examiner's findings appeared to be contradictory inasmuch as the examiner found that pain limited functional ability during flareups and after repeated use over time, and was so significant that passive range of motion could not be performed, yet then estimated the same range of motion loss during repetitive use and flareups as during the period of non-flareup/repetitive use. The Board therefore again remanded the claim for a new VA examination.

The Veteran was afforded a fourth VA examination in January 2023. The examiner noted his report that flareups occurred every 6 weeks, that they were mild to severe depending on activity, and that they lasted a day or two. The Veteran reported functional impairment as difficulty with running or walking long distances, doing physical activities while standing, difficulty rising from a seated position, an inability to sleep on one side, that he could no longer run and instead had to use the elliptical at the gym, and that a severe flareup could cause him to limp on the right side. On examination of the right hip, he had flexion to 100 degrees, extension to 25 degrees, abduction to 25 degrees, adduction to 15 degrees, external rotation to 30 degrees, and internal rotation to 20 degrees. Testing was also performed on the left hip, with no abnormal findings. The examiner indicated that the Veteran had pain with all ranges of motion tested on the right hip except for adduction and added that adduction did not prevent the Veteran from crossing his legs. Passive range of motion was the same as active for both hips, and the Veteran had pain in passive range of motion with extension and abduction. The examiner indicated that there was evidence of pain with weight-bearing, non-weight-bearing, and in active and passive motion that caused functional loss as reported by the Veteran. There was no objective evidence of crepitus, but there was tenderness to palpation. The Veteran was able to perform repetitive use testing with no additional loss of range of motion after three repetitions. The examiner found that pain, weakness, fatigability, and/or incoordination did not significantly limit functional ability with repeated use over time. He found that pain, fatigability,
uction did not prevent the Veteran from crossing his legs. Passive range of motion was the same as active for both hips, and the Veteran had pain in passive range of motion with extension and abduction. The examiner indicated that there was evidence of pain with weight-bearing, non-weight-bearing, and in active and passive motion that caused functional loss as reported by the Veteran. There was no objective evidence of crepitus, but there was tenderness to palpation. The Veteran was able to perform repetitive use testing with no additional loss of range of motion after three repetitions. The examiner found that pain, weakness, fatigability, and/or incoordination did not significantly limit functional ability with repeated use over time. He found that pain, fatigability, and weakness did, however, significantly limit functional ability with flareups. The examination did not occur during a flareup, but the examiner estimated that range of motion during a flareup would be flexion limited to 95 degrees, extension limited to 20 degrees, abduction limited to 20 degrees, adduction limited to 10 degrees, external rotation limited to 25 degrees, and internal rotation limited to 15 degrees. He added that limitation of adduction did not prevent the Veteran from crossing his legs, and that additional contributing factors of disability included weakened movement, and interference with sitting and standing. There was no atrophy, ankylosis, or malunion or flail hip joint, and there was no surgery or other pertinent findings. The Veteran did not use an assistive device, and the examiner found that the impact on work would be the same limitations as reported by the Veteran at the beginning of the examination.

Upon review of the above, the Board finds that an initial rating in excess of 10 percent based on limitation of flexion under DC 5252 is not warranted for any portion of the appeal period. Here, the Veteran's initial 10 percent rating was assigned based on the presence of painful motion under DC 5252 for limitation of flexion. The examination reports of record show the presence of a noncompensable level of hip limitation of flexion. Flexion has never been limited to 45 degrees or less, even when fully considering repeated use over time and during flareups. The Veteran's right hip flexion has been limited, at worst, to be estimated at 95 degrees during a flareup. Still further, the Veteran has reported varying frequencies and durations of his flareups, denying them at the first two VA examinations, stating that they occurred weekly for a duration of 1-2 hours at the third VA examination, and stating that they occurred once every 6 weeks for 1 to 2 days at the fourth VA examination. The Board notes that even if they occurred more frequently, there is nothing in the evidence to warrant a rating in excess of 10 percent based on limitation of flexion inasmuch as the January 2023 VA examiner found that even during a flareup, flexion would be limited only to 95 degrees. While the Board acknowledges the Veteran's reports that he experiences severe pain during a flare-up that affects prolonged sitting or standing and at times causes him to have a slight limp, the Veteran's currently assigned 10 percent rating based on limitation of flexion accounts for the presence of pain. See 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DeLuca, 8 Vet. App. at 202. There is nothing in the evidence to suggest that his right hip limitation of flexion is limited to 30 degrees or less, even on repeated use or during a flareup, such that the next highest, 20 percent rating is warranted. VA and non-VA treatment records during the period on appeal also indicate that the Veteran had full range of motion. Simply put, there is nothing in the evidence that could support a rating in excess of 10 percent based on limitation of flexion.

As to an initial compensable rating based on limitation of extension under DC 5251, the Board finds that the evidence persuasively against the claim. There is nothing in the evidence to suggest that his extension has ever been limited to 5 degrees or less, even on repeated use over time or during a flareup, which is required for a compensable rating. Nor is the Board able to assign a compensable rating under DC 5251 based on painful motion, inasmuch as the Veteran's 10 percent rating based on limitation of flexion is based on painful motion. Assigning compensable ratings based on painful motion pursuant to both Diagnostic Codes 5251 and 5252 would amount to pyramiding. 38 C.F.R. § 4.59. The Veteran's right hip extension has been limited, at most, to 20 degrees, even when considering repeated use over time or during a flareup.
that his extension has ever been limited to 5 degrees or less, even on repeated use over time or during a flareup, which is required for a compensable rating. Nor is the Board able to assign a compensable rating under DC 5251 based on painful motion, inasmuch as the Veteran's 10 percent rating based on limitation of flexion is based on painful motion. Assigning compensable ratings based on painful motion pursuant to both Diagnostic Codes 5251 and 5252 would amount to pyramiding. 38 C.F.R. § 4.59. The Veteran's right hip extension has been limited, at most, to 20 degrees, even when considering repeated use over time or during a flareup. An initial compensable rating under DC 5251 is therefore not warranted at any time during the period on appeal.

As to an initial compensable rating based on impairment of the thigh under DC 5253, the Board finds that an initial 10 percent rating, an no higher, is warranted. The October 2022 VA examiner found that the Veteran's limitation in adduction prevented him from crossing his legs, which supports a 10 percent rating under DC 5253. The Veteran also reported in his November 2017 substantive appeal that he had trouble crossing his legs for extended periods. While the other VA examiners of record all found that limitation of adduction did not prevent him from crossing his legs, the Board resolves any reasonable doubt as to this issue in the Veteran's favor and finds that an initial 10 percent rating under DC 5253 is warranted for the entire period on appeal. It finds further that the evidence is persuasively against a rating in excess of 10 percent under DC 5253. His right hip abduction has been limited at most to 20 degrees, a limitation estimated by the January 2023 VA examiner during a flareup. There is nothing in the evidence to suggest that it has ever been limited to motion lost beyond 10 degrees, which is required for a higher, 20 percent rating under DC 5253.

The Board has also considered whether separate ratings are warranted under DCs 5250, 5254, or 5255, for ankylosis, hip flail joint, or any other femur impairment, respectively, but finds that separate ratings on that basis are not warranted. The evidence does not suggest, nor has the Veteran contended, that he has ever had ankylosis, hip flail joint, or other femur impairment.

The Board notes that, as demonstrated above, separate ratings may be assigned for functional disability in differing planes of movement, as they measure different impairments. However, multiple ratings for a single joint under 38 C.F.R. § 4.59 for generalized painful motion is not permitted. Such is applied regardless of plane of motion, and so assigning more than a single 10 percent under that regulation, or in addition to a compensable rating for a joint-specific Code, would be duplicative and constitute prohibited pyramiding. 38 C.F.R. § 4.14.

The Board has also considered the Veteran's representative's contentions as set forth in the October 2023 post-remand brief. He stated that per the Board's January 2023 remand, a VA examination and medical opinion with rationale was entered in August 2023 (which is the date of the issuance of a SSOC), but also stated that per the Board's remand in January 2023, no examination was rendered to determine the Veteran's current level of severity to include pain or active range of motion. He contended that an additional remand was warranted as VA erred to provide the Veteran an adequate VA examination. The Board finds that it is unclear whether the Veteran's representative's contention is that no VA examination was afforded to the Veteran following the Board's January 2023 remand, or whether his contention is that the January 2023 VA examination is not fully adequate. However, in any event, the Board emphasizes that the Veteran was afforded a new VA examination in January 2023 that is fully adequate as to both its consideration of pain and active range of motion. Additionally, the Veteran has been afforded four VA examinations in connection with his current claim, and neither he nor his representative have contended that the disability has worsened since the time of the most recent, January 2023 VA examination, such that another VA examination would be warranted. The Board therefore finds that a further remand would serve no useful purpose, and that the claims file currently contains sufficient and adequate evidence upon which to decide the Veteran's claims.

In light of the foregoing, an initial 10 percent rating, and no higher, for a right hip disability based on impairment of the thigh is granted. However, entitlement to higher or separate ratings based on limitation of hip flexion
both its consideration of pain and active range of motion. Additionally, the Veteran has been afforded four VA examinations in connection with his current claim, and neither he nor his representative have contended that the disability has worsened since the time of the most recent, January 2023 VA examination, such that another VA examination would be warranted. The Board therefore finds that a further remand would serve no useful purpose, and that the claims file currently contains sufficient and adequate evidence upon which to decide the Veteran's claims.

V. Chiappetta

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board R. Oldroyd, Counsel

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.

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