SARCOIDOSIS

H.M. WALKER · 2024 · Case ID: 24028071

DENIED

Summary

The veteran, who served from July 1996 to September 2010, appeals the denial of increased disability ratings for sarcoidosis (previously asthma), allergic rhinitis, lumbar spine disability, and right hip bursitis. The Board granted a 10 percent rating for allergic rhinitis effective October 18, 2017, and a 20 percent rating for lumbar spine disability effective October 18, 2017. For sarcoidosis, the Board denied an increased rating beyond the existing 30 percent, finding the evidence did not meet the criteria for higher evaluations under either DC 6846 or DC 6600, as the veteran did not require systemic high-dose corticosteroids and PFT results did not meet the threshold for a 60 percent rating. Regarding right hip bursitis, the Board found a 10 percent rating warranted for thigh impairment (inability to cross legs) for the entire appeal period, but denied increased ratings for limitation of flexion and extension, as the evidence did not meet the criteria for higher evaluations. The Board considered lay and medical evidence, including multiple VA examinations, and applied the benefit of the doubt doctrine to the allergic rhinitis claim due to balanced evidence, granting the 10 percent rating. For other claims, the evidence was found to be against the veteran's position, and higher ratings were denied.

Rationale

No indication of systemic high-dose corticosteroid use.; PFT results did not meet criteria for 60% rating under DC 6600.; Veteran's lay statements regarding higher rating not competent medical opinions.

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

6846

Docket No.

19-32 422A

Full Decision Text

Citation Nr: 24028071
Decision Date: 08/01/24 Archive Date: 08/01/24

DOCKET NO. 19-32 422A
DATE: August 1, 2024

ORDER

Entitlement to an evaluation greater than 30 percent for sarcoidosis, previously rated as asthma, is denied.

Effective October 18, 2017, entitlement to a 10 percent rating for rhinitis is granted; a rating higher than 10 percent is denied.

Effective October 18, 2017, entitlement to a 20 percent evaluation for lumbar spine strain is granted; a rating higher than 20 percent is denied.

Entitlement to an evaluation of 10 percent, but no higher, for right hip bursitis, thigh impairment, under DC 5253, is warranted for the entirety of the period on appeal.

Entitlement to an increased evaluation for right hip bursitis with limitation of flexion, with a compensable evaluation prior to May 25, 2023, and greater than 10 percent, thereafter, is denied.

Entitlement to a compensable evaluation for right hip bursitis with limitation of extension is denied.

FINDINGS OF FACT

1. The evidence does not show required use of systemic high dose (therapeutic) corticosteroids for control of sarcoidosis, pulmonary function test results of 55 percent or less, or extra-pulmonary involvement that is associated with sarcoidosis and can be separately rated.

2. From October 18, 2017, symptoms of the Veteran's allergic rhinitis more nearly approximate greater than 50 percent obstruction of the nasal passages on both sides without polyps.

3. Effective October 18, 2017, the Veteran's lumbar symptomatology more nearly approximates forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees, and without incapacitating episodes.

4. For the entirety of the period on appeal, the Veteran's right hip bursitis, thigh impairment, manifests with an inability to cross legs, but is not manifested by limitation of abduction with motion lost beyond 10 degrees.

5. For the period prior to May 25, 2023, the Veteran's right hip disability was not manifested by flexion limited to 45 degrees or less; from May 25, 2023, the Veteran's right hip disability was not manifested by flexion limited to 30 degrees.

6. The Veteran's right hip bursitis is not manifested by extension limited to 5 degrees or less.

CONCLUSIONS OF LAW

1. The criteria for a rating greater than 30 percent for sarcoidosis with history of asthma, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.96, 4.97, Diagnostic Code (DC) 6846.

2. Effective October 18, 2017, the criteria for a 10 percent rating, but no higher, for allergic rhinitis have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.97, Diagnostic Code 6522.

3. Effective October 18, 2017, the criteria for an evaluation of 20 percent, but no higher, for a lumbar spine disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242-5237.

4. Effective October 18, 2017, and for the entire period on appeal, the criteria for entitlement to a 10 percent evaluation, but no higher, for right hip bursitis, thigh impairment, have been met; the criteria for a rating greater than 10 percent are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.156 (c), 3.400, 4.1-4.10, 4.124, Diagnostic Code 5253.

5. Prior to May 25, 2023, the criteria for a compensable disability rating for limitation of flexion of the right hip are not met; for the period from May 25, 2023, the criteria for a rating greater than 10 percent for limitation of flexion of the right hip are not met. 38
hip bursitis, thigh impairment, have been met; the criteria for a rating greater than 10 percent are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.156 (c), 3.400, 4.1-4.10, 4.124, Diagnostic Code 5253.

5. Prior to May 25, 2023, the criteria for a compensable disability rating for limitation of flexion of the right hip are not met; for the period from May 25, 2023, the criteria for a rating greater than 10 percent for limitation of flexion of the right hip are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.156 (c), 3.400, 4.1-4.10, 4.124, Diagnostic Code 5252.

6. The criteria for a compensable disability rating for right hip bursitis limitation of extension are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.156 (c), 3.400, 4.1-4.10, 4.124, Diagnostic Code 5251.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active-duty service from July 1996 to September 2010. These matters come to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in January 2018.

The January 2018 rating decision granted service connection for right hip bursitis with painful motion with an evaluation of 10 percent effective October 18, 2017; service connection for right hip bursitis with limitation of flexion with an evaluation of zero percent effective October 18, 2017; and service connection for asthma (previously rated as sarcoidosis), with an evaluation of 30 percent effective October 18, 2017. The disability previously characterized as mild right hip bursitis was recharacterized as right hip bursitis with limitation of flexion and the noncompensable rating was continued; finally, the 10 percent rating assigned to the lumbar spine disability was also continued. The Board remanded the claims in May 2020 for additional development; they have been returned to the Board for appellate review. At this juncture, the Board notes that since the Veteran was originally service connected for sarcoidosis in a December 2011 rating decision, and the asthma disability granted in the January 2018 rating decision that is the subject of this appeal was subsequently recharacterized as sarcoidosis, the Board is treating the claim involving this respiratory disability as an increased rating claim pursuant to Francisco v. Brown, 7 Vet. App. 55 (1994), rather than pursuant to Fenderson v. West, 12 Vet. App. 119 (1999), despite how the claim was characterized in the May 2020 remand.

Increased Rating

Increased Evaluation Criteria

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes (DCs). 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. See 38 C.F.R. § 4.7.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3.

The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. Wood v. Derwinski, 1 Vet. App. 190 (1991); Washington v. Nicholson, 19 Vet. App. 362 (2005).

In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (200
The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. Wood v. Derwinski, 1 Vet. App. 190 (1991); Washington v. Nicholson, 19 Vet. App. 362 (2005).

Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant's ordinary activity. 38 C.F.R. § 4.10.

1. Entitlement to an evaluation greater than 30 percent for sarcoidosis, previously rated as asthma.

According to DC 6846, sarcoidosis with pulmonary involvement and persistent symptoms requiring chronic low dose (maintenance) or intermittent corticosteroids is rated 30-percent disabling. However, similarly situated sarcoidosis requiring systemic high dose (therapeutic) corticosteroids for control is rated 60-percent disabling. Sarcoidosis with cor pulmonale; or cardiac involvement with congestive heart failure; or progressive pulmonary disease with fever, night sweats, and weight loss despite treatment, is rated 100-percent disabling. 38 C.F.R. § 4.97, DC 6846.

Alternatively, sarcoidosis may be rated under DC 6600, which instead concerns chronic bronchitis. 38 C.F.R. § 4.97, DC 6846 ("or rate active disease or residuals as chronic bronchitis (DC 6600) and extra-pulmonary involvement under specific body system involved"). DC 6600 provides ratings based on the results of PFTs. A forced expiratory volume in one second (FEV-1) of 40 to 55-percent predicted; or, a forced expiratory volume in one second to forced vital capacity (FEV-1/FVC) ratio of 40 to 55 percent; or Diffusion Capacity of the Lung for Carbon Monoxide by Single Breath Method (DLCO (SB)) of 40 to 55-percent predicted; or maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit), is rated as 60 -percent disabling. 38 C.F.R. § 4.97, DC 6600.

The Board notes that respiratory disorders are rated under DCs 6600 through 6817 and 6822 through 6847. Ratings under those DCs will not be combined with each other. Rather, a single rating will be assigned under the DC which reflects the predominant disability with elevation to the next higher rating only where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.96 (a). In other words, the ratings under DC 6600 and 6846 will not combined with each other. This is because they are coexisting respiratory conditions with overlapping symptomatology.

Assigning separate ratings under these DCs would constitute pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, in rating the Veteran's sarcoidosis, application of 38 C.F.R. § 4.14 does not prohibit the Board from comparing the rating criteria for both DCs 6600 and 6846 and considering which provides a higher rating based on the manifestations of the disability. See Butts v. Brown, 5 Vet. App. 532 (1993). Therefore, the Board will evaluate the Veteran's sarcoidosis under the DC that will provide the most favorable rating, ever mindful not to pyramid and overly compensate him for the same symptoms. See, e.g., Esteban v. Brown, 6 Vet. App. 259, 261 (1994).

The Board notes that the provisions under 38 C.F.R. § 4.96 (d) clarifying the use of pulmonary function tests (PFTs) in evaluating respiratory conditions are also applicable in this case as they specifically apply here for
considering which provides a higher rating based on the manifestations of the disability. See Butts v. Brown, 5 Vet. App. 532 (1993). Therefore, the Board will evaluate the Veteran's sarcoidosis under the DC that will provide the most favorable rating, ever mindful not to pyramid and overly compensate him for the same symptoms. See, e.g., Esteban v. Brown, 6 Vet. App. 259, 261 (1994).

Turning to the evidence of record, in November 2017 the Veteran underwent an examination. She was diagnosed with asthma and sarcoidosis. Her condition did not require the use of oral or parenteral corticosteroid medications. She utilized daily bronchodilator therapy. She did not utilize oral bronchodilators, antibiotics, or outpatient oxygen therapy. In the past 12 months she had not had any asthma attacks, or exacerbations that required physician care. Sarcoidosis was diagnosed by x-ray findings indicating bihilar lymphadenopathy. She had no ophthalmologic, renal, cardiac, neurologic, or other organ system involvement. Chest x-ray findings were normal. PFT's were: pre-bronchodilator FVC 105% predicted, FEV-1 97% predicted, FEV-1/FVC 96%. Post bronchodilator was FVC 107%, FEV-1 104%, and FEV-1/FVC 96%. The examiner indicated FEV-1/FVC most accurately reflects the Veteran's level of disability.

In a January 2018 statement, the Veteran reported having sarcoidosis, and that at the time of the 2017 examination she was not in an active asthma attack. She reported using her inhaler daily and rescue inhaler if needed.

In April 2021 the Veteran underwent an examination. She reported symptoms of wheezing, coughing, and shortness of breath, and treating with a Spiriva inhaler. Her condition did not require the use of oral or parenteral corticosteroid medications. She did not utilize oral bronchodilators, antibiotics, outpatient oxygen therapy. In the past 12 months she had not had any asthma attacks, or exacerbations that required physician care. PFT's were: pre-bronchodilator FVC 110% predicted, FEV-1 98% predicted, FEV-1/FVC 73%. Post bronchodilator was FVC 118%, FEV-1 110%, and FEV-1/FVC 73%. The examiner indicated FVC most accurately reflects the Veterans level of disability. She was to avoid strenuous activities such as running that may induce an asthma attack.

In February 2023 the Veteran underwent another examination. She reported aches, pain, cough, and shortness of breath. She utilizes albuterol. Her condition did not require the use of oral or parenteral corticosteroid medications. She utilized intermittent bronchodilator therapy. She did not utilize oral bronchodilators, antibiotics, outpatient oxygen therapy. In the past 12 months she had not had any asthma attacks, or exacerbations that required physician care. X-ray findings revealed bihilar lymphadenopathy. PFT's were: pre-bronchodilator FVC 90% predicted, FEV-1 82% predicted, FEV-1/FVC 77.5%. Post bronchodilator was FVC 92%, FEV-1 77%, and FEV-1/FVC 71.1%. The examiner indicated FEV-1/FVC most accurately reflects the Veteran's level of disability. The examiner indicated she would have difficulty performing daily activities due to shortness of breath related to her sarcoidosis.

In November 2023 the Veteran underwent an examination. The examiner noted that her condition did not require the use of oral or parenteral corticosteroid medications. She did not use inhaled medication. She did not utilize oral bronchodilators, antibiotics, or outpatient oxygen therapy. Symptoms of sarcoidosis included shortness of breath with exertion, chronic hilar adenopathy, and night sweats. X-rays revealed mediastinal and hilar lymphadenopathy. PFTs from the March 2023 examination were referenced.

First, the evidence does not
level of disability. The examiner indicated she would have difficulty performing daily activities due to shortness of breath related to her sarcoidosis.

First, the evidence does not show pulmonary involvement requiring systemic high-dose corticosteroids for control. During the November 2017, April 2021, February 2023, and November 2023 examinations, the Veteran reported using a bronchodilator, however, there is no indication she was prescribed oral bronchodilators, oxygen, or antibiotics. At no point do the examinations or treatment records show corticosteroids were prescribed. Accordingly, the evidence is not consistent with a rating greater than 30 percent based on the primary criteria listed under Diagnostic Code 6846.

Next, the evidence does not show pulmonary function test results to satisfy the criteria for a rating of 60 percent under Diagnostic Code 6600. Pulmonary function tests (PFT) from the VA examinations do not include results of 55 percent or less. DLCO testing was not done. The evidence does not include FEV-1, FEV-1/FVC, or DLCO (SB) test results of 55 percent or less to warrant a rating of 60 percent.

To the extent the Veteran asserts her sarcoidosis warrants a disability rating higher than 30 percent, the Board notes the Veteran is competent and credible to describe the observable symptoms of her service-connected disability. However, she is not competent to state that her sarcoidosis warrants a higher rating under either DC 6600 or 6846 because such an opinion requires medical expertise and knowledge that he has not been shown to possess. Moreover, the Veteran, has not provided any argument or evidence to support the assignment of a higher rating. As such, the Board finds the competent medical evidence of record, including the November 2017, April 2021, February 2023, and November 2023 examinations are adequate for decision making purposes and entitled to significant probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. at 302 (2008). Therefore, a disability rating higher than 30 percent is not warranted for the Veteran's sarcoidosis. 38 C.F.R. § 4.97, DCs 6846-6600.

In sum, the Board finds that a disability rating greater than 30 percent is not warranted for the Veteran's service-connected sarcoidosis. To the extent the Veteran seeks higher ratings, the Board finds the evidence is persuasively against the assignment of higher ratings for the entire period on appeal, the benefit of the doubt doctrine is not applicable, and the appeal must be denied.

2. Entitlement to a compensable evaluation for allergic rhinitis prior to November 1, 2023, and greater than 10 percent thereafter.

Allergic Rhinitis is evaluated under Diagnostic Code 6522, with a noncompensable evaluation prior to November 1, 2023, and a 10 percent evaluation thereafter.

Under DC 6522 for allergic or vasomotor rhinitis, a 10 percent rating is warranted for allergic rhinitis without polyps, but with greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side. A 30 percent rating is warranted for allergic rhinitis with polyps.

The Board notes that other DCs are not applicable to the Veteran's case because DC 6522 addresses allergic or vasomotor rhinitis specifically and to rate his rhinitis under another DC would constitute an impermissible rating by analogy. Copeland v. McDonald, 27 Vet. App. 333, 338 (2015).

When determining whether an increased rating is warranted, the Board must consider statements made by the Veteran or those with knowledge of the Veteran's disability, provided they are discussing things they are qualified to address. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007) (explaining that laypersons are qualified to report observable symptoms and medical events but not to provide medical opinions about complex medical questions).

According to records from the Arthritis and Osteoporosis Center, dated in October 2017, the
rate his rhinitis under another DC would constitute an impermissible rating by analogy. Copeland v. McDonald, 27 Vet. App. 333, 338 (2015).

According to records from the Arthritis and Osteoporosis Center, dated in October 2017, the Veteran reported using her inhaler daily.

In November 2017 the Veteran underwent an examination. She reported having increased her daily allergy medication from 1 every other day to 1 per day. There was not greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis. There was not complete obstruction on either side due to rhinitis, nor did examination show hypertrophy or nasal polyps.

At a March 2018 visit with Dr. V., the Veteran reported nasal congestion, frequent sneezing, clear rhinorrhea, and itchy watery eyes. She used Zyrtec, Flonase, and albuterol. At a May 2018 visit, Dr. V. noted there are no polyps present. The Veteran reported a desire to begin immunotherapy to treat her allergic rhinitis. In a June 2018 statement, the Veteran contended that her condition had worsened.

In April 2021 the Veteran underwent an examination. She reported her condition had worsened, and she was taking allergy medication daily. She reported itchy, watery eyes, rhinitis, nasal congestion, sneezing, and coughing. There was not greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis. There was not complete obstruction on either side due to rhinitis, or nasal polyps. There was permanent hypertrophy of the nasal turbinates. She was advised to avoid working around offending allergens.

At a February 2022 Lexington Med Center visit she presented with sinusitis and cough. She complained of nasal congestion and a dry cough.

In February 2023 the Veteran underwent another examination. She reported using Zyrtec and Flonase daily. There was not greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis. There was not complete obstruction on either side due to rhinitis, hypertrophy of the nasal turbinates, or nasal polyps. The examiner indicated the Veteran would have difficulty with lightheadedness due to the medication she uses to treat the allergic rhinitis.

In November 2023 the Veteran underwent an examination. She reported sneezing, runny nose, postnasal drip, and treatment with fluticasone nasal spray, and allergy shots. There was greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis, and there was hypertrophy of the nasal turbinates. There was not complete obstruction on either side due to rhinitis, or nasal polyps.

In a December 2023 decision, the evaluation for allergic rhinitis was increased to 10 percent effective May 25, 2023.

In an April 2024 decision, the RO found a clear and unmistakable error was found in the effective date and established a 10 percent evaluation for allergic rhinitis effective November 1, 2023.

In May 2024 the Veteran underwent an examination. She reported coughing, sneezing and watery eyes, and treating with Zyrtec and Flonase daily. There was not greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis, complete obstruction on either side due to rhinitis, or nasal polyps. There was hypertrophy of the nasal turbinates.

The Board finds that the weight of evidence is approximately balanced for and against finding the Veteran's symptoms associated with her rhinitis more closely approximating the rating criteria for a 10 percent rating for the entire period on appeal. Thus, the criteria for a 10 percent rating have been met for the entire period on appeal, beginning with the date of claim of increase October 18, 2017.

Significant probative weight is afforded the Veteran's reports of the nature of her symptoms and extensive medication reliance. The Veteran has been prescribed several medications she has relied upon for relief. The Court in Jones held that when assigning a disability evaluation, the Board may not consider the ameliorative effects of medication when those effects are not explicitly contemplated by the rating criteria, which is directly applicable to the present case and Diagnostic Code 6522. Jones v. Shinseki, 26 Vet. App. 56 (2012).

Although the VA examination of record notes less severe symptoms at times during the period on appeal, the Board finds that the evidence taken as a whole more closely approximates a 10 percent rating throughout the appeal period.

Entitlement to the next higher evaluation of 30 percent is not warranted, as there is no evidence or argument that there were polyps due to her allergic rhinitis. In other words, the lay and medical evidence does not persuasively show that her allergic rhinitis symptoms more nearly approximate the criteria for the next higher rating. Therefore, a rating in excess of 10 percent is denied.

3. Entitlement to an increased evaluation greater than 10 percent prior to November 1, 2023, and greater than 20 percent thereafter, for the lumbar spine disability.

The Veteran's lumbar spine disability is evaluated as 10 percent disabling prior to November 1, 2023, and 20 percent disabling thereafter, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5237.

Effective February 7, 2021, VA's Schedule, 38 C.F.R. Part 4, was amended with regard to rating musculoskeletal disorders. Fed. Reg. 76453 (November 30, 2020) (codified at 38 C.F.R. § 4.71a).

The changes effective February 7, 2021, under 38 C.F.R. § 4.71a, DC 5242 and 5243 were not to the rating schedule itself but added instruction to classify disabilities associated with IVDS under DC 5243 and all other intervertebral disc disabilities under 5242. As such, DC 5242 now reflects "Degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (also, see either DC 5003 or 5010);" DC 5243 now reflects "Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve route; assign diagnostic code 5242 for all other disc diagnoses." As such, the changes do not impact the general rating formula and evaluation of the disability under the pre- and post-February 7, 2021, regulations is not required.

Lumbar spine disabilities are rated based on limitation of motion, with evaluations assigned under the General Rating Formula for Diseases and Injuries of the Spine. A note following the schedule criteria indicates that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. 38 C.F.R. § 4.71a, Plate V, General Rating Formula for Diseases, and Injuries of the Spine, Note 2. Diagnostic Codes 5235-5243.

Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent evaluation is warranted for disability of the thoracolumbar spine when there is forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees, but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.

A 20 percent evaluation is warranted for disability of the thoracolumbar spine when there is forward flexion of the thoracolumbar spine greater than 30 degrees, but
Spine, a 10 percent evaluation is warranted for disability of the thoracolumbar spine when there is forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees, but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.

A 20 percent evaluation is warranted for disability of the thoracolumbar spine when there is forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. An evaluation higher of 40 percent is not warranted unless there is forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. An evaluation of 50 or greater requires unfavorable ankylosis of the entire thoracolumbar spine.

Note 1 to this rating schedule states that any associated objective neurologic abnormalities, including but not limited to bowel or bladder impairment, are to be evaluated separately under appropriate diagnostic codes.

In the alternative, an evaluation can be assigned under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Intervertebral disc syndrome is to be evaluated either under the new general rating formula for diseases and injuries of the spine or under the formula for rating intervertebral disc syndrome based on incapacitating episodes, whichever method results in a higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25.

For intervertebral disc syndrome manifested by incapacitating episodes having a total duration of at least six weeks during the past 12 months, a 60 percent evaluation is warranted; with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, a 40 percent evaluation is warranted; with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, a 20 percent evaluation is warranted; and with incapacitating episodes having a total duration of at least one weeks but less than two weeks during the past 12 months, a 10 percent evaluation is warranted.

Note 1 of that code provides that, for purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.

Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss in light of 38 C.F.R. § 4.40, considering any part of the musculoskeletal system that becomes painful on use. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flareups. 38 C.F.R. § 4.14.

CAVC has held that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." See Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). 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).

Additionally, CAVC, in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight bearing and, if indicated, with range of motion measurements of the opposite undamaged joint.

Turning to the facts of the case according to records from the Arthritis and Osteoporosis Center, in October 2017 the Veteran presented with complaints of low back and hip pain. On examination range of motion was within normal limits in all joints, with the exception of tenderness of the right knee.
.40).

In November 2017 the Veteran underwent an examination and was diagnosed with a lumbosacral strain and degenerative arthritis. She reported flare ups while sitting, or standing too long, and being unable to lay flat on her back due to pain and stiffness. Functional impairment was described as being unable to bend completely without ibuprofen or Mobic. Range of motion was flexion to 70 degrees, extension 0 to 20 degrees, right and left lateral flexion to 30 degrees, and right and left lateral rotation 0 to 30 degrees, with pain in flexion and extension. There was no evidence of pain with weight bearing. She had tenderness with flexion and extension. She was able to perform repetitive use testing with at least 3 repetitions. There was no additional loss of function or range of motion after three repetitions. She was not examined immediately after repetitive use over time or during a flare up. The examiner indicated that the examination was neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repetitive use over time or during a flare up. Pain, weakness, fatigability, or incoordination do not limit functional ability with repeated use over a period of time or during a flare up. She had no guarding or muscle spasms. There was no atrophy, ankylosis, or neurologic abnormalities. She did not have intervertebral disc syndrome. The functional impact was noted as an inability to bend, stand, walk, or squat for prolonged periods of time.

The examiner did not attempt to elicit any information regarding the severity, frequency, or duration of the Veteran's flare-ups, nor did she attempt to estimate any additional functional loss during flares. Accordingly, an addendum opinion was sought that addresses the requirements of Sharp v. Shulkin 29 Vet. App. 26 (2017).

In a January 2018 statement, the Veteran reported her pain is constant and prevents her from participating in normal activities such as exercise, walking, or running.

In an August 2020 addendum opinion, the examiner noted a review of the November 2017 examination. The examiner estimated as for the back, there was no additional loss in range of motion after repetitive motion use and there would be no change in the range of motion during flare up.

In April 2021 the Veteran underwent another examination. She reported daily pain and being unable to fall asleep on her stomach due to back pain. She avoided stairs and limited strenuous activities. Range of motion testing revealed flexion to 70 degrees, extension to 10 degrees, right and left lateral flexion to 30 degrees, and right and left lateral rotation to 28 degrees, with pain on both flexion and extension. Passive range of motion testing was not performed as it was medically contraindicated, as it is not clinically safe to perform passive testing on the spine. She had pain in weight bearing, active motion, that does not cause functional loss. There was no crepitus, or pain on palpation of the joint. She was able to perform repetitive use testing with at least 3 repetitions. There was no additional loss of function or range of motion after three repetitions. She was not examined immediately after repetitive use over time or during a flare up. The examiner determined that pain, weakness, fatigability, or incoordination did not limit functional ability with repeated use over a period of time or during a flare up. She did not have guarding, tenderness, or muscle spasms. Muscle strength testing was normal, as was straight leg raising. There was no ankylosis or neurologic abnormalities. She does not have IVDS. Functional impact was described as being unable to run, walk, or stand for prolonged periods of time, being unable to climb multiple floors of stairs at a time, and was unable to sit, squat, or stand long periods of time. She was unable to lift heavy objects, bend, stoop, or twist.

In a June 2021
weakness, fatigability, or incoordination did not limit functional ability with repeated use over a period of time or during a flare up. She did not have guarding, tenderness, or muscle spasms. Muscle strength testing was normal, as was straight leg raising. There was no ankylosis or neurologic abnormalities. She does not have IVDS. Functional impact was described as being unable to run, walk, or stand for prolonged periods of time, being unable to climb multiple floors of stairs at a time, and was unable to sit, squat, or stand long periods of time. She was unable to lift heavy objects, bend, stoop, or twist.

In a June 2021 statement, the Veteran reported experiencing spasms often where her back feels locked.

In November 2023 the Veteran underwent an examination. She reported flare ups 2 times per week, with characteristics of worsened pain and stiffness that are moderate in severity, resulting in difficulty standing and walking. Range of motion testing revealed flexion to 60 degrees, extension to 10 degrees, right lateral flexion to 15 degrees, left lateral flexion to 20 degrees, and right and left lateral rotation to 20 degrees, with pain in flexion, right lateral flexion, and rotation. Passive range of motion testing was not done as it was medically contraindicated due to the Veteran's pain. There was evidence of pain in weight bearing and active motion, that results in limited ability to perform high impact activities, or prolonged weight bearing activities such as walking, bending, lifting, or carrying. There was no evidence of crepitus. There was localized tenderness or pain on palpation of the lower paraspinal processes mild in severity.

Following 3 repetitions range of motion was as follows: flexion to 55 degrees, extension to 10 degrees, right and left lateral flexion to 15 degrees, right and left lateral rotation to 15 degrees. The Veteran was not examined during a flare up or following repetitive use over time, and the estimated range of motion during a flare up was flexion to 55 degrees, extension to 10 degrees, right and left lateral flexion to 15 degrees, right and left lateral rotation to 15 degrees. She had tenderness of the spine that did not result in abnormal gait or abnormal spinal contour. She did not have guarding or muscle spasm. There was no atrophy or ankylosis. Neurologic testing was normal. She did not have IVDS. Functional impact was described as limited ability to perform high-impact, prolonged weight bearing activities, such as walking, bending, lifting, or carrying heavy objects.

In a December 2023 decision, the evaluation for lumbar strain, was increased to 20 percent effective May 25, 2023.

In an April 2024 decision, the RO found a clear and unmistakable error was found in the effective date and established a 20 percent evaluation for the lumbar strain effective November 1, 2023.

In May 2024 the Veteran underwent another examination. She reported flare ups that occur daily, moderate in nature, and are precipitated by sleeping. She reported being unable to sit, stand, or walk for more than 10 minutes before needing to change positions. Range of motion testing revealed flexion to 70 degrees, extension to 25 degrees, right and left lateral flexion to 25 degrees, and right and left lateral rotation to 25 degrees, with pain throughout. Passive range of motion testing was not done as it is medically contraindicated due to the Veteran's pain. There was evidence of pain in weight bearing, non-weight bearing, and active motion, that does not cause functional loss. There was no evidence of crepitus. There was no localized tenderness or pain on palpation. Following three repetitions there was no additional loss of function or range of motion. The Veteran was not examined during following repetitive use over time, and the estimated range of motion was flexion to 60 degrees, extension to 20 degrees, right and left lateral flexion to 20 degrees, right and left lateral rotation to 20 degrees. The Veteran was not examined during a flare up, and the estimated range of motion was flexion to 50 degrees, extension to 15 degrees, right and left lateral flexion to 15 degrees, right and left lateral rotation to 15 degrees. There was no tenderness, guarding or muscle spasm of the thoracolumbar spine. She reported needing to take breaks while sitting, standing, and walking. Muscle strength testing was normal and there was no ankylosis. Neurologic testing was normal. She did not have IV
was flexion to 60 degrees, extension to 20 degrees, right and left lateral flexion to 20 degrees, right and left lateral rotation to 20 degrees. The Veteran was not examined during a flare up, and the estimated range of motion was flexion to 50 degrees, extension to 15 degrees, right and left lateral flexion to 15 degrees, right and left lateral rotation to 15 degrees. There was no tenderness, guarding or muscle spasm of the thoracolumbar spine. She reported needing to take breaks while sitting, standing, and walking. Muscle strength testing was normal and there was no ankylosis. Neurologic testing was normal. She did not have IVDS.

Given the Veteran's claim for increase in was submitted on October 18, 2017, and the findings of flexion limited at worst to 60 degrees, with evidence of pain, entitlement to an increased evaluation of 20 percent is warranted for the entire period on appeal.

Throughout the appeal period, the Veteran's flexion has, at worst, been to 60 degrees, with evidence of pain. Taking into account reports of flare-ups, and following repetitive use, motion is estimated to be limited at worst to 55 degrees. Thus, the criteria for an evaluation of 20 percent and no more is warranted.

To meet the criteria for a 30 percent rating, the range of flexion would have to be limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine under diagnostic code 5237.

The functional impact has been explained as an inability to bend, stand, walk, or squat for prolonged periods, as well as an inability to lift heavy objects.

Regarding Correia criteria, at the 2017 examination there was no evidence of pain with non-weight bearing. In April 2021, November 2023, and May 2024, she had pain in weight-bearing and active motion, that does not cause functional loss. Passive motion testing was not performed as it has been deemed medically contraindicated throughout the period on review.

The Court established that flare-ups must be considered. However, as with DeLuca, guidance on how to evaluate flare-ups has not been particularly clear. Therefore, this Veterans Law Judge expands upon the wisdom advanced in Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Flare-ups must be quantifiable and must result in limitation of motion or function beyond that contemplated by the already provided evaluation. In addition, because there is a regulation addressing stabilization of ratings, the flare-up must be of such length as to establish that the overall impairment is more severe than currently evaluated, rather than a brief snapshot in time. In a 2020 addendum, and according to the April 2021 examination findings, the Veteran would have no additional loss in range of motion after repetitive use or during a flare-up. According to the November 2023 examiner, the during a flare-up or following repetitive use over time the Veteran would have flexion reduced to 55 degrees. In May 2024 motion during a flare up was estimated to be reduced to 50 degrees. Even taking into account the estimated reduction in motion during a flare-up, at worse to 50 degrees, the overall impairment is not more severe than the criteria for a 20 percent evaluation.

There is no evidence (lay or medical) that the criteria for the next higher evaluation have been met. There is no evidence she had forward flexion of the thoracolumbar spine to 30 degrees or less; nor was there favorable ankylosis of the entire thoracolumbar spine. Further, there is no persuasive evidence that her symptoms approximated favorable ankylosis of the thoracolumbar spine.

In sum, 38 C.F.R. § 4.1 provides that the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability. The Veteran's reports of exacerbation or flare-ups did not result in limitation of motion or function beyond that contemplated by the already provided evaluation, and are not of sufficient duration to warrant a change in evaluation without violating the spirit of Mitchell, the spirit of 38 C.F.R. § 4.1, and the rule regarding stabilization of ratings.

Higher evaluations are also available for intervertebral disc syndrome. At no time has the Veteran been diagnosed with IVDS, nor is there is evidence showing treatment for incapacitating episodes, or that she has been prescribed bed rest by a physician. As such throughout the entire period on appeal, a higher evaluation under DC 5243 is not warranted.

At no time during the pendency
. The Veteran's reports of exacerbation or flare-ups did not result in limitation of motion or function beyond that contemplated by the already provided evaluation, and are not of sufficient duration to warrant a change in evaluation without violating the spirit of Mitchell, the spirit of 38 C.F.R. § 4.1, and the rule regarding stabilization of ratings.

At no time during the pendency of the appeal, have there been findings of ankylosis or symptoms analogous to ankylosis. The Board notes that ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Dorland's Illustrated Medical Dictionary 93 (30th ed. 2003). See also 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, NOTE (5) (defining ankylosis as fixation of a joint in a particular position).

Given the limitation of motion noted by the VA examiners (including negative findings of ankylosis or symptoms analogous to ankylosis), and VA medical providers, the Board finds that at no time during the course of the appeal has the Veteran had ankylosis of the spine. The assigned 20 percent rating adequately contemplates the Veteran's level of impairment-including consideration of functional impairment during flare-ups or following repetitive motion. As such, a higher evaluation is not warranted due to functional loss.

The Board has considered the Court's holding that VA may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria. Jones v. Shinseki, 26 Vet. App. 56, 61 (2012). The rating criteria listed under Diagnostic Code 5237 for limitation of lumbar spine motion fail to contemplate the effects of pain medication on the Veteran's lumbar spine. The Veteran has undergone treatment for her lumbar spine throughout the period on review. She has reported taking medication to treat her pain. However, the Board emphasizes that this decision is not based on any finding that the Veteran's medication provided relief, but rather it is based on the fact that the necessary symptoms and manifestations for the lumbar spine are not demonstrated by the evidence of record regardless of any medication the Veteran takes. The evidence simply does not demonstrate the necessary findings for a higher rating for the lumbar spine, with or without medication.

Note (1) of 38 C.F.R. § 4.71a also instructs the rater to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. In the present case, there have been no reports of neurologic abnormalities. As such, a separate evaluation for neurological impairment is not warranted.

Throughout the appeal period, considering the lay and medical evidence, the Veteran's lumbar spine symptoms have most nearly approximated the criteria for a 20 percent rating and no higher. Accordingly, entitlement to an evaluation of 20 percent and no more for the lumbar spine disability is warranted from October 18, 2017; and to that extent the claim is granted. The persuasive evidence is against a rating higher than 20 percent, and to that extent, the claim is denied.

4. Entitlement to an increased evaluation for right hip bursitis with limitation of flexion, with a noncompensable evaluation prior to May 25, 2023, and a 10 percent evaluation thereafter.

5. Entitlement to an initial evaluation for right hip bursitis with thigh impairment, with a 10 percent evaluation prior to May 25, 2023, and a noncompensable evaluation thereafter.

6. Entitlement to a compensable evaluation for right hip bursitis with limitation of extension.

The Veteran is service connected for right hip bursitis with limitation of flexion under Diagnostic Codes 5019-5252, with a non-compensable evaluation prior to May 25, 2023, and a 10 percent evaluation thereafter.

The Veteran is service connected for right hip bursitis with thigh impairment under Diagnostic Codes 5019-5253, with a 10 percent evaluation prior to May 25, 2023, and a non-compensable evaluation thereafter.

The Veteran is service connected for right hip bursitis with limitation of extension with a noncompensable evaluation,
ensable evaluation thereafter.

6. Entitlement to a compensable evaluation for right hip bursitis with limitation of extension.

The Veteran is service connected for right hip bursitis with limitation of extension with a noncompensable evaluation, under Diagnostic Code 5019-5251.

Disabilities of the hip and thigh are rated under the criteria of 38 C.F.R. § 4.71a, Diagnostic Codes 5250 through 5255. Although portions of the rating schedule addressing the musculoskeletal system were revised, effective February 7, 2021, these diagnostic codes were not changed.

Limitation of extension of the thigh (and adjacent hip) is rated under DC 5251, which provides a maximum 10 percent rating for limitation of extension of the thigh to 5 degrees.

Limitation of flexion of the thigh (and adjacent thigh) is rated under Diagnostic Code 5252, which provides a 10 percent rating for limitation of flexion of the thigh to 45 degrees, a 20 percent rating for limitation of flexion to 30 degrees, a 30 percent rating for limitation of flexion to 20 degrees, and a 40 percent rating for limitation of flexion to 10 degrees.

Under Diagnostic Code 5253, a 10 percent disability rating is warranted for limitation of rotation (cannot toe-out more than 15 degrees of affected leg) or where adduction is limited such that legs cannot be crossed. A 20 percent rating is assigned for limitation of abduction of, motion lost beyond 10 degrees.

Normal hip flexion is from zero to 125 degrees, and normal hip abduction is from zero to 45 degrees. 38 C.F.R. § 4.71, Plate II.

Again, 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).

Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[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 [or 4.73] criteria."). See 38 C.F.R. §§ 4.40, 4.45, 4.59.

Turning to the evidence of record, in November 2017, the Veteran underwent an examination and was diagnosed with right hip bursitis. She described flare ups during long periods of standing and sitting. Functional impairment was described as pain during sitting, standing, and an inability to sleep on right hip. Range of motion testing revealed flexion to 115 degrees, extension 0 to 20 degrees, abduction to 35 degrees, adduction to 25 degrees, external rotation to 50 degrees, and internal rotation to 30 degrees. Adduction is not limited such that she cannot cross her legs. She had pain in external and internal rotation that did not result in functional loss. She had tenderness with internal and external rotation. There was no evidence of pain with weight bearing or crepitus. Her left hip motion was normal. She was able to perform repetitive use testing with at least 3 repetitions. There was no additional loss of function or range of motion after three repetitions. She
hip. Range of motion testing revealed flexion to 115 degrees, extension 0 to 20 degrees, abduction to 35 degrees, adduction to 25 degrees, external rotation to 50 degrees, and internal rotation to 30 degrees. Adduction is not limited such that she cannot cross her legs. She had pain in external and internal rotation that did not result in functional loss. She had tenderness with internal and external rotation. There was no evidence of pain with weight bearing or crepitus. Her left hip motion was normal. She was able to perform repetitive use testing with at least 3 repetitions. There was no additional loss of function or range of motion after three repetitions. She was not examined immediately after repetitive use over time or during a flare up. The examiner indicated that the examination was neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repetitive use over time or during a flare up. Pain, weakness, fatigability, or incoordination did not limit functional ability with repeated use over a period of time or during a flare up. She had normal muscle strength, and no atrophy. There was no ankylosis. She did not have malunion or nonunion of the femur, flail hip joint, or leg length discrepancy. The examiner described her functional impact during a flare up as, she is unable to stand, walk, or squat for a prolonged period of time.

The November 2017 examiner did not attempt to elicit any information regarding the severity, frequency, or duration of the Veteran's flare-ups, nor did she attempt to estimate any additional functional loss during flares. Accordingly, an addendum opinion was sought that addresses the requirements of Sharp v. Shulkin 29 Vet. App. 26 (2017).

In an August 2020 addendum opinion, the examiner noted a review of the November 2017 examination. The examiner stated as for the right hip, there was no additional loss in range of motion after repetitive motion use and there would be no change in the range of motion during flare up.

In a January 2018 statement, the Veteran reported episodes of bed rest, and daily use of 800 milligrams of Ibuprofen. She reported upon flexion she experiences right hip pain.

According to records from the Arthritis and Osteoporosis Center, dated in October 2017, the Veteran presented with complaints of low back and hip pain. On examination range of motion was within normal limits in all joints, with the exception of tenderness of the right knee.

In April 2021, the Veteran underwent an examination and was diagnosed with right hip bursitis. She reported using a cane for her right hip. She described flare ups during long periods of exercise or strenuous activity. She described her functional impairment as pain during sitting, standing, and an inability to sleep on right hip. Range of motion testing revealed flexion to 75 degrees, extension to 30 degrees, abduction to 30 degrees, adduction to 10 degrees, external rotation to 35 degrees, and internal rotation to 20 degrees, with pain throughout. Adduction was limited such that she cannot cross her legs. She had pain in weight bearing, non-weight bearing, active and passive motion that does not cause functional loss. There was no evidence of tenderness or pain on palpation of the joint. Testing was not performed on the left joint due to the left joint being damaged. She was able to perform repetitive use testing with at least 3 repetitions. There was no additional loss of function or range of motion after three repetitions. She was not examined immediately after repetitive use over time or during a flare up.

The examiner indicated that procured evidence suggested pain limits functional ability with repeated use over time and during a flare-up, with the estimated range of motion in degrees being flexion to 65, extension 20, abduction 20, adduction 5, external rotation 25, and internal rotation 10. Limitation in adduction after repeated use over time or during a flare-up prevents the Veteran from crossing her legs. She had normal muscle strength, with no atrophy or ankylosis. She did not have malunion or nonunion of the femur, flail hip joint, or leg length discrepancy. Functional impact was noted as being unable to run, or walk prolonged periods, unable to stand prolonged periods of time, unable to climb multiple floors of stairs at one time, unable to sit prolonged periods of time, and unable to drive prolonged distances.

In a June 2021 statement, the Veteran reported feeling as if she can barely move her hip without it hurting and popping.

In November 2023 the Veteran underwent another examination.
uction after repeated use over time or during a flare-up prevents the Veteran from crossing her legs. She had normal muscle strength, with no atrophy or ankylosis. She did not have malunion or nonunion of the femur, flail hip joint, or leg length discrepancy. Functional impact was noted as being unable to run, or walk prolonged periods, unable to stand prolonged periods of time, unable to climb multiple floors of stairs at one time, unable to sit prolonged periods of time, and unable to drive prolonged distances.

In a June 2021 statement, the Veteran reported feeling as if she can barely move her hip without it hurting and popping.

In November 2023 the Veteran underwent another examination. She reported pain; however, she did not report flare-ups. She described her functional loss as difficulty sitting too long, difficulty sleeping on right side, and difficulty walking for long periods. Range of motion testing revealed flexion to 100 degrees, extension to 20 degrees, abduction to 20 degrees, adduction to 15 degrees, and external and internal rotation to 30 degrees, with pain throughout. The examiner indicated that the limitation in adduction did not prevent the Veteran from crossing her legs. Passive range of motion was the same as active motion. She had pain in weight bearing, active motion, and passive motion that caused functional loss, described as limited ability to perform duties that involve prolonged sitting, walking, or squatting down. There was no crepitus. There was tenderness to the trochanter head. The left hip was not evaluated as it is damaged. Following 3 repetitions range of motion was: flexion to 90 degrees, extension to 20 degrees, abduction to 20 degrees, adduction to 10 degrees, external and internal rotation to 25 degrees. Following repetitive use, the examiner determined that right limitation in adduction did not prevent the Veteran from crossing her legs. The Veteran was not examined immediately after repeated use over time. Estimated range of motion in degrees after repeated use was flexion to 90 degrees, extension to 20 degrees, abduction to 20 degrees, adduction to 10 degrees, external and internal rotation to 25 degrees. There was no atrophy, ankylosis, femur, or flail hip joint impairment. Functional impact was described as limited ability to perform duties that involve prolonged sitting, walking, or squatting.

In a December 2023 decision, the evaluation for right hip bursitis with limitation of flexion was increased to 10 percent effective May 25, 2023. In the same decision, right hip bursitis with painful motion was assigned a noncompensable rating, effective May 25, 2023. In other words, her right hip bursitis met the criteria for a 10 percent rating based on a compensable limitation of flexion that considered her painful motion.

In May 2024 the Veteran underwent an examination. She reported pain and flare-ups throughout the day that are moderate in nature, precipitated by staying in one position too long, or walking, standing, or sitting too long. Functional impairment was described as an inability to stand, sit, or walk for more than 10 minutes prior to needing to change positions. Range of motion testing revealed flexion to 100 degrees, extension to 25 degrees, abduction to 30 degrees, adduction to 30 degrees, and external rotation to 40 degrees, and internal rotation to 30 degrees, with pain throughout. The examiner indicated limitation in adduction prevented the Veteran from crossing her legs. Passive range of motion was the same as active motion. She had pain in weight bearing, active motion, and passive motion that cause functional loss, described as limited ability to perform duties that involve prolonged siting, walking, or squatting down. There was no crepitus or tenderness. Following 3 repetitions, there was no additional loss of function or range of motion. The Veteran was not examined immediately after repeated use over time. Estimated range of motion in degrees after repeated use was flexion to 95 degrees, extension to 20 degrees, abduction to 25 degrees, adduction to 15 degrees, external rotation to 35 degrees, and internal rotation to 25 degrees. The Veteran was not examined during a flare-up. Estimated range of motion in degrees during a flare up was flexion to 90 degrees, extension to 15 degrees, abduction to 20 degrees, adduction to 10 degrees, external rotation to 30 degrees, and internal rotation to 20 degrees. Following repeated use over time and during a flare-up, the examiner determined that limitation in adduction prevents the Veteran from crossing her legs. There was no atrophy
Estimated range of motion in degrees after repeated use was flexion to 95 degrees, extension to 20 degrees, abduction to 25 degrees, adduction to 15 degrees, external rotation to 35 degrees, and internal rotation to 25 degrees. The Veteran was not examined during a flare-up. Estimated range of motion in degrees during a flare up was flexion to 90 degrees, extension to 15 degrees, abduction to 20 degrees, adduction to 10 degrees, external rotation to 30 degrees, and internal rotation to 20 degrees. Following repeated use over time and during a flare-up, the examiner determined that limitation in adduction prevents the Veteran from crossing her legs. There was no atrophy, ankylosis or femur or flail hip joint impairment. Functional impact was described as limited to standing for 10 minutes and walking no more than a 14 of a mile.

The Veteran's right hip bursitis with thigh impairment under DC 5019-5253 was evaluated with a 10 percent rating prior to May 25, 2023, and a non-compensable evaluation thereafter. After consideration of the entire record and relevant law, the Board finds that a rating of 10 percent for impairment of the Veteran's right hip under Diagnostic Code 5253 is warranted for the entire period on appeal. In April 2021 and May 2024, the Veteran's adduction was limited to such an extent that she is unable to cross her legs. While on examination in November 2017 and November 2023, the examiner found the Veteran able to cross her legs, given the entirety of the record and the Veteran's consistent reports of pain and impairment, the evidence more nearly approximates an inability to cross her legs for the entirety of the period on review. At no point during the appeal period has there been a showing of limitation of abduction and motion lost beyond 10 degrees, as required for the next higher rating. 38 C.F.R. § 4.71a, Diagnostic Code 5253.

The Veteran has had no ankylosis or malunion or nonunion of femur, flail hip joint or leg length discrepancy.

The Veteran's right hip bursitis with limitation of flexion, rated under DC 5019-5252, was evaluated with a non-compensable evaluation prior to May 25, 2023, and a 10 percent evaluation thereafter. A 10 percent disability rating is warranted for flexion of the thigh that is limited to 45 degrees; a 20 percent rating is for flexion of the thigh that is limited to 30 degrees. After consideration of the entire record and relevant law, the Board finds that a compensable evaluation prior to May 25, 2023, is not warranted. There has been no showing of limitation of flexion of the thigh to 45 degrees, as required for a 10 percent rating. At worst, prior to May 25, 2023, flexion was to 75 degrees, and after considering repetitive use over time and with flare-ups flexion was to 65 degrees. For the period from May 25, 2023, there is no indication of flexion of the thigh limited to 30 degrees. At worst, even after taking into account repetitive use and flare-ups, flexion was limited to 90 degrees. Accordingly, entitlement to increased evaluations prior to May 25, 2023, and thereafter, for right hip limitation of flexion is not warranted.

The Veteran's right hip bursitis with limitation of extension is rated as noncompensable under Diagnostic Code 5019-5251. After consideration of the entire record and relevant law, the Board finds that a compensable rating for the Veteran's right hip limitation of extension under Diagnostic Code 5251 is not warranted as at any point during the appeal period as there has not been a showing of limitation of extension of the right thigh to 5 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5251. At worst, even considering repetitive use over time and with flare-ups, extension is estimated to be limited to 20 degrees.

The Board has also considered whether the Veteran is entitled to higher ratings under another diagnostic code, including Diagnostic Codes 5250 and 5255. However, the evidence of record does not support ankylosis of the hip, a flail joint, or a fracture of the surgical head of the femur with false joint to warrant a higher rating. 38 C.F.R. § 4.71a, Diagnostic Codes 5250, 5254, 5255.

In reaching these determinations, the Board has considered the Veteran's lay statements of record that she experienced increased pain
5251. At worst, even considering repetitive use over time and with flare-ups, extension is estimated to be limited to 20 degrees.

In reaching these determinations, the Board has considered the Veteran's lay statements of record that she experienced increased pain and difficulty walking due to her right hip disabilities. The Veteran is clearly competent to report observable symptomatology. However, as to the specific issue in this case, questions of nature and medical severity fall outside the realm of common knowledge of a lay person. In this case, the current severity of the Veteran's right hip disabilities are matters suited to the realm of medical expertise. As such, to the extent the Veteran is addressing questions of the medical nature and severity of her right hip disabilities, the Board finds that her statements are not competent lay evidence. Notwithstanding, the examiners in determining the impairment caused by the right hip bursitis considered the Veteran's lay statements when approximating her level of impairment during a flare up or following repetitive use. The findings of the medical professionals, which includes considerations of the Veteran's lay statements, are persuasive.

The persuasive evidence supports impairment in right thigh (inability to cross her right leg) to a level that warrants a 10 percent rating for the entire appeal period, but no higher. To that extent, the claim is granted. However, the persuasive evidence is against finding ratings higher than those currently assigned for right hip limitation of flexion and extension. Consequently, the benefit-of-the-doubt rule does not apply and entitlement to increased ratings, as described above, is denied.

H.M. WALKER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Skiouris, Elena

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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