TINNITUS

T. BERRY · 2025 · Case ID: A25052248

MIXED

Summary

The veteran, who served in the Air Force from October 1979 to March 1985 and again from April 1985 to November 1990, appeals the denial of service connection for several conditions and challenges the disability ratings assigned to his hip conditions. The veteran received an honorable discharge for his first period of service but a dishonorable discharge for his second period, which bars benefits for that period. The Board considered claims for tinnitus, cervical spinal stenosis, lumbar strain, bilateral leg neuropathy, and hip conditions related to his honorable service. Service connection for tinnitus was granted, with the Board finding the veteran's testimony credible and applying the benefit of the doubt due to continuity of symptomatology and a favorable VA examination for hearing loss. Claims for cervical spinal stenosis, lumbar strain, and bilateral leg neuropathy were denied due to a lack of in-service complaints, treatment, or nexus evidence, and the Board found the evidence persuasively against these claims. For hip conditions, the Board granted a 10 percent rating for right hip osteoarthritis with painful extension, finding it warranted the minimum compensable rating due to painful motion. For the left hip, the Board found the evidence weighed against ratings higher than 20 percent for flexion and 10 percent for impairment, but granted a 10 percent rating for painful limitation of extension, applying the benefit of the doubt.

Rationale

Veteran's testimony found credible; Continuity of symptomatology established; Benefit of the doubt applied

Service Branch

AIR FORCE

Special Benefit

NO SPECIAL BENEFIT

Docket No.

240811-462541

Full Decision Text

Citation Nr: A25052248
Decision Date: 06/13/25 Archive Date: 06/13/25

DOCKET NO. 240811-462541
DATE: June 13, 2025

ORDER

Service connection for tinnitus is granted.

Service connection for a neck disability diagnosed as spinal stenosis of the cervical region is denied.

Service connection for a lumbar strain is denied.

Service connection for neuropathy of the bilateral legs is denied.

Entitlement to an initial 10 percent rating, but no higher, for service-connected right hip osteoarthritis, painful extension of the thigh is granted.

Entitlement to an initial disability rating in excess of 20 percent for service-connected left hip osteoarthritis limitation of flexion is denied.

Entitlement to an initial disability rating in excess of 10 percent for service-connected left hip osteoarthritis (impairment) is denied.

Entitlement to an initial 10 percent rating, but no higher, for service-connected left hip osteoarthritis painful limitation of extension is granted.

FINDINGS OF FACT

1. Affording the Veteran the benefit of the doubt, his tinnitus had its onset during service.

2. The Veteran's neck disability was not noted in service and arthritis did not manifest to a compensable degree within the applicable presumptive period, continuity of symptomatology is not established, and the disability is not otherwise etiologically related to an in-service injury or disease.

3. The Veteran's lumbar strain was not shown as chronic in service and the disability is not otherwise etiologically related to an in-service injury or disease.

4. The Veteran's neuropathy of the bilateral legs was not noted in service and the disability is not otherwise etiologically related to an in-service injury or disease

5. The Veteran's service-connected limitation of extension of the left hip has been manifested by painful motion.

6. The Veteran's left hip limitation of motion has not manifested by flexion limited to 20 degrees or less, even considering functional impairment and limitation of motion with repeated use over time and during flare-ups.

7. Affording the Veteran the benefit of the doubt, his left hip impairment has been manifested by limitation of adduction causing the Veteran to be unable to cross his legs.

8. The Veteran's service-connected limitation of extension of the left hip has been manifested by painful motion.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.309.

2. The criteria for entitlement to service connection for a neck disability diagnosed as spinal stenosis of the cervical region have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

3. The criteria for entitlement to service connection for lumbar strain have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

4. The criteria for entitlement to service connection for neuropathy of the bilateral legs have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

5. The criteria for entitlement to a 10 percent disability rating for service-connected right hip osteoarthritis, painful extension of the thigh have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5251.

6. The criteria for entitlement to an initial disability rating in excess of 20 percent for service-connected left hip limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5252.

7. The criteria for entitlement to an initial disability rating in excess of 10 percent for service-connected impairment of the left hip have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.10, 4.14, 4.40, 4
-connected left hip limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5252.

8. The criteria for entitlement to a 10 percent disability rating for service-connected painful limitation of extension of the left hip have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5251.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had two periods of active service in the United States Air Force from October 1979 to March 1985 and from April 1985 to November 1990.

The Veteran was discharged under conditions honorable for VA purposes from his first period of active duty in March 1985. He was dishonorably discharged from his second period of active duty in November 1990. The Department of Veterans Affairs (VA) issued an administrative decision, which found that the period of service from October 1, 1979, to September 1, 1983, was honorable for VA purposes. However, the period of service from September 2, 1983, through November 5, 1990, was dishonorable for VA purposes.

As the period of active duty from September 2, 1983, to November 5, 1990, was dishonorable, it is a bar to VA benefits for that period and service connection cannot be granted for any disability that is related solely to this second period of active-duty service. However, the Board of Veterans' Appeals (Board) will still consider the Veteran's claims for service connection with regard to his honorable period of active service from October 1, 1979, to September 1, 1983. See 38 U.S.C. § 101 (18); 38 C.F.R. § 3.12(a).

This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2023 and August 2024 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO).

A June 2023 rating decision denied, in relevant part, entitlement to service connection for tinnitus, lower back pain, cervical sprain and bilateral lower extremity radiculopathy.

A July 2023 rating decision granted entitlement to service connection for right hip osteoarthritis and assigned a 20 percent disability rating for limitation of flexion, a 10 percent disability rating for limitation of adduction and rotation and a noncompensable rating for limitation of extension.

In July 2023, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a June 2023 rating decision that denied entitlement to service connection for lower back pain, cervical sprain and bilateral lower extremity radiculopathy, and a July 2023 rating decision that awarded a noncompensable rating for service-connected right hip osteoarthritis extension of the thigh.

Also in July 2023, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a June 2023 rating decision that denied entitlement to service connection for tinnitus.

In October 2023, the Veteran another VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and again requested review of a June 2023 rating decision that denied entitlement to service connection for a cervical sprain.

An October 2023 rating decision denied entitlement to service connection for a left hip disability. In October 2023, the Veteran a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of October 2023 denial.

In November 2023, the RO issued a higher-level rating decision which denied a compensable rating for service-connected right hip osteoarthritis and
entitlement to service connection for tinnitus.

In November 2023, the RO issued a higher-level rating decision which denied a compensable rating for service-connected right hip osteoarthritis and denied service connection for a cervical sprain, a lumbar sprain and neuropathy of the bilateral legs.

In November 2023, the RO also issued a higher-level rating decision denying entitlement to service connection for tinnitus.

Although the Veteran initially requested Higher-Level Review when submitting the November 2023 VA Form 20-0996, Decision Review Request: Higher-Level Review with regards to the left hip claim, in March 2024 the Higher-Level Reviewer determined that there had been a duty to assist error and transferred the claim to the Supplemental Claim decision review option for additional development.

An August 2024 rating decision granted entitlement to service connection for left hip osteoarthritis and assigned a 20 percent disability rating for limitation of flexion, a 10 percent disability left hip impairment and a noncompensable rating for left hip limitation of extension.

In the August 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket.

As an appeal in which the appellant requested, on the Notice of Disagreement, direct review by the Board without submission of additional evidence and without a Board hearing, the Board's decision is based on a review of the evidence of record at the time of the respective decisions on the issues on appeal. 38 C.F.R. 20.301.

With regards to the issues presently on appeal, the Board may only consider the evidence of record at the time of their respective agency of original jurisdiction (AOJ) decisions on appeal. 38?C.F.R. § 20.301. Specifically, the June 2023 rating decision denying entitlement to service connection for tinnitus, lower back pain, cervical sprain and bilateral lower extremity radiculopathy; the July 2023 rating decision pertaining to the right hip; and the August 2024 rating decision pertaining to the left hip.

If evidence was submitted after the AOJ issued the decisions on appeal, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300,?20.301, 20.801.

Parenthetically, the Board notes that the Veteran's VA Form 10182 includes the dates of the supplemental claim rating decisions from June and July 2023, which were the subject of Higher-level rating decisions. Therefore, as it pertains to the issues listed on the August 2024 VA Form 10182 that were subject to the subsequent November 2023, March 2024, and August 2024 higher level review rating decisions, the Board will proceed with adjudication. However, the claim regarding service connection for a psychiatric disability was not included the in the Higher-Level review requests noted above and the VA Form 10182 is not timely with respect the claimed psychiatric disorders.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

Service Connection

Generally, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004).

Certain chronic diseases, such as arthritis, will be presumed related to
connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004).

Certain chronic diseases, such as arthritis, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013).

In rendering this decision, the Board has reviewed all evidence of record whether discussed in detail. See Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007) (holding the Board must only discuss the evidence which is relevant to the issues on appeal). To the extent the evidence is found in "approximate balance," the Board will afford the benefit of the doubt in favor of the Veteran. Lynch v. McDonough, 21 F. 4th 776 (Fed, Cir. 2021) (holding that exact equipoise is not required for the benefit of the doubt to be applied, but rather the Veteran is entitled to the benefit of the doubt when the evidence is in approximate balance or "nearly equal").

1. Service connection for tinnitus

The Veteran maintains that he suffers from tinnitus that is etiologically related to his active-duty service. More specifically, the Veteran alleges that the condition is a result of his in-service exposure to hazardous noise.

It is not in dispute that he has tinnitus; tinnitus is a disability capable of lay observation (by the person experiencing it). See Charles v. Principi, 16 Vet. App. 370, 374 (2002).

The Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000).

In this case, the Board finds the Veteran is competent to report regarding the symptoms he experienced, and the Board finds his statements about tinnitus credible. See also Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau, 492 F.3d 1372.

Here, the Board, as finder of fact, concludes that the Veteran has competently and credibly reported his tinnitus began in a period of qualifying service. The Board notes that the Veteran's reports of tinnitus are consistent with the circumstances of his service. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). The Board notes that the Veteran has been awarded service connection for bilateral hearing loss with a 40 percent disability rating, which constitutes a finding of noise exposure during service.

Moreover, tinnitus may be subject to service connection based upon continuity of symptomatology as an "organic disease of the nervous system" under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258, 259 (2015). In this regard, the Veteran has testified that his symptoms of tinnitus began during service and continued since that time. The Board finds no reason to question the Veteran's accounts that he experiences ringing in his ears.
with a 40 percent disability rating, which constitutes a finding of noise exposure during service.

Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Here, the Board finds the Veteran credible in his reports that tinnitus began in service and has continued ever since. The Veteran's statements regarding onset are consistent with the circumstances of his service and with the record as a whole.

In sum, the Board finds that service connection for the Veteran's tinnitus is warranted. The Board notes that the Veteran has credibly reported that he experienced tinnitus in his ears since service and as such, his tinnitus may be presumed to be related to service based on continuity of symptomatology. As was noted previously, as diseases of the nervous system, the Board finds that the Veteran's tinnitus is entitled to the application of this provision. Based on the foregoing and resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for the Veteran's tinnitus is warranted.

2. Service connection for a neck disability diagnosed as spinal stenosis of the cervical region

The Veteran maintains that he suffers from a spinal stenosis that is related to his honorable active-duty service. Specifically, the Veteran maintains that training and lifting during active-duty service was responsible for his spinal stenosis. See March 2022 VA 21-526EZ, Fully Developed Claim (Compensation).

The rating decision on appeal made a favorable finding that the Veteran had a current diagnosis of spinal stenosis in the cervical region. See 38 U.S.C. §§ 5104(b)(4), 5104A; 38 C.F.R. § 20.801(a) (all favorable findings towards claimants are binding upon all subsequent adjudicators, unless clear and unmistakable evidence is shown to the contrary to rebut such favorable findings).

A review of the Veteran's service treatment records for the active-duty period that is honorable for VA purposes reveals no documentation showing complaints, treatment or diagnosis of a cervical spine condition. An August 1982 report of medical examination fails to show any neck abnormalities, and the Veteran denied any other significant medical or surgical history. A November 1982 examination, approximately four months prior to the end of the Veteran's honorable active-duty period, also found no abnormalities with the Veteran's neck.

The Veteran has not been afforded a VA examination with regard to this condition. The Secretary is required to "make reasonable efforts" to assist a claimant in obtaining evidence necessary to substantiate his or her claim for benefits. 38 U.S.C. § 5103A. This includes, among other things, a duty to provide a thorough and contemporaneous medical examination or obtain a medical opinion when either is "necessary to make a decision on the claim." 38 U.S.C. § 5103A(d)(1); 38 C.F.R. § 3.159(c); see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991); 38 C.F.R. § 3.326.

The Secretary is required to provide a medical examination or opinion "if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim" and (1) the record contains competent evidence of a current diagnosed disability or persistent or recurrent symptoms of disease; (2) the evidence establishes that the veteran suffered an in-service event, injury or disease; (3) and the evidence indicates that the claimed disability or symptoms may be associated with the established in-service event, injury or disease or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet.
121, 124 (1991); 38 C.F.R. § 3.326.

The third prong of the analysis sets a "low threshold." McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). As the Court explained in McLendon, evidence that might indicate a potential association between a current disability and service may include "medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation." Id.

In this case there is no indication of an in-service event, injury or disease or any evidence indicating a potential association between the Veteran's current neck disability and service. The Veteran has not specified any in-service injury, event or illness of the neck apart from the note on his application attributing the condition to service.

A review of the Veteran's service treatment records for the active-duty period that is honorable for VA purposes reveals no documentation showing complaints, treatment or diagnosis of a neck condition. An August 1982 report of medical examination fails to show any neck abnormalities, and the Veteran denied any other significant medical or surgical history. A November 1982 examination, approximately four months prior to the end of the Veteran's honorable active-duty period, also found no abnormalities with the Veteran's neck.

Service treatment records from August 1985 show treatment for ongoing complaints of neck pain following a basketball game, however, this is during a period of active duty that is dishonorable for VA purposes.

While the Veteran believes that his neck disability is related to an in-service training and lifting, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007).

As the weight of the evidence is persuasively against the claim, the benefit of the doubt doctrine does not apply, and the claim of service connection for a neck disability, diagnosed as spinal stenosis in the cervical region disorder is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

3. Service connection for a lumbar strain

The Veteran maintains that he suffers from a lumbar spine disability that is related to his active-duty service. The Veteran has not submitted any specific contentions apart from noting on his application that the condition was due to lifting and training during service.

The rating decision on appeal made a favorable finding that the Veteran has been diagnosed with a lumbar strain. The Board is bound by that favorable finding. 38 C.F.R. § 3.104 (c). Therefore, the question before the Board is whether the currently diagnosed condition is related to his to his honorable period of active service from October 1, 1979, to September 1, 1983.

A review of the Veteran's service treatment records for the active-duty period that is honorable for VA purposes reveals no documentation showing complaints, treatment or diagnosis of a lumbar spine condition. An August 1982 report of medical examination fails to show any back abnormalities, and the Veteran denied any other significant medical or surgical history. A November 1982 examination, approximately four months prior to the end of the Veteran's honorable active-duty period, also found no abnormalities with the Veteran's back.

Service treatment records from August 1985 show treatment for ongoing complaints of back pain following a basketball game, however this is during a period of active duty that is dishonorable for VA purposes and precluded from consideration.

Post-service treatment records from July 2015 contain imaging reports showing mild arthritis changes in the lumbar spine without acute abnormalities. The Veteran subsequently sought treatment in March 2018 due to trauma from a motor vehicle accident.

The Board recognizes
of medical examination fails to show any back abnormalities, and the Veteran denied any other significant medical or surgical history. A November 1982 examination, approximately four months prior to the end of the Veteran's honorable active-duty period, also found no abnormalities with the Veteran's back.

The Board recognizes that the Veteran has not been afforded a VA examination to address this claim. However, as the evidence does not show treatment for any low back conditions during or until several decades after separation from active service, the duty to assist does not require such development. 38 C.F.R. § 3.159 (c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, the evidence does not show the presence of low back condition until several decades after separation in connection with a motor vehicle accident.

While the Veteran believes that his back disability is related to an in-service training and lifting, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007).

As the weight of the evidence is persuasively against the claim, the benefit of the doubt doctrine does not apply, and the claim of service connection for a back disorder is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

4. Service connection for sciatic nerve pain

The Veteran maintains that he suffers from sciatic nerve pain that is related to his active-duty service. In his application, the Veteran asserted that the condition is due to lifting and training during active-duty service.

The rating decision on appeal made a favorable finding that the Veteran has been diagnosed with sciatica on the left side. The Board is bound by that favorable finding. 38 C.F.R. § 3.104 (c). Therefore, the question before the Board is whether the currently diagnosed condition is related to his to his honorable period of active service from October 1, 1979, to September 1, 1983, or secondary to a service-connected disability.

The Board has herein determined that the Veteran's lumbar strain is not service connected. Therefore, service connection for a sleep disorder and peripheral neuropathy as secondary to his back disability under 38 C.F.R. § 3.310 must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

The Board notes that the Veteran does not specifically allege, nor does the record reflect, that he first manifested sciatica pain during service or within one year of his separation from service. His service records are silent for any complaints, treatment, or diagnoses referable to neurological symptomology of the lower extremities.

While service connection may be granted on a direct basis, the evidence is persuasively against finding that any right and left lower extremity disability is related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d).

Accordingly, the evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and service connection for sciatic nerve pain is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

Increased Ratings

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U
As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and service connection for sciatic nerve pain is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

Increased Ratings

In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Whether the issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007).

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; separate ratings may be assigned for distinct disabilities resulting from the same injury only where the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition. See 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

Rating schedule for Hips

Under Diagnostic Code 5251, a maximum 10 percent rating is warranted for extension of the thigh limited to 5 degrees. 38 C.F.R. § 4.71a , Diagnostic Code 5251.

Under Diagnostic Code 5252, a 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 20 degrees. A maximum 40 percent rating is warranted for flexion limited to 10 degrees. 38 C.F.R. § 4.71a , Diagnostic Code 5252.

Under Diagnostic Code 5253, a 10 percent rating is warranted for limitation of rotation of affected leg, cannot toe out more than 15 degrees. A 10 percent rating is also warranted for limitation of adduction, cannot cross legs. A maximum 20 percent rating is warranted for limitation of abduction, motion lost beyond 10 degrees. 38 C.F.R. § 4.71a , Diagnostic Code 5253.

Under 38 C.F.R. § 4.71a , Diagnostic Code 5254, which assigns a maximum 80 percent rating for hip flail joint. 38 C.F.R. § 4.71a , Diagnostic Code 5254.

Under 38 C.F.R. § 4.71a , Diagnostic Code 5255, for impairment of the femur, for malunion of the femur, slight knee or hip disability warrants a 10 percent rating, moderate knee or hip disability warrants a 20 percent rating, and marked knee or hip disability warrants a 30 percent rating. A 60 percent rating is warranted for fracture of surgical neck of the femur with false joint. A 60 percent rating is also warranted for fracture of shaft or anatomical neck of the femur with nonunion, without loose motion, weightbearing preserved with aid of brace. A maximum 80 percent rating is warranted for fracture of the shaft or anatomical neck of the femur with nonunion, with loose motion (spiral or oblique fracture). 38 C.F.R. § 4.71a , Diagnostic Code 5255.

Effective February 7, 2021, VA amended the rating criteria for Diagnostic Code 5255. 85 F
or hip disability warrants a 30 percent rating. A 60 percent rating is warranted for fracture of surgical neck of the femur with false joint. A 60 percent rating is also warranted for fracture of shaft or anatomical neck of the femur with nonunion, without loose motion, weightbearing preserved with aid of brace. A maximum 80 percent rating is warranted for fracture of the shaft or anatomical neck of the femur with nonunion, with loose motion (spiral or oblique fracture). 38 C.F.R. § 4.71a , Diagnostic Code 5255.

Effective February 7, 2021, VA amended the rating criteria for Diagnostic Code 5255. 85 F3d. Reg. 76,453 (Nov. 30, 2020). Under the new criteria, malunion of the femur is to be evaluated under Diagnostic Codes 5256, 5257, 5260, or 5261 for the knee, or Diagnostic Codes 5250-5254 for the hip, whichever results in the highest evaluation. The new criteria did not change how fractures of the surgical neck of the femur or fractures of the shaft or anatomical neck of the femur are rated.

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a ; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria.").

In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint."

In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination.

1. Entitlement to an initial compensable rating for service-connected right hip osteoarthritis, extension of the thigh

The Veteran is in receipt of a noncompensable disability rating for service-connected right hip osteoarthritis limitation of extension under 38 C.F.R. § 4.71a Diagnostic Code 5251 from February 16, 2022.

He is separately service connected for right hip osteoarthritis limitation of flexion with a 20 percent rating and right hip osteoarthritis limitation of adduction and rotation with a 10 percent rating also effective February 16, 2022. See July 2023 rating decision.

The Veteran appeals his noncompensable evaluation for limitation of extension of the right thigh.

The Veteran underwent a VA hip and thigh examination in July 2023. On examination the Veteran had initial right hip extension to 20 degrees. With repeated use over time, the examiner estimated that right hip extension would be limited to
§ 4.71a Diagnostic Code 5251 from February 16, 2022.

The Veteran appeals his noncompensable evaluation for limitation of extension of the right thigh.

The Veteran underwent a VA hip and thigh examination in July 2023. On examination the Veteran had initial right hip extension to 20 degrees. With repeated use over time, the examiner estimated that right hip extension would be limited to 15 degrees. The Veteran was examined during a flare-up and extension was to 20 degrees. The Veteran exhibited pain in all ranges of motion as well as at rest.

After review of the lay and medical evidence, the Board finds that initial increased rating for the right hip limitation of extension is warranted. While the Veteran has reported pain and functional limitations, the Veteran's right hip has not manifested in extension limited to 5 degrees or worse at any time during the period on appeal. Nevertheless, while his limitation of extension would not be compensable under Diagnostic Code 5251, he would nevertheless be entitled to the minimum compensable rating (10 percent) for limited hip/thigh extension under 38 C.F.R. § 4.59 based on his documented painful motion.

Assigning a 10 percent rating on this basis would not violate the rule against pyramiding since the Veteran is separately in receipt of a 20 percent rating under diagnostic code 5252 based on limitation of flexion to 30 degrees and limited adduction to a compensable degree under Diagnostic Code 5253. Mitchell, 25 Vet. App. at 39 ; Lyles, 29 Vet. App. at 113 ; Esteban, 6 Vet. App. at 261-62.

In reaching this determination, the Board acknowledges that VA is required "to discount beneficial medication effects when relevant rating criteria do not specifically contemplate medication use." Ingram v. Collins, 38 Vet. App. 130 (2025). Here, the beneficial effects of medication are not known, and, thus, the Board has considered it in the adjudication of this matter, resolving all reasonable in the Veteran's favor.

Therefore, an initial 10 percent rating for service-connected right hip osteoarthritis, painful extension of the thigh is warranted.

2. Entitlement to an initial disability rating in excess of 20 percent for service-connected left hip limitation of flexion.

3. Entitlement to an initial disability rating in excess of 10 percent for service-connected impairment of the left hip.

4. Entitlement to an initial compensable rating for service-connected painful limitation of extension of the left hip.

An August 2024 rating decision granted entitlement to service connection for left hip osteoarthritis (flexion) with a 20 percent rating, left hip osteoarthritis (impairment) with a 10 percent rating and left hip osteoarthritis (extension) with a noncompensable rating, all effective July 26, 2023.

The Veteran contends, generally, he is entitled to higher disability rating for his service-connected left hip limitation of flexion, impairment of the left hip and extension of the left hip.

The Veteran was afforded a VA examination of his hips in June 2023. An examination of his left hip showed that flexion ended at 30 degrees, extension ended at 20 degrees, abduction ended at 20 degrees, adduction ended at 15 degrees, external rotation ended at 30 degrees, and internal rotation ended at 20 degrees. Adduction of left hip was so limited such that he could not cross his legs. Pain was noted in all ranges of motion. There was objective evidence of moderate localized tenderness to palpation of the left hip. Additionally, there was objective evidence of pain with weight bearing and in active motion. The examiner noted that this causes functional loss to include an inability to sit for more than forty to sixty minutes, and difficulty with prolonged walking, squatting, climbing and a limited range of motion.

The Veteran was able not able perform repetitive use testing due to pain. Although he was not being examined immediately after repeated use over time, the examiner estimated that after repeated use over time the Veteran's left hip flexion would end at 25 degrees, extension would end at 20 degrees, abduction would end at 15 degrees, adduction would end at 10 degrees, external rotation would end at 25 degrees, and internal rotation would end at 15 degrees. Although he was not being examined during a flareup of the left hip
examiner noted that this causes functional loss to include an inability to sit for more than forty to sixty minutes, and difficulty with prolonged walking, squatting, climbing and a limited range of motion.

The Veteran was able not able perform repetitive use testing due to pain. Although he was not being examined immediately after repeated use over time, the examiner estimated that after repeated use over time the Veteran's left hip flexion would end at 25 degrees, extension would end at 20 degrees, abduction would end at 15 degrees, adduction would end at 10 degrees, external rotation would end at 25 degrees, and internal rotation would end at 15 degrees. Although he was not being examined during a flareup of the left hip, the examiner estimated that during a flareup, the Veteran's left hip flexion would end at 25 degrees, extension would end at 20 degrees, abduction would end at 15 degrees, adduction would end at 10 degrees, external rotation would end at 25 degrees, and internal rotation would end at 15 degrees.

The examiner also indicated that adduction of the Veteran's hips would be limited such that he would be unable to cross his legs after repeated use over time or during a flareup. Additionally, the examination report reflects that the Veteran did not have ankylosis of the left hip, did not have malunion or nonunion of the femur or flail hip joint, and did not have a leg length discrepancy. The examination report noted that the Veteran regularly used a cane as an assistive device.

The Veteran underwent another VA examination of his left hip in August 2023. An examination of his left hip showed that flexion ended at 45 degrees, extension ended at 25 degrees, abduction ended at 25 degrees, adduction ended at 20 degrees, external rotation ended at 15degrees, and internal rotation ended at 20 degrees. Adduction of the left hip was not limited such that he could not cross his legs. Pain was noted on flexion and adduction. There was objective evidence of localized tenderness or pain on palpation of the left greater trochanteric area. Additionally, there was objective evidence of pain with weight bearing and on non-weightbearing bilaterally and in active and passive range of motion.

The Veteran was able to perform repetitive use testing without further loss of function or range of motion. Although he was not being examined immediately after repeated use over time, the examiner estimated that after repeated use over time the Veteran's left hip flexion would end at 40 degrees, extension would end at 20 degrees, abduction would end at 20 degrees, adduction would end at 15 degrees, external rotation would end at 10 degrees, and internal rotation would end at 15 degrees. Although he was not being examined during a flareup, the examiner estimated that during a flareup, the Veteran's left hip flexion would end at 35 degrees, extension would end at 15 degrees, abduction would end at 15 degrees, adduction would end at 10 degrees, external rotation would end at 5 degrees, and internal rotation would end at 10 degrees.

The examiner also indicated that adduction of the Veteran's hips would not be limited such that he would be unable to cross his legs after repeated use over time or during a flareup. Additionally, the examination report reflects that the Veteran did not have ankylosis of the left hip, did not have malunion or nonunion of the femur or flail hip joint, and did not have a leg length discrepancy. Finally, the examination report noted that he occasionally used a cane as an assistive device.

The Veteran underwent another VA examination of his left hip in March 2024. An examination of his left hip showed that flexion ended at 40 degrees, extension ended at 25 degrees, abduction ended at 25 degrees, adduction ended at 20 degrees, external rotation ended at 15 degrees, and internal rotation ended at 20 degrees. Adduction of left hip was not limited such that he could not cross his legs. Pain was noted on flexion and adduction. There was no objective evidence of localized tenderness or crepitus. Additionally, there was objective evidence of pain with weight bearing and on non-weightbearing bilaterally and in active and passive range of motion. The examiner noted that this causes functional loss to include difficulty squatting, lifting objects, prolonged walking, and standing from a seated position.

The Veteran was able to perform repetitive use testing without further loss of function or range of motion. Although he was not being examined immediately after repeated use over time, the examiner estimated that after repeated use over time the Veteran's left hip flexion would end at 30 degrees, extension would end at 15
cross his legs. Pain was noted on flexion and adduction. There was no objective evidence of localized tenderness or crepitus. Additionally, there was objective evidence of pain with weight bearing and on non-weightbearing bilaterally and in active and passive range of motion. The examiner noted that this causes functional loss to include difficulty squatting, lifting objects, prolonged walking, and standing from a seated position.

The Veteran was able to perform repetitive use testing without further loss of function or range of motion. Although he was not being examined immediately after repeated use over time, the examiner estimated that after repeated use over time the Veteran's left hip flexion would end at 30 degrees, extension would end at 15 degrees, abduction would end at 15 degrees, adduction would end at 10 degrees, external rotation would end at 10 degrees, and internal rotation would end at 10 degrees. Although he was not being examined during a flareup, the examiner estimated that during a flareup, the Veteran's left hip flexion would end at 35 degrees, extension would end at 15 degrees, abduction would end at 15 degrees, adduction would end at 10 degrees, external rotation would end at 10 degrees, and internal rotation would end at 10 degrees.

The examiner also indicated that adduction of the Veteran's hips would not be limited such that he would be unable to cross his legs after repeated use over time or during a flareup. Additionally, the examination report reflects that the Veteran did not have ankylosis of the left hip, did not have malunion or nonunion of the femur or flail hip joint, and did not have a leg length discrepancy. The examination report noted that the Veteran continued occasionally using a cane as an assistive device.

The Veteran's medical treatment records contain treatment for the Veteran's right knee, but they do not contain specific findings which would differ significantly from the above cited information.

The rating decision on appeal assigned an initial 20 percent rating under DC 5252 based on symptoms more nearly approximating flexion limited to 30 degrees. The Board finds that the evidence of record persuasively weighs against a rating in excess of 20 percent.

The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss. VA and private medical records during this time period continued to show complaints of right hip pain with prolonged standing, sitting, and walking. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements would not result in symptoms more nearly approximating flexion limited to 20 degrees.

With regard to impairment of the Veteran's left hip, the rating decision on appeal found that the Veteran was entitled to a 10 percent disability rating under Diagnostic Code 5253 based on limitation of rotation of the thigh, cannot toe-out more than 15 degrees, affected leg. The June 2023 examination also found that the Veteran was unable to cross his legs, which also warrants the same 10 percent rating. However, there is no indication in the record that the Veteran had limitation of abduction with motion lost beyond 10 degrees.

Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Additionally, under 38 C.F.R. § 4.59, painful motion associated with joint or periarticular pathology typically warrants at least the minimum compensable rating for the affected joint. Id. at 36.

While the Veteran did not exhibit limitation of extension of either hip to 5 degrees, the Veteran has reported painful motion with extension. Therefore, the Board finds that a 10 percent minimum rating for the Veteran's painful limitation of extension of the left hip is warranted.

In reaching these determinations, the Board acknowledges that VA is required "to discount beneficial medication effects when relevant rating criteria do not specifically contemplate medication use." Ingram v. Collins, 38 Vet. App. 130 (2025). Here, the beneficial effects of medication are not known and thus the Board has considered it in the adjudication of this matter, resolving all reasonable doubt in the Veteran's favor.

In making its determinations in this case, the Board carefully considered the Veteran's contentions concerning the nature and severity of his service-connected left hip disability. He is competent to describe certain symptoms associated with this disability. The Veteran's history and symptom reports have been considered, including as presented in the medical evidence discussed above. The Board finds these symptoms are contemplated by the criteria of the assigned disability ratings. Moreover
when relevant rating criteria do not specifically contemplate medication use." Ingram v. Collins, 38 Vet. App. 130 (2025). Here, the beneficial effects of medication are not known and thus the Board has considered it in the adjudication of this matter, resolving all reasonable doubt in the Veteran's favor.

In making its determinations in this case, the Board carefully considered the Veteran's contentions concerning the nature and severity of his service-connected left hip disability. He is competent to describe certain symptoms associated with this disability. The Veteran's history and symptom reports have been considered, including as presented in the medical evidence discussed above. The Board finds these symptoms are contemplated by the criteria of the assigned disability ratings. Moreover, the competent medical evidence offering detailed specific findings pertinent to the rating criteria is the more probative evidence regarding evaluating the pertinent symptoms of the service-connected disability at issue. As such, although the Board accepts the Veteran's statements regarding the matters he is competent to address, the Board also relies upon the competent medical evidence regarding the specialized evaluation of functional impairment, symptom severity, and details of clinical features of the service-connected condition at issue.

In summary, the Board concludes that the evidence persuasively weighs against entitlement to an initial rating in excess of 20 percent for service-connected left hip limitation of flexion and for an initial disability rating in excess of 10 percent for service-connected impairment of the left hip. However, an initial rating of 10 percent, but no higher, for the Veteran's service-connected painful limitation of extension of the left hip is warranted.

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T. Berry

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Woehlke, V.

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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