HIP IMPAIRMENT OF

T. RAYMOND · 2026 · Case ID: A26040590

DENIED

Summary

The veteran, who served in the Army from June 1981 to June 1984 and the Navy from April 1986 to March 1990, appealed the Regional Office's (RO) April 2020 decision which found clear and unmistakable error (CUE) in a December 2018 rating decision. The RO had granted service connection for right and left hip strains with 10% evaluations, effective June 27, 2018, based on painful motion. The RO determined this was CUE because separate ratings for painful motion and limitation of motion under 38 C.F.R. § 4.59 were impermissible due to pyramiding. The Board agreed that assigning two ratings for each hip violated pyramiding rules, making the December 2018 decision clearly and unmistakably erroneous. The Board denied the appeal regarding the hip reductions, finding the RO's revision proper. The veteran also appealed for higher evaluations for his low back, right thigh, left thigh, right hip, and left hip disabilities. The Board denied these claims, finding the evidence did not meet the criteria for higher ratings under the applicable diagnostic codes. For the low back, the Board noted the veteran's flexion was not limited to the degree required for a higher rating, and there was no evidence of severe muscle spasm or abnormal spinal contour. For the thighs and hips, the Board found the veteran's range of motion and other limitations did not meet the criteria for higher or compensable ratings, and that assigning separate ratings for painful motion would constitute pyramiding. The Board also considered the veteran's assertion of arthritis caused by his service-connected foot disability but found the evidence, including a private medical opinion, lacked sufficient objective findings or nexus to warrant a higher rating.

Rationale

CUE found in prior decision regarding pyramiding of ratings for painful motion.; Separate ratings for painful motion and limitation of motion under 38 C.F.R. § 4.59 are impermissible.; Painful motion alone does not constitute functional loss without impact on normal working movements.

Service Branch

NAVY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

200611-93650

Full Decision Text

Citation Nr: A26040590
Decision Date: 04/30/26 Archive Date: 04/30/26

DOCKET NO. 200611-93650
DATE: April 30, 2026

ORDER

The reduction in the disability rating for service-connected right hip strain from 10 percent to noncompensable, effective June 27, 2018, was proper, and revision was appropriate.

The reduction in the disability rating for service-connected left hip strain from 10 percent to noncompensable, effective June 27, 2018, was proper, and revision was appropriate.

Entitlement to an initial rating in excess of 10 percent for a low back disability is denied.

Entitlement to an initial rating in excess of 10 percent for a right thigh disability is denied.

Entitlement to an initial rating in excess of 10 percent for a left thigh disability is denied.

Entitlement to a compensable evaluation for right hip disability is denied.

Entitlement to a compensable evaluation for a left hip disability is denied.

FINDINGS OF FACT

1. The evidence establishes that statutory and regulatory provisions were incorrectly applied when separate disability ratings for right hip strain based on painful motion and limitation of motion were assigned in the December 2018 rating decision.

2. The evidence establishes that statutory and regulatory provisions were incorrectly applied when separate disability ratings for left hip strain based on painful motion and limitation of motion were assigned in the December 2018 rating decision.

3. The Veteran's low back disability does not manifest in 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.

4. The Veteran's right and left thigh disabilities do not manifest in flexion of the thigh limited to 30 degrees or limitation of abduction of the thigh, motion lost beyond 10 degrees.

5. The Veteran's right hip disability is not manifested by extension of the thigh limited to 5 degrees; flexion of limited to 45 degrees; limitation of rotation of the thigh, cannot toe-out more than 15 degrees, affected leg; or, limitation of adduction of the thigh, cannot cross legs.

6. The Veteran's left hip disability is not manifested by extension of the thigh limited to 5 degrees; flexion of limited to 45 degrees; limitation of rotation of the thigh, cannot toe-out more than 15 degrees, affected leg; or, limitation of adduction of the thigh, cannot cross legs.

CONCLUSIONS OF LAW

1. The December 2018 rating decision was clearly and unmistakably erroneous and the revision from a 10 percent rating for right hip strain based on painful motion to a noncompensable rating, effective June 27, 2018, was proper. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.105, 4.59, 4.71a, Diagnostic Codes 4.14, 4.96(a), 4.97, Diagnostic Codes 5251, 52526817, 6847.

2. The December 2018 rating decision was clearly and unmistakably erroneous and the revision from a 10 percent rating for left hip strain based on painful motion to a noncompensable rating, effective June 27, 2018, was proper. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.105, 4.59, 4.71a, Diagnostic Codes 4.14, 4.96(a), 4.97, Diagnostic Codes 5251, 52526817, 6847.

3. The criteria for a rating in excess of 10 percent for a low back disability are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5237.

4. The criteria for entitlement to a rating in excess of 10 percent for a right thigh disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.21, 4.40, 4.45, 4.59, 4.71(a), Diagnostic Codes 5251
5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5237.

5. The criteria for entitlement to a rating in excess of 10 percent for a left thigh disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.21, 4.40, 4.45, 4.59, 4.71(a), Diagnostic Codes 5251, 5252, 5253.

6. The criteria for a compensable rating for a right hip disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.21, 4.40, 4.45, 4.59, 4.71(a), Diagnostic Codes 5251, 5252, 5253.

7. The criteria for a compensable rating for a left hip disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.21, 4.40, 4.45, 4.59, 4.71(a), Diagnostic Codes 5251, 5252, 5253.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from June 1981 to June 1984 and the United States Navy from April 1986 to March 1990.

The rating decision on appeal was issued in April 2020 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. Also, the Veteran's appealed an April 2020 statement of the case (SOC) using the AMA.

In the June 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the April 2020 agency of original jurisdiction (AOJ) decision on appeal and the April 2020 SOC, as well as any evidence submitted by the Veteran or representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal, the April 2020 rating decision or the April 2020 SOC, and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801.

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

In May 2024, the Board adjudicated the claims for higher evaluations. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In August 2025, the Court set aside the Board's May 2024 decisions denying higher evaluations and remanded the issues to the Board for readjudication in compliance with the directives specified. Pursuant to the agreement of the parties to the Joint Motion for Partial Remand, the Board addresses the issues as rating reductions due to a finding of clear and unmistakable error.

Reduction

1. Whether the reduction in the disability rating for service-connected right hip strain
previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

Reduction

1. Whether the reduction in the disability rating for service-connected right hip strain from 10 percent to noncompensable, effective June 27, 2018, was proper, and the revision was appropriate.

2. Whether the reduction in the disability rating for service-connected left hip strain from 10 percent to noncompensable, effective June 27, 2018, was proper, and the revision was appropriate.

By way of background, in the April 2020 rating decision, the Regional Office (RO) determined there was CUE in the December 2018 rating decision that granted entitlement to service connection for right and left hip strains and assigned evaluations of 10 percent, effective June 27, 2018. No proposed reduction was issued because the Veteran's total evaluation was not reduced.

The RO explained that the 10 percent evaluation based on painful motion for the right and left hip was impermissible because painful motion cannot be used for a compensable evaluation when more than one qualifying joint motion is actually limited to a compensable degree.

By operation of law, a previous rating decision by an agency of original jurisdiction is binding and will be accepted as correct in the absence of CUE. 38 C.F.R. §§ 3.104 (a), 3.105 (a). Generally, the issue of CUE arises when claimants allege that there is CUE in a prior, final rating decision. However, an RO can also seek to reverse or revise a prior rating decision on the grounds of CUE. 38 C.F.R. § 3.2600 (e).

Where evidence establishes CUE, the prior decision will be reversed or amended. 38 C.F.R. § 3.105 (a). For the purpose of authorizing benefits, the rating or other adjudicatory decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. Id.

CUE is a very specific and rare kind of "error." It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). The error must be of a type that is outcome-determinative, and subsequently developed evidence may not be considered in determining whether an error existed in the prior decision. See Porter v. Brown, 5 Vet. App. 233, 235-36 (1993); Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999). Notably, a mere disagreement as to how an adjudicator weighed and evaluated the evidence then before it can never rise to the stringent definition of clear and unmistakable error. See Baldwin v. West, 13 Vet. App. 1, 5 (1999); Damrel v. Brown, 6 Vet. App. 242, 246 (1994).

CUE is established when the following conditions are met: (1) either (a) the correct facts in the record were not before the adjudicator, or (b) the statutory or regulatory provisions in existence at the time were incorrectly applied; (2) the alleged error must be "undebatable," not merely "a disagreement as to how the facts were weighed or evaluated"; and (3) the commission of the alleged error must have "manifestly changed the outcome" of the decision being attacked on the basis of CUE at the time that decision was rendered. Evans v. McDonald, 27 Vet. App. 180,185 (2014), aff'd, 642 F.App'x 982 (Fed. Cir. 2016); Damrel, 6 Vet. App. at 245; Russell v. Principi, 3 Vet. App. 310, 313-14 (1992).

In cases where the RO finds CUE in its own decision, the focus is on the evidence of record at the time of the
disagreement as to how the facts were weighed or evaluated"; and (3) the commission of the alleged error must have "manifestly changed the outcome" of the decision being attacked on the basis of CUE at the time that decision was rendered. Evans v. McDonald, 27 Vet. App. 180,185 (2014), aff'd, 642 F.App'x 982 (Fed. Cir. 2016); Damrel, 6 Vet. App. at 245; Russell v. Principi, 3 Vet. App. 310, 313-14 (1992).

In cases where the RO finds CUE in its own decision, the focus is on the evidence of record at the time of the original decision and whether the rating originally assigned was clearly and unmistakably erroneous. Here, the RO found CUE in the December 2018 rating decision and reduced the Veteran's rating effective June 27, 2018.

In the December 2018 rating decision, the 10 percent evaluations for residuals of limitation of right and left hip strains was assigned based on painful motion under 38 C.F.R. § 4.59. In the same rating decision, the Veteran's right and left hip disabilities were granted 10 percent evaluations for limitation of the extension of the thigh to 5 degrees.

Section 4.59 provides that it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. A rating based on this section must be applied in connection with the criteria found in a particular diagnostic code. Sowers v. McDonald, 27 Vet. App. 472, 479 (2016). Section 4.59 applies whether or not arthritis has been diagnosed, and regardless of whether the diagnostic code is predicated on range of motion measurements. Burton v. Shinseki, 25 Vet. App. 1, 5-6 (2011); Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016).

The Board acknowledges the Veteran's representative's argument that it is not error to assign separate evaluations for the painful motion and loss of motion under 38 C.F.R. § 4.59. The argument states that there is no rule, regulation, statute, or binding interpretation of any of these laws that prohibits rating the Veteran's hips in this fashion. However, the Board notes that only one compensable rating can be assigned where there is painful but otherwise noncompensable limitation of movement. In addition, 38 C.F.R. § 4.59 does not permit separate compensable ratings for each joint movement that results in painful motion. Rather, it provides that painful motion warrants at least the minimum compensable evaluation for the joint. See Mitchell v. Shinseki, 25 Vet. App. 32, 39 (2011). Importantly, the evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. 38 C.F.R. § 4.14.

Here, as the Veteran's hip disabilities were each awarded a 10 percent evaluation based upon compensable limitation of extension, the Veteran was not eligible for an additional 10 percent for either hip under Section 4.59 based upon painful motion. The purpose of 4.59 is to minimally compensate Veterans who may not show functional loss on testing but experience pain in movement.

In light of the above, the December 2018 decision assigning the 10 percent ratings for painful motion for the right and left hip, runs afoul of the pyramiding provisions. Thus, there was a mistake of law that manifestly changed the outcome of the decision: had the RO correctly applied the above provisions, the Veteran would not have been assigned two ratings compensating each hip. As such, revision of the December 2018 rating decision based on CUE was proper and the Veteran's appeal must be denied.

Higher Evaluation

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his symptoms.
. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge).

More generally, disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40.

With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45.

In addition, the intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. This regulation also provides that the intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability, and that crepitation should be noted carefully as points of contact which are diseased.

Thus, when assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995).

A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). And although VA is required to apply 38 C.F.R. §§ 4.40 and 4.45, pertaining to functional impairment for disabilities evaluated on the basis of limitation of motion, where the Veteran is in receipt of the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis, these regulations are not for application. Johnston, 10 Vet. App. at 84-85. Moreover, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id.; see 38 C.F.R. § 4.40.

3. Entitlement to an initial rating in excess of 10 percent for a low back disability is denied.

The Veteran asserts his low back disability is more severe than currently evaluated. Disabilities of the spine are currently rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.

The General Rating Formula for Diseases
an initial rating in excess of 10 percent for a low back disability is denied.

The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for 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 spine contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combine 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. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Finally, a 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a.

Note (2) provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. See also Plate V, 38 C.F.R. § 4.71a.

When rating degenerative arthritis of the spine (Diagnostic Code 5242), in addition to consideration of rating under the General Rating Formula for Diseases and Injuries of the Spine, rating for degenerative arthritis under Diagnostic Code 5003 should also be considered. 38 C.F.R. § 4.71a.

Diagnostic Code 5243 provides that IVDS is to be rated either under the 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 the higher rating when all disabilities are combined under 38 C.F.R. § 4.25.

The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides a 10 percent disability rating for IVDS with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent disability is assigned for incapacitating episodes having a total duration of at least two weeks but less than four weeks during than past 12 months. A 40 percent disability rating is assigned for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a.

Note (1) to Diagnostic Code 5243 provides that, for purposes of ratings 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. Note (2) provides that, if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment is to be rated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a.

On the November 2018 VA back examination, the
Diagnostic Code 5243 provides that, for purposes of ratings 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. Note (2) provides that, if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment is to be rated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a.

On the November 2018 VA back examination, the examiner indicated the Veteran has a diagnosis of lumbosacral strain. The Veteran reported that he experiences flare-ups of the back that he describes as sharp pain and stiffness. The Veteran stated he has difficulty with standing and walking for long periods, difficulty with doing household chores, difficulty with heavy lifting, difficulty with bending, and limited range of motion.

On examination in November 2018, the VA examiner observed the Veteran's range of motion to be forward flexion to 70 degrees; extension to 25 degrees; right lateral flexion to 25 degrees; left lateral flexion to 25 degrees; right lateral rotation to 25 degrees; and a left lateral rotation to 25 degrees. The examiner indicated the Veteran has pain on examination that causes functional loss. The examiner observed the Veteran to experience pain in forward flexion, extension, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation. The examiner also noted the Veteran to have pain on weight bearing. The examiner found the Veteran to have less movement than normal due to ankylosis, limitation or blocking, adhesions, etc. The examiner also found there to be loss of range of motion after repetition. The ranges of motion were identified forward flexion to 65 degrees; extension to 20 degrees; right lateral flexion to 20 degrees; left lateral flexion to 20 degrees; right lateral rotation to 20 degrees; and a left lateral rotation to 20 degrees. There was no additional loss of range of motion identified with repeated use over time and flare-ups. The examiner indicated the Veteran did not have guarding or muscle spasm of the spine or ankylosis of the spine.

In a June 2020 private opinion, the medical provider opined that it is more likely than not that the degenerative changes in the Veteran's hips and lumbar spine are proximately caused by his service-connected bilateral foot disability. The medical provider reasoned that the Veteran's bilateral foot disability has worsened, and the Veteran began experiencing pain in the hips and low back. The medical provider stated that these conditions are related to and represent a natural progression of osteoarthritis in the feet and ankles. The medical provider stated that due to chronic inflammation in the joints, stress will be distributed unevenly in the hips and eventually the lower lumbar spine, causing early degeneration in these joints as well. The medial provider cited to medical literature stated that the biomedical forces that related the back and the hip joint to normal and abnormal gait. And an in-depth study of the forces involved clearly show the relationship between gait problems, as the result of foot/ankle arthritis, can "cause or aggravate degenerative change (osteoarthritis)" in the hip and back. Also, the medical provider stated that Dr. R.C., who initially determined the Veteran suffered from arthritis and fallen arches in the feet, stated that the Veteran has degenerative changes in the Veteran's spine and hips are due to osteoarthritis and are likely due to foot arthritis.

Upon review of the record, the Board finds that a rating in excess of 10 percent for the Veteran's lumbar strain is not warranted. To obtain a higher rating, it is necessary to show forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combine 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. Here, however, the Veteran has not been found to have forward flexion greater than 30 degrees but not greater than 60 degrees. The November 2018 VA examiner observed the Veteran's forward flexion to be, at worst, 70 degrees. Further, there is no evidence of guarding, muscle spasm, ankylosis, or IVDS.

The Veteran acknowledges the Veteran's argument that his disability evaluation for the back should be higher based upon flare-ups in his condition. Upon examination in November 2018 the Veteran
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. Here, however, the Veteran has not been found to have forward flexion greater than 30 degrees but not greater than 60 degrees. The November 2018 VA examiner observed the Veteran's forward flexion to be, at worst, 70 degrees. Further, there is no evidence of guarding, muscle spasm, ankylosis, or IVDS.

The Veteran acknowledges the Veteran's argument that his disability evaluation for the back should be higher based upon flare-ups in his condition. Upon examination in November 2018 the Veteran reported that he had flare-ups that resulted in sharp pain and stiffness. However, the examiner considered these statements and found that the examination was medically consistent with the Veteran's statements describing functional loss during a flare-up. In addition, the examiner found that pain, weakness, fatigability, or incoordination significantly limit functional ability with flare-ups. Thus, the Board finds that a higher rating is not warranted for the Veteran's low back disability at any time during the appeal periods.

The Board acknowledges the Veteran's assertion that he has arthritis of the lumbar spine, and the June 2020 private medical opinion states the Veteran's has arthritis caused by the Veteran's service-connected bilateral foot disability. However, the record, to include the June 2020 private medical opinion, does not contain any imaging showing the Veteran to have arthritis. Therefore, the assertion of having a diagnosis of arthritis and June 2020 private medical opinion is not probative. The Board finds that even if the Veteran's back was identified as having arthritis, the Veteran's back is already in receipt of the minimum 10 percent evaluation and there is no indication that the Veteran has episodes of incapacitation. Therefore, a higher evaluation pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5003, is not warranted.

The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, because the weight of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

4. Entitlement to an initial rating in excess of 10 percent for a right thigh disability is denied.

5. Entitlement to an initial rating in excess of 10 percent for a left thigh disability is denied.

6. Entitlement to a compensable evaluation for right hip disability is denied.

7. Entitlement to a compensable evaluation for a left hip disability is denied.

The Veteran asserts that his bilateral thigh disability and bilateral hip disability are more severe than the evaluations currently assigned. Diagnostic Codes 5250, 5254, and 5255 are not applicable because the evidence of record has not shown the Veteran to have ankylosis, impairment or malunion of the femur, or flail joint of the bilateral thighs or bilateral hips.

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

Under Diagnostic Code 5252, a 10 percent rating is assigned for flexion of limited to 45 degrees. A 20 percent rating is assigned for flexion of the thigh limited to 30 degrees. A 30 percent rating is assigned for flexion of the thigh limited to 20 degrees. A 40 percent rating is assigned for flexion of the thigh limited to 10 degrees. 38 C.F.R. § 4.71(a).

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

On the November 2018 VA hip and thigh examination, the examiner indicated the Veteran has a diagnosis of bilateral hip strain. The Veteran described flare-ups of the bilateral hip as pain and stiffness. The Veteran stated he has difficulty with standing and walking for long periods, doing household chores, heavy lifting, and limited range of motion.

On examination in November 2018, the VA examiner observed the Veteran's right hip range of motion to be flexion to 90 degrees; extension to 20 degrees; abduction to 35 degrees; adduction to
cannot cross legs. A 20 percent rating is assigned for limitation of abduction of the thigh, motion lost beyond 10 degrees. 38 C.F.R. § 4.71(a).

On examination in November 2018, the VA examiner observed the Veteran's right hip range of motion to be flexion to 90 degrees; extension to 20 degrees; abduction to 35 degrees; adduction to 20 degrees; external rotation to 40 degrees; and internal rotation to 30 degrees. The examiner stated the Veteran's right hip adduction is not limited such that the Veteran cannot cross legs. The examiner found that pain noted in the right hip on examination, causes functional loss. And the examiner found there to be pain in right hip flexion, extension, abduction, adduction, external rotation, and internal rotation. The examiner observed the Veteran's left hip range of motion to be flexion to 95 degrees; extension to 20 degrees; abduction to 35 degrees; adduction to 20 degrees; external rotation to 40 degrees; and internal rotation to 30 degrees. The examiner indicated that left hip adduction is not limited such that the Veteran cannot cross legs. The examiner found the Veteran to have pain that causes functional loss in the left hip with pain on flexion, extension, abduction, adduction, external rotation, and internal rotation. The examiner observed the Veteran to have pain on non-weight bearing in the bilateral hips. The examiner observed the Veteran to have loss of range of motion after repetitive use testing of the bilateral hip. However, the examiner noted the Veteran does not have ankylosis in the bilateral hip. The examiner indicated the Veteran has less movement than normal in the bilateral hips, interference with sitting, and interference with standing.

In the December 2019 notice of disagreement (NOD), the Veteran stated he was seeking a ten percent rating under Diagnostic Code 5253 for evidence of arthritis and limitation of motion in the bilateral hips.

In a June 2020, private medical opinion, the medical provider opined that it is more likely than not that the degenerative changes in the Veteran's hips and lumbar spine are proximately caused by his service-connected bilateral foot disability. The medical provider reasoned that the Veteran's bilateral foot disability has worsened, and the Veteran began experiencing pain in the hips and low back. The medical provider stated that these conditions are related to and represent a natural progression of osteoarthritis in the feet and ankles. The medical provider stated that due to chronic inflammation in the joints, stress will be distributed unevenly in the hips and eventually the lower lumbar spine, causing early degeneration in these joints as well. The medical provider also noted that the Veteran currently has service connection for "hip strain" rather than arthritis. The medical provider stated that a hip strain is often self-limiting and will resolve with time and it is possible that the Veteran did suffer from hip strain, however, the medical provider stated the Veteran's symptoms were described as "gradual over time" and progressive. The medical provider finds that all this suggests that is ir more likely than not that the Veteran was suffering from hip osteoarthritis, not simply a hip strain. Finally, the medical provider stated that one of the key determinants of the presence of osteoarthritis in the hips is the loss of internal rotation range of motion. The medical provider stated that the Veteran had abnormal internal rotation in both hips, and the inability to cross his legs, both suggesting that this was not an acute "strain" but instead the presence of long-standing, progressive joint degeneration. The medial provider cited to medical literature stated that the biomechanical forces that related the back and the hip joint to normal and abnormal gait. And an in-depth study of the forces involved clearly show the relationship between gait problems, as the result of foot/ankle arthritis, can "cause or aggravate degenerative change (osteoarthritis)" in the hip and back. Also, the medical provider stated that Dr. R.C., who initially determined the Veteran suffered from arthritis and fallen arches in the feet, stated that the Veteran has degenerative changes in the Veteran's spine and hips are due to osteoarthritis and are likely due to foot arthritis.

The Board finds that a disability rating in excess of 10 percent for a right thigh disability is not warranted. To obtain a higher rating, it is necessary to show flexion of the thigh limited to 30 degrees or limitation of abduction of the thigh, motion lost beyond 10 degrees. Here, however, the Veteran has
/ankle arthritis, can "cause or aggravate degenerative change (osteoarthritis)" in the hip and back. Also, the medical provider stated that Dr. R.C., who initially determined the Veteran suffered from arthritis and fallen arches in the feet, stated that the Veteran has degenerative changes in the Veteran's spine and hips are due to osteoarthritis and are likely due to foot arthritis.

The Board finds that a disability rating in excess of 10 percent for a right thigh disability is not warranted. To obtain a higher rating, it is necessary to show flexion of the thigh limited to 30 degrees or limitation of abduction of the thigh, motion lost beyond 10 degrees. Here, however, the Veteran has not been found to have flexion of the right thigh limited to 30 degrees. On examination, the Veteran's flexion is found to be, at worst, 90 degrees. Also, the examiner observed the Veteran's abduction is observed to be 30 degrees. Thus, the Board finds that a higher rating is not warranted for the Veteran's right thigh disability at any time during the appeal.

The Board finds that a disability rating in excess of 10 percent for a left thigh disability is not warranted. To obtain a higher rating, it is necessary to show flexion of the thigh limited to 30 degrees or limitation of abduction of the thigh, motion lost beyond 10 degrees. Here, however, the Veteran has not been found to have flexion of the right thigh limited to 30 degrees. On examination, the Veteran's flexion is found to be, at worst, 95 degrees. Also, the examiner observed the Veteran's abduction is observed to be 35 degrees. Thus, the Board finds that a higher rating is not warranted for the Veteran's left thigh disability at any time during the appeal.

Finally, the Board finds that a compensable rating for a right hip disability and a left hip disability are not warranted. To obtain a compensable rating, it is necessary to show extension of the thigh limited to 5 degrees; flexion of limited to 45 degrees; limitation of rotation of the thigh, cannot toe-out more than 15 degrees, affected leg; or, limitation of adduction of the thigh, cannot cross legs. Here, however, the Veteran has not been found these limitations. The November 2018 VA examiner specifically observed the Veteran's extension of the thigh to be limited to 20 degrees in each hip. Also, flexion is observed to be limited to, at worst, 90 degrees. Further, the examiner did not find any limitation of rotation of the thigh or an inability to cross the legs. Thus, a compensable rating is not warranted for the right hip or left hip disability.

Also, the Board will not assign a separate compensable rating pursuant 38 C.F.R. § 4.59 for actually painful, unstable or malaligned joints for the bilateral hips. Assigning a 10 percent rating for the bilateral hip pain would amount to impermissible pyramiding due to the evaluations of the bilateral thigh. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

The Board acknowledges the June 2020 private medical opinion asserting the Veteran has arthritis of the bilateral hips as well as the argument presented by the Veteran's representative regarding the same. In addition, the Board acknowledges that the VA examiner in November 2018 reported that a 2012 treatment record identified hip osteoarthritis. However, the examiner in November 2018, following complete examination, did not diagnose the Veteran with any hip arthritis disability. The examiner found that the Veteran's disability was solely hip strain. The examination report indicated that a diagnosis of degenerative arthritis or traumatic arthritis required confirmation by imaging studies. The Board finds that even if the Veteran's hips were identified as having arthritis, the Veteran's hips are already in receipt of a 10 percent evaluation based on limitation of motion of the thigh and there is no indication that the Veteran has episodes of incapacitation. Therefore, a higher evaluation pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5003, is not warranted.

Accordingly, for the reasons discussed above, the Board finds that a rating in excess of 10 percent for a right thigh is not warranted; an evaluation in excess of 10 percent for a left thigh disability is not warranted; and a compensable rating for the right hip and left hip disability is not warranted.

Lastly, the Board has considered whether entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) has been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). It is acknowledged that the VA examinations during the period on appeal identify that the Veteran had employment impairment due to his service-connected disabilities. However, the record does not indicate that the Veteran's service-connected disabilities render him unable to secure and follow a substantially gainful occupation. Notably, the Veteran has not indicated that he was unable to maintain substantially gainful employment during the period on appeal. Therefore, the Board finds that entitlement to a TDIU has not been raised by the record.

T. RAYMOND

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Robert J. Burriesci, Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.

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