Citation Nr: 0306080 Decision Date: 03/31/03 Archive Date: 04/08/03 DOCKET NO. 95-42 499 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to an increased rating for residuals of fracture of the right femoral head, evaluated as 60 percent disabling from June 1994 through May 17, 2000. 2. Entitlement to an increased rating for residuals of fracture of the right femoral head, status post right total hip replacement, evaluated as 60 percent disabling from July 2001 through March 2002 and 30 percent disabling since April 1, 2002, to include the issue of whether the rating reduction to 30 percent was proper. 3. Entitlement to an increased rating for lumbosacral strain, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Mainelli, Associate Counsel INTRODUCTION The veteran had active service from January 1984 to October 1984. This appeal to the Board of Veterans' Appeals (Board) arises from an October 1995 rating decision by the Pittsburgh, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA). In that decision, the RO increased the rating for lumbosacral strain to 20 percent disabling, and denied claims for a rating in excess of 30 percent for residuals of fracture of the right femoral head and entitlement to a total disability rating based on individual unemployability (TDIU). In January 1997, the RO increased the rating for residuals of fracture of the right femoral head to 60 percent disabling effective to the date of claim. In an October 1998 decision, the Board denied the TDIU claim holding that the veteran was engaged in substantially gainful employment, and remanded the increased rating issues for additional development. The Board remanded the claims again in September 2000. On May 18, 2000, the veteran underwent a right total hip replacement. In August 2001, the RO assigned a total temporary convalescent rating effective May 18, 2000 followed by a schedular 100 percent rating under Diagnostic Code 5054. This rating remained in effect to July 1, 2001 at which time a 60 percent rating was assigned. A January 2002 RO rating decision reduced the 60 percent rating for residuals of fracture of the right femoral head, status post hip replacement to 30 percent which became effective April 1, 2002. The Board has rephrased the issues listed on the title page to reflect the ratings in effect (absent the 100 percent rating) as well as the issue as to whether the rating reduction was proper. See A.B. v. Brown, 6 Vet. App. 35, 38 (1993) (on a claim for an increased rating, the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded). FINDINGS OF FACT 1. Prior to May 18, 2000, the veteran's right hip disability was manifested by chronic right hip pain, significant loss of range of motion with flexion and rotation contractures, marked post-traumatic changes, avascular necrosis and collapse of the femoral head with malunion and loosening of his Richard's compression screw and plate. 2. Since July 1, 2001, the veteran's right hip disability, status post total hip replacement, has been manifested by intermittent right hip pain, range of motion measured as 5-90 degrees of flexion, 40 degrees of abduction, 5 degrees of adduction, 40 degrees of external rotation and neutral internal rotation with additional non-quantifiable functional disability on use. 3. The right hip disability has demonstrated sustained improvement since the right total hip replacement on May 18, 2000 with an overall disability that is moderately severe in nature. 4. The veteran's low back disability is manifested by chronic low back pain, muscle spasm and significant loss of range of motion with exacerbation of symptoms during flare- ups of disability; functionally, his overall disability more closely approximates severe limitation of lumbar spine motion. CONCLUSIONS OF LAW 1. For the time period prior to May 18, 2000, the criteria for a rating in excess of 60 percent for residuals of fracture of the right femoral head have not been satisfied. 38 U.S.C.A. § 1155 (West 1991); 38 U.S.C.A. § 5107(b) (West Supp. 2001); 38 C.F.R. §§ 3.321(b), 4.40, 4.45, 4.71a, Diagnostic Codes 5250, 5254, 5255 (2001). 2. For the time period of July 1, 2001 to April 1, 2002, a rating in excess of the 60 percent schedular rating for right hip disability is not warranted under applicable schedular criteria. 38 U.S.C.A. § 1155 (West 1991); 38 U.S.C.A. § 5107(b) (West Supp. 2001); 38 C.F.R. §§ 3.321(b), 4.40, 4.45, 4.71a, Diagnostic Codes 5054, 5250, 5254, 5255 (2001). 3. Effective April 1, 2002, the status post right total hip replacement is 50 percent disabling according to applicable regulatory criteria. 38 U.S.C.A. § 1155 (West 1991); 38 U.S.C.A. § 5107(b) (West Supp. 2001); 38 C.F.R. §§ 3.105(e), 3.321(b), 3.344(a), 4.40, 4.45, 4.71a, Diagnostic Codes 5054, 5250, 5254, 5255 (2001). 4. Lumbosacral spine disability is 40 percent disabling according to applicable regulatory criteria. 38 U.S.C.A. § 1155 (West 1991); 38 U.S.C.A. § 5107(b) (West Supp. 2001); 38 C.F.R. Part 4, §§ 3.321(b), 4.40, 4.45, 4.7, 4.71a, Diagnostic Code 5292 (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to assist and provide notice Initially, the Board notes that there has been a significant change in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act (VCAA) of 2000. In pertinent part, this law redefines VA's notice and duty to assist requirements. See 38 U.S.C. §§ 5102, 5103, 5103A, and 5107 (West Supp. 2001). The RO has enacted regulations to implement the provisions of the VCAA. 66 Fed. Reg. 45620- 45632 (Aug. 29, 2001). These changes in law are potentially applicable to the claims on appeal. See Karnas v. Derwinski, 1 Vet. App. 308 (1991). Upon review of the record, the Board finds that VA has met the duty to assist and notice requirements under the VCAA. By virtue of a Statement of the Case (SOC) and multiple Supplemental Statements of the Case (SSOC), the RO has advised the veteran (and his representative) of the Reasons and Bases in denying the benefits sought. During the appeal period, the RO has obtained all records and information identified by the veteran as relevant to his claim on appeal. The Board remanded this case in October 1998 and September 2000 in order to obtain a medical examination report which was sufficient for rating purposes. See 38 C.F.R. §§ 4.2, 4.40 and 4.45 (2001). The Board has closely reviewed the August 2001 VA joints examination report with addendum in November 2001, and finds that these examination reports are sufficient for rating purposes, and that the examination reports pertaining to the right hip disability are as full and complete as those used to establish the 60 percent rating. The Board further notes that recent private clinical findings reflect additional improvement in right hip and back symptoms since the last VA examination. These records, which were submitted by the veteran, may be reviewed by the Board without referral to the RO because of new rules amending 38 C.F.R. § 20.1304, published on January 23, 2002, that are applicable to the claim on appeal. The Board, therefore, finds that further development or examination is not warranted. In August 2001, the RO proposed the reduction in the veteran's 60 percent disability evaluation for his right hip disability to a 30 percent rating. In October 2001, the veteran was notified by letter of the contemplated reduction which provided detailed reasons therefor, and given 60 days for the presentation of additional evidence to show that his compensation payments should be continued at their present level. The veteran was also to be informed that his benefits would continue until a predetermination hearing was conducted if such request was made within 30 days from the date of the notice. He was also notified that, if additional evidence was not received within the 60-day period and no hearing is requested, a final rating action would be taken and the award would be reduced effective the last day of the month in which the 60-day period from the date of notice expired. On January 9, 2002, the veteran was notified of the RO's decision to reduce his evaluation for right hip disability from 60 percent to 30 percent, and the effective date of the rating reduction was established as April 1, 2002. The Board, therefore, finds that the RO's reduction of the evaluation of the veteran's right hip disability was procedurally in accordance with the provisions of 38 C.F.R. § 3.105. As this case has been fully developed, proper notice has been issued and there are no outstanding requests to obtain additional evidence or information, the Board finds that no reasonable possibility exists that any further assistance would aid the veteran in substantiating his claims. II. Factual Summary The veteran claims that he is entitled to increased ratings for right hip and lower back disabilities. Briefly summarized, his service medical records reflect that he incurred a Garden Stage III fracture of his right femoral neck in April 1984. He subsequently underwent an open reduction and internal fixation of the right femur. His fracture was noted as healing at the time of his discharge. Post-service, the veteran's private clinical records and VA examination reports reveal a well documented complaint of right hip pain which was exacerbated upon prolonged weight bearing activities, such as walking and standing. He walked with a marked limp to the right leg, and required the use of a cane to assist in ambulation. He had a re-injury to the hip in April 1985 which was thought to be a possible stress refracture in the area of the femur. Thereafter, his x-ray examinations revealed cystic degeneration of the subcondyle bone of the acetabulum and sclerotic changes of the acetabulum. His Richard's compression screw and plate appeared to be loosened and bent. He was noted to have definite atrophy of the gluteal muscle of the right thigh with pain demonstrated on range of motion testing. An October 1985 report from Kimbrough Army Community Hospital reflected impressions of fracture of the base of the right femur neck with incomplete healing, and right hip pain probably secondary to loosened hardware and possible nonunion of the right femur neck. It was also noted that his low back pain may have been related to a gait change. The claim on appeal stems from a VA Form 21-8940 filing, requesting increased compensation based on unemployability, received in June 1994. At that time, the veteran was in receipt of a 30 percent rating for his right hip disability and a non-compensable rating for his low back disability. On VA joints examination, dated in November 1994, he complained of pain in both knees and groins, his right thigh and his low back. His physical examination revealed no deformity or swelling of the right hip with flexion to 80 degrees and abduction to 30 degrees. His left hip demonstrated flexion to 120 degrees, but abduction was not tested due to his inability to weight bear on the right side. His knee joints revealed no swelling or deformity. He had right knee range of motion of 100 degrees of flexion with extension from 0 to 155 degrees. His left knee extension to flexion was 0 to 140 degrees. An examination of his lumbar spine showed a slight postural abnormality without deformity. However, the musculature of the back, particularly the thoracic portion of the right paraspinal muscle, was severely spastic. The lumbar spine showed forward flexion to 90 degrees, backward extension to 2 degrees, lateral flexion to 20 degrees bilaterally with discomfort, and rotation to 40 degrees bilaterally with discomfort. His x-ray examinations were significant for a healed right proximal femoral fracture, small effusion of the right knee, an identified thirteen-rib bearing vertebrae and a transitional lumbosacral vertebrae. He was given the following diagnoses: 1) injury to the right hip resulting in fracture of the upper third of right femur; 2) status post plate insertion of the right femur; 3) arthralgia of right hip, left hip and both knees likely secondary to injury; and 4) low back pain with severe right paraspinal muscle spasm, especially on the thoracic part of the spine, probably secondary to injury of the right femur. In an October 1995 rating decision, the RO increased the rating for lumbosacral strain from 0 to 20 percent disabling. The RO also denied a rating in excess of 30 percent for residuals of fracture of the femoral head. Clinical records from Southwest Medical Center reflect that the veteran presented in September 1995 with complaint of increased pain in the right hip, pelvic area and knee. He underwent physical therapy involving moist heat and non- steroidal anti-inflammatories, and an investigative x-ray examination was suggestive for vascular necrosis of the right femoral head. His examination revealed right hip abduction to only 30 degrees and straight leg raising to 40 degrees with pain. His right femoral head was painful to palpation. He was referred to an orthopedic surgeon for evaluation and treatment with possible right hip replacement. An October 1995 examination by A. Avolio, Jr., M.D., confirmed the presence of avascular necrosis of the right femoral head with a narrowing of the articular cartilage of the right hip area. There was also cystic formation of the femoral head and of the acetabulum. On physical examination, the veteran had pain in the groin on range of motion. He was able to abduct to about 25-30 degrees. He had pain with flexion at about 70 degrees with painful internal rotation of the hip. He was advised of the need for total hip replacement in the near future. In December 1995, the veteran's work attendance was limited to 32 hours per week by physician advice due to his hip condition. His physician later recommended a permanent light duty desk job which precluded him from standing, walking or lifting for long periods of time. A February 1996 examination by Douglas T. Corwin, M.D., noted that the veteran was doing fairly well working 32 hours, but was having increasing difficulties. On examination, the examiner estimated a 1/2 inch shortening discrepancy of the right leg compared to the left. The veteran demonstrated marked limitation of abduction of the hip, but was able to flex to 90 degrees without much difficulty. His external rotation in both flexion and extension was restricted and painful. The examiner provided opinion that the veteran manifested degenerative arthritis in his right hip which appeared to be due to avascular necrosis of the femoral head. It was recommended that the veteran have a trial of non- steroidal anti-inflammatory medication due to the fact that he was very young for a hip replacement. If unsuccessful, then the hip replacement was deemed a reasonable treatment. He didn't appear to be a bone-grafting candidate as the femoral head was beginning to collapse laterally. Arthrodesis was another option but would result in total loss of motion. In April 1996, the veteran appeared and testified at a personal hearing before the RO. He indicated that he was placed on permanent light duty at his postal service job due to his hip condition. He termed his new work status as "marginal" employment. He described difficulty with walking and standing due to pain in his right hip, groin and knee. He had a 1/2 inch shortening of his leg which caused him to limp. He was unable to stand for long periods of time. He was working a 40-hour week in a sedentary position. He was having difficulty driving the one-hour distance to his work facility. He had been diagnosed with avascular necrosis and advised of the need for a hip replacement. On VA joints examination in April 1996, the veteran reported essentially constant pain on the right in the groin which was exacerbated by standing and walking. He was working light duty at the post office, but was having problems making it through the day. He was not using an assistive walking device. He denied bowel, bladder or sexual dysfunction. On physical examination, he ambulated without gait deviation but slight Trendelenburg on the right. His cadence was even but slow. There were no postural or joint deformities. He could heel-toe and tandem walk. His foot was slightly more externally rotated on the right than on the left. His lumbosacral spine showed normal range of active motion. His right leg was 1-centimeter shorter than the left. He had a negative straight leg-raising test. There was no clonus of either ankle. His toes were down bilaterally. All reflexes were 2+ and symmetrical. His lower extremity dermatomes were intact to light touch and his lower extremities were 5/5 with the exception of 4/5 right hip flexors with pain. His right knee range of motion and strength was totally normal and there was no instability. He had some diffuse anterior knee pain which could not be localized. His right hip showed flexion to 95 degrees with pain and extension to 0 degrees. He lacked 10 degrees of internal rotation and was unable to get to neutral. He had an external rotation contracture of 10 degrees. His motion was from 10 to 45 degrees in rotation. He could abduct to 30 degrees with pain. His adduction was neutral. His x-ray examinations showed a normal spine and right knee. He had avascular necrosis (AVN) of the right femur with changes on both sides of the joint, and a crescent sign with collapse of the femoral head. He was given a diagnosis of AVN right femoral head on both sides of the joint. By hearing officer decision dated in January 1997, the veteran was assigned a 60 percent rating for right hip disability as more closely analogous to fracture of the surgical neck of the femur or with false joint, pursuant to Diagnostic Code 5255, effective to the date of claim. The veteran's subsequent private clinical records reveal an attempt to conservatively treat the veteran's severe right hip degenerative joint disease and avascular necrosis short of hip replacement. The veteran underwent another VA joints examination in June 1999. He reported daily and nearly constant deep aching pain involving his back, buttocks, posterior thigh and, sometimes, his right shin and foot. He had constant pain in his right groin and the lateral aspect of the proximal thigh near the right greater trochanter. This hip pain, which also traveled toward the medial aspect of his right knee and caused him to limp, was increased by weight-bearing and attempted motion of the right knee. His right leg lower extremity felt weaker and stiffer than the left. He had difficulty sitting in one location more than 30 minutes, and could only stand for a few moments. His right lower extremity seemed shorter due to flexion contractures at the hip and right knee. He felt his mail handler position was in jeopardy due to his limitations. He carried a cane in his left hand. He took 800-milligram tablets of Ibuprofen, especially at nighttime. On physical examination, the veteran weighed in at 245 pounds. He was able to stand without assistance but did so with approximately 15 degrees of flexion at the low back and preferred to lean to the left to reduce weight bearing on the right leg. His non-assisted walking demonstrated a right gluteal lurch with substantial antalgia favoring the right. His gait pattern was improved with use of a cane but the gluteal lurch and antalgia persisted. There was no atrophy or asymmetry of the low back muscles, but there was spasm of the left paraspinal muscles from L3 to the sacrum and spasm of the right paraspinal muscles throughout much of the lumbar spine. There was tenderness in the midline from L4 to the sacrum and tenderness at the lumbosacral junction and over each posterior superior iliac spine, especially on the right. With forward flexion of the low back, he could move from his position of comfort at 15 degrees of flexion to total flexion of the low back of 60 degrees. He was able to stand erect bringing the spine to 0 degrees of flexion, but could hardly bring the spine into extension. Lateral flexion was uncomfortable and restricted to 15 degrees bilaterally. Rotation of the spine was performed with less discomfort to approximately 20 to 25 degrees on each side. He had a mature 10-inch scar about the lateral thigh. There was tenderness to palpation in each groin but especially on the right. Flexion of the right hip was from 10 to 85 degrees compared to 0 to 125 degrees on the left. He had a right hip flexion contracture of -10 degrees, and left hip extension was not measured. Adduction was 10 degrees on the right and 25 degrees on the left. Right and left abduction was 25 and 45 degrees, respectively. He had an external rotation contracture of the right hip that resulted in -5 degrees of internal rotation. His internal rotation to the left hip was 40 degrees. External rotation was 40 degrees on the right and 60 degrees on the left. There was no appreciable effusion or local heat of either hip joint. His right lower extremity measured 5/8 inches shorter than the left when measured from the anterior superior iliac spine to the medial malleolus, but visually appeared shorter due to the flexion contractures at the right hip and knee. His right thigh measured 3 inches less in circumference than the left at 6 inches above the kneecaps. His right calf was 1.75 inches less in circumference at 3 inches below the tibial tubercle. Deep tendon reflexes at the knees were symmetric and brisk at 2+. His ankle reflexes were absent even with reinforcement. Following review of the veteran's previous x-ray films, the examiner offered diagnoses of healed fracture of the right proximal femur/hip with retained internal fixation hardware, malunion, avascular necrosis and advanced and marked degenerative (post-traumatic) arthritis of the right hip joint. The examiner also gave a diagnosis of low back pain with no evidence of radiculopathy, and offered the following opinion: "In my opinion, the symptoms of pain as described by this veteran are supported by the clinical and radiographic findings. In my opinion, this pain significantly limits his functional ability at baseline and especially during flare-ups. It is my impression that the veteran is not employable for any conventional type of work and that the disability is substantial." The record next reflects that the veteran underwent right total hip replacement with removal of plates and screws in May 2000. The veteran was afforded VA joints examination in November 2000 for further clarification regarding the extent, if any, of functional loss of use of his right hip and low back. He reported frequent right leg give-way secondary to pain, and felt he had a lack of endurance and excess fatigability. This disability severely affected his ability to ambulate and limited the kind of job activities in which he could participate. Even after his recent total hip replacement, he remained in a sedentary job at the post office and continued to ambulate with a cane. He was able to walk 100 yards before taking a break. His pain had decreased to "7/10" which accompanied a decrease in narcotics use to one tablet per day. He no longer felt instability and had slight improvement with his endurance and fatigability. The range of motion in his back was decreased when turning to the right or twisting coronally to the right side, and decreased more considerably during flare-ups. On physical examination, the veteran weighed approximately 250 pounds. He walked with a cane and Trendelenburg-type gait. He was able to stand unassisted, but leaned forward approximately 10 degrees with an exaggerated lumbar lordosis. He was mildly tender over the spinous process of L3. His lumbar spine range of motion was limited to 50 degrees of flexion and 10 degrees of extension. His lateral flexion was 30 degrees on the left and 20 degrees on the right. His rotation was 30 degrees on the left and 20 degrees on the right. His right hip flexion was approximately 5-90 degrees, his internal rotation only to neutral, and his external rotation was to 40 degrees. His left hip flexion was to 100 degrees, internal rotation was to 45 degrees and external rotation painless to 45 degrees. His motor examination was 5/5 throughout with 2+ dorsalis pedis and posterior tibial pulses. He had diffusely decreased sensation in the right foot compared to the left in the deep and superficial peroneal nerve distributions and his sural and saphenous nerve distributions which also corresponded to the L4, L5, and S1 distributions. However, the difference was only slight with no frank numbness. He had no evidence of clonus. He toes were down going with brisk 2+ patellar tendons and Achilles tendons bilaterally. His x-ray examination showed a proximal porus-coated non-cemented total hip replacement. It appeared that the bone had not filled distally and had a proximal fit which, according to the examiner, could explain some of the veteran's continued groin and thigh pain. His lumbar spine x-ray was unremarkable. He was given diagnoses of post right hip total joint arthroplasty secondary to avascular necrosis post-traumatic, and low back strain symptoms with limited range of motion secondary to pain. It was noted that the veteran's use of a cane disrupted his biomechanics and caused him to strain his back. In August 2001, the examiner who conducted the November 2000 VA joints examination noted that the previous examination revealed right hip adduction to 5 degrees and abduction to 40 degrees. It was noted that fatigability to abduction of the hips was demonstrated secondary to weak abductors, some pain with internal rotation, and a Trendelenburg gait on ambulation. Absent examination during a time of flare-up, the examiner was unable to provide any more information on weakened movement, excess fatigability and incoordination other than reporting the history provided by the veteran. The veteran did state that, during a flare-up of back pain, he needed to basically lie flat for a period of time on the floor. A January 2002 RO rating decision reduced the 60 percent rating for residuals of fracture of the femoral head to 30 percent effective April 1, 2002. A February 2002 letter from Dr. Avolio notes that the veteran has been doing fairly well since his hip replacement. There is continued decreased range of motion and occasional pain, and light duty restrictions. An attached medical restriction form from the United States Postal Service reveals the veteran is limited to an 8-hour working day with a maximum of 6 hours of sitting and 1 hour each of walking and standing. He is prohibited from pushing, pulling and/or lifting more than 15 lbs. Furthermore, he is also prohibited from squatting, kneeling and climbing. III. Increased rating Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (2001). Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2001). The determination of whether an increased evaluation is warranted is to be based on a review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In its evaluation, the Board shall consider all information and lay and medical evidence of record. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (West Supp. 2001). The Board considers all the evidence of record, but only reports the most probative evidence regarding the current degree of impairment which consists of records generated in proximity to and since the claims on appeal. See Francisco v. Brown, 7 Vet. App. 55 (1994). In evaluating musculoskeletal disabilities, the Board must assess functional impairment and determine the extent to which a service connected disability adversely affects the ability of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2001). Ratings based on limitation of motion do not subsume the various rating factors in 38 C.F.R. §§ 4.40 and 4.45, which include pain, more motion than normal, less motion than normal, incoordination, weakness, and fatigability. These regulations, and the prohibition against pyramiding in 38 C.F.R. § 4.14, do not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use, including flare-ups. DeLuca v. Brown, 8 Vet. App. 202, 206- 08 (1995). In other words, when rated for limitation of motion, a higher rating may be assigned if there is additional limitation of motion from pain or limited motion on repeated use of the joint. 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 (2001). A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence or normal callosity or the like. Id. The new regulatory provisions promulgated by VA includes the following definitions of the competency of evidence: (1) Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. (2) Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 66 Fed. Reg. at 45631 (to be codified at 38 C.F.R. §3.159(a)). A. Right hip disability Prior to May 18, 2000, the veteran was assigned a 60 percent rating for right hip disability by analogy to fracture of the surgical neck of the femur or with false joint pursuant to Diagnostic Code 5255. See January 1997 Hearing Officer Decision. The severity of a hip disability is ascertained, for VA rating purposes, by application of the criteria set forth in VA's Schedule for Rating Disabilities at 38 C.F.R. § 4.71a. A 70 percent rating would be warranted for intermediate ankylosis of the hip (Diagnostic Code 5250). An 80 percent rating would be warranted for flail hip joint or fracture of the shaft or anatomical neck of the femur with non-union, with loose motion (Diagnostic Code 5254). The evidence in this case demonstrates that, prior to total hip replacement in May 2000, the veteran's right hip disability was manifested by pain, substantial loss of range of motion, flexion and rotation contractures, and antalgic gait. His symptoms were exacerbated on use. The structural integrity of his right hip was compromised by avascular necrosis, advanced and marked post-traumatic arthritis, collapse of the femoral head and malunion with loosening of his Richard's compression screw and plate. On this basis, the RO assigned the 60 percent rating in effect as analogous to fracture of the surgical neck of the femur or with false joint. The evidence, however, does not demonstrate actual ankylosis of the hip, flail hip joint or fracture of the shaft or anatomical neck of the femur. See Shipwash v. Brown, 8 Vet. App. 218, 221 (1995) (citing DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 91 (27th ed. 1988) (ankylosis refers to immobility and consolidation of a joint due to disease, injury, or surgical procedure). Absent such findings, the Board finds no basis upon which to award a rating in excess of 60 percent for the veteran's right hip disability prior to May 18, 2000. On May 18, 2000, the veteran underwent right total hip replacement with removal of plates and screws from his previous surgical correction. He was in receipt of a total rating effective from May 18, 2000 to July 1, 2001. See 38 C.F.R. § 4.71a, Diagnostic Code 5054 (2001). Upon completion of the one year period mandated by Code 5054, the RO assigned a 60 percent schedular rating, again citing to Code 5255. This remained in effect to April 1, 2002 at which time a decision implementing a rating reduction to 30 percent became effective. 38 U.S.C.A. § 3.105(e) (2001). Post- surgery, the RO adjudicated the veteran's right hip disability under the criteria of Diagnostic Code "5054- 5255." The provisions of Diagnostic Code 5054, pertaining to rating of hip replacement (prosthesis) provide as follows: Following implantation of prosthesis with painful motion or weakness such as to require the use of crutches ................ 90 Markedly severe residual weakness, pain or limitation of motion following implantation of prosthesis ............................. 70 Moderately severe residuals or weakness, pain or limitation of motion ................................................................ 50 Minimum rating ..................................................... 30 While the RO decided to rate the veteran's residuals of right total hip replacement by analogy to Diagnostic Code 5255, the provisions of Diagnostic Code 5054 speak directly to rating hip replacement residuals, and the application of an analogous rating is inappropriate on the facts of the post- surgical findings. 38 C.F.R. § 4.20 (2001). Post-surgery, the veteran's VA examinations in August and November 2001 demonstrated that he was capable of weight- bearing although he ambulated with a Trendelenburg-type gait and used a cane for assistance. He denied instability, and noted some improvement in endurance and fatigability. He reported "7/10" pain. His right hip motion measured as flexion to 90 degrees, internal rotation to neutral, external rotation to 40 degrees, adduction to 5 degrees and abduction to 40 degrees. His motor strength was 5/5. He had additional, but non-quantifiable, functional disability on use. The February 2002 letter from Dr. Avolio notes that the right hip disability was doing "fairly well" with continued decreased range of motion and "occasional" pain. Clearly, even if Code 5255 were for application, the veteran would not be entitled to a rating in excess of the 60 percent assigned by the RO. Rating the condition under Code 5054, the Board finds that, following the cessation of the schedular 100 percent rating in July 2001, the veteran's the right hip disability has demonstrated sustained improvement since the right total hip replacement with an overall disability that is moderately severe in nature. In this respect, the veteran has experienced an improvement in pain symptoms, functional disability, and range of motion as compared to the presurgical condition of the hip. He no longer demonstrates instability nor compromise of structural integrity caused by avascular necrosis, degenerative changes of his right hip bone and the loosening of his previous stabilization devices of Richard's compression screw and plate. The evidence also demonstrates that this improvement occurred while the veteran had returned to a level of physical exertion that was appropriate to his right hip disability. As such, the veteran's right hip disability following the cessation of his 100 percent schedular rating in July 2001 is properly evaluated as 50 percent disabling under Diagnostic Code 5054. The Board, therefore, agrees with the RO that a rating reduction is proper, but finds that the appropriate evaluation is 50 percent under Diagnostic Code 5054 rather than an inappropriate analogous 30 percent rating under Diagnostic Code "5054-5255." The Board further finds that the preponderance of the evidence weighs against a rating in excess of 50 percent for right hip disability currently. In this respect, the veteran's right hip motion reported above falls well short of being "markedly severe" even with consideration of his non- quantifiable functional disability on repeated use. See 38 C.F.R. § 4.71, Plate II (2001) (full range of motion of the hip is measured from 0 degrees to 125 degrees in flexion and 0 degrees to 45 degrees in abduction). Physical examination findings of 5/5 strength with non-quantifiable weakness on use also falls well short of being "markedly severe." Furthermore, there is no evidence of actual ankylosis of the hip, flail hip joint or fracture of the shaft or anatomical neck of the femur. Accordingly, there is no basis to consider alternative ratings under Diagnostic Code 5250, 5254 and 5255. In so holding, the Board notes that the veteran is competent to describe his right hip symptoms. In fact, the veteran's report of symptoms has been credible and supported by the examination findings of record. His opinion that his disability warrants an even higher rating, however, is not supported by the schedular criteria pertaining to his right hip disability. The Board also notes that the veteran's right lower extremity shortening, which has been measured as 5/8 of an inch, does not meet the minimum 11/4 inch discrepancy required for a 10 percent rating under Diagnostic Code 5275. Taking all the evidence into consideration, the Board finds that the preponderance of the evidence of record shows that the veteran's 60 percent rating for right hip disability requires reduction to a 50 percent rating consistent with the procedural requirements pertaining to rating reductions. Accordingly, there is no doubt to be resolved in his favor. 38 U.S.C.A. § 5107(b) (West Supp. 2001). B. Lumbosacral strain The veteran also contends that he is entitled to a rating in excess of 20 percent for his service connected low back disability. His disability primarily encompasses limitation of motion and lumbosacral strain. The RO has assigned the 20 percent rating pursuant to Diagnostic Code 5295 which contemplates lumbosacral strain with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position. 38 C.F.R. § 4.71a, Diagnostic Code 5295 (2001). A 40 percent disability rating would be warranted for severe limitation of motion of the lumbar spine (Diagnostic Code 5292) and severe lumbosacral strain (Diagnostic Code 5295). The veteran complains of constant low back pain and restricted range of motion which is exacerbated during flare- ups of disability. His VA examinations in 1994 and June 1999 documented significant muscle spasm throughout his lumbar spine. He demonstrated lumbar spine motion ranging from 60- 90 degrees of flexion, 0-2 degrees of extension, 15-20 degrees of lateral flexion, 20-40 degrees of rotation and a 15 degree exaggerated lumbar lordosis on standing. After his hip replacement in May 2000, he demonstrated 50 degrees of flexion, 10 degrees of extension, 30 degrees of left lateral flexion and rotation, 20 degrees of right lateral flexion and rotation, and a 10 degree exaggeration of lumbar lordosis on standing. Throughout the appeal period, he has consistently reported decreased range of motion with fatigability and decreased endurance on prolonged use. The Board applies the benefit of the doubt rule in favor of the veteran by finding that, with consideration of his credible report of functional impairment on use, the veteran's overall disability more closely approximates severe limitation of lumbar spine motion. 38 U.S.C.A. § 5107(b) (West Supp. 2001); 38 C.F.R. §§ 4.40, 4.45 (2001). Thus, a 40 percent rating is warranted under Diagnostic Code 5292. This is the highest rating under this diagnostic code. This is also the highest rating for a lumbosacral strain pursuant to Diagnostic Code 5295. The Board, however, finds no basis for a higher still rating. The veteran has not been diagnosed with intervertebral disc disease and has otherwise not demonstrated any neurologic deficits. Thus, an alternative 60 percent rating under Diagnostic Code 5293 is not for consideration. The Board finds no other schedular criteria applicable to the case at hand. In making this assessment, the Board has relied upon the veteran's descriptions of his low back symptoms during flare-ups in awarding his 40 percent rating. Based upon his report of symptoms and the provisions of 38 U.S.C.A. § 5107(b) (West Supp. 2001) and 38 C.F.R. §§ 4.40, 4.45, he has been awarded the maximum rating for limitation of motion. The medical findings, however, do not support a basis for further compensation. The Board finally notes that the RO has not referred the veteran's claim to the VA Undersecretary for Benefits or the Director, VA Compensation and Pension Service for the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1). A referral under this provision is only warranted where the disability in question presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. While the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from raising this question, see Floyd v. Brown, 9 Vet. App. 88 (1996), and address referral under where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The record demonstrates that, despite the severity of his symptoms, the veteran has been able to maintain employment at the U.S. Postal Service in a sedentary capacity. As found by the Board in its October 1998 decision, he earns an annual income exceeding $25,000 per year. During the appeal period, he had one period of hospitalization in order to have his total hip replacement performed at which time he was awarded a total compensation rating. His 60 and 40 percent schedular ratings for right hip and low back disability, respectively, adequately compensate him for his impairment in earning capacity. See generally 38 C.F.R. § 4.1 (2001). Having reviewed the record with these mandates and facts in mind, the Board finds no basis for further action on this question. ORDER Prior to May 18, 2000, a rating in excess of 60 percent for residuals of fracture of the right femoral head is denied. For the time period of July 1, 2001 to April 1, 2002, a rating in excess of 60 percent for status post right total hip replacement is denied. In lieu of the reduction to 30 percent, a 50 percent schedular rating for status post right total hip replacement is granted. An increased rating to 40 percent for lumbosacral strain is granted. C.W. Symanski Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.