Citation Nr: 0707225 Decision Date: 03/12/07 Archive Date: 03/20/07 DOCKET NO. 04-29 531 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a rating in excess of 50 percent for residuals of a right total hip replacement. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. McPhaull, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from April 1977 to April 1980 and from February 1982 to February 1999. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2003 rating decision of the Waco, Texas Department of Veterans Affairs (VA) Regional Office (RO), which assigned a 50 percent rating for the veteran's right total hip replacement residuals effective July 1, 2003 (upon re-evaluation at the veteran's request when the 100 percent rating following implantation was terminating). FINDINGS OF FACT The veteran underwent right total hip replacement in May 2002; his residuals of the right total hip replacement are reasonably shown to be manifested by markedly severe residual weakness, pain, and limitation of motion; painful motion or weakness such as to require the use of crutches is not shown. CONCLUSION OF LAW A 70 percent rating is warranted for the veteran's residuals of a right total hip replacement. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (Code) 5054 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his or her possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). A July 2003 letter to the veteran advised him of what type of evidence was needed to establish entitlement to an increased rating (and to submit such evidence), and of his and VA's responsibilities in claims development. A June 2004 statement of the case (SOC) advised the veteran of the criteria for rating hip replacement, of what the evidence showed, and of the basis for the denial of the claim; and a November 2004 supplemental SOC readjudicated the matter after the veteran had opportunity to respond. The veteran is not prejudiced by any notice deficiency, including in timing that might have occurred earlier in the process. The veteran's service medical records have been secured, as well as VA records. The RO arranged for VA examinations. He has not identified any pertinent evidence that is outstanding VA's duty to assist is met. Factual Background The veteran's service medical records show he sustained a right hip injury in October 1994, avascular necrosis of the right femoral head was diagnosed, and he subsequently underwent decompression surgery in July 1995. Service connection for a right hip disability, rated 10 percent, was awarded by an October 1999 rating decision. The veteran underwent right total hip replacement in May 2002. An August 2002 rating decision granted a temporary total rating for the veteran's status post right total hip replacement, effective May 2, 2002, and continuing through the end of June 2003, and assigned a 30 percent rating thereafter. In June 2003 correspondence, the veteran sought an increased rating for his right hip disability. He stated that his right hip had increased in severity. On July 2003 VA examination, the veteran reported right hip pain 5/10 in severity. He also reported he walks one-and one-half miles a day on his job as a custodian at the post office. Physical examination revealed that he had a right leg limp and used a cane. Flexion was 135 degrees, external rotation 45 degrees with pain, and internal rotation was 30 degrees with moderate pain. There was tenderness to palpation about the lateral aspect of the right hip. X-rays showed right hip replacement; ossification in the soft tissues around the neck area, more prominent than on last examination on June 3, 2002; and satisfactory position. VA treatment records from June 2002 to June 2004 include a February 2004 orthopedic outpatient record which shows the veteran did not have any acute complaints or hip pain. He reported that aquatic therapy had helped him significantly with his range of motion and strengthening. Physical examination revealed flexion to 185 degrees, and the right lower extremity was neurovascularly intact. In the his August 2004 Form 9, the veteran asserted that he was entitled to an increased rating because he was in extreme pain and had severe weakness. He reported he could not fully extend his hip, and had fallen on numerous occasions. On November 2004 VA examination, the veteran reported constant pain and numbness that radiates down the outer aspect of his right leg. He also reported that the pain had affected all of aspects of normal daily life for the last three to four months. He reported constant tiredness, dizziness, weakness and erectile problems. He stated he could walk one-fourth mile, however it was with pain. Pain affected his walking, rising from a chair or bed, working at his job and driving his car. He reported weekly flare-ups that lasted one to two hours. Physical examination revealed no tenderness around the surgical scar. The veteran walked with an antalgic gait, and had difficulty walking and standing. Evaluation for sensation revealed decreased pinprick and touch in L4-L5 dermatomal distribution in the right thigh. He was unable to walk briskly or to stand for prolonged periods of time. Forward flexion was to 70 degrees and there was pain throughout the range of motion. Extension was to 15 degrees with pain throughout the range of motion. Adduction was to 15 degrees with pain throughout the range of motion. Abduction was to 30 degrees with pain throughout the range of motion. External rotation was to 45 degrees and internal rotation was to 40 degrees with pain throughout both ranges of motion. The impression was status post right total hip replacement without any dislodgement or changes, but associated with chronic hip pain. It was noted that the veteran took Vicodin for pain. Legal Criteria and Analysis Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. Separate rating codes identify the various disabilities. 38 U.S.C.A. § 1155; 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; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's residuals of a right total hip replacement are currently rated 50 percent disabling under 38 C.F.R. § 4.71a, Code 5054. Under Code 5054, replacement of the hip with a prosthesis warrants a 100 percent rating for a one-year period following implantation of the prosthesis. A 90 percent rating is warranted if following the implantation there is painful motion or weakness such as to require the use of crutches. A 70 percent rating is warranted if there is markedly severe residual weakness, pain, or limitation of motion following implantation of the prosthesis. Chronic residuals consisting of moderately severe weakness, pain, or limited motion warrant a 50 percent rating. Where symptomatology commensurate with less than the criteria for a 50 percent rating is shown by the record, a 30 percent rating is warranted. Normal range of motion of the hip is from 0 to 125 degrees of flexion and 0 to 45 degrees of abduction. 38 C.F.R. § 4.71, Plate II. At the outset, it is noteworthy that the one year 100 percent schedular rating provided following implanatation was no longer warranted in July 2003, as the implantation of the right hip prosthesis took place in May 2002, and a year had transpired. Furthermore, there is no indication in the record that the veteran has weakness or limitation of motion due to his right hip disability of such severity as to require the use of crutches. Use of crutches was not noted in any medical record since July 2003. Consequently, 90 percent schedular rating also is not warranted. However, upon close review of the evidence, and with resolution of reasonable doubt in the veteran's favor, the Board concludes markedly severe residual weakness and limitation of motion are shown, warranting an increased, 70 percent, rating for the right hip disability. Significantly, while the November 2004 VA examiner did not specifically comment regarding the degree of weakness, the noted antalgic gait, difficulty walking, and difficulty standing may all be considered signs of functional impairment associated with substantial weakness. Furthermore, the ranges of motion reported reflect about a 40 percent reduction of flexion, and about 2/3 reduction of abduction from what is considered normal. Finally, regarding pain, it is noteworthy that the veteran takes (and VA apparently prescribes) vicodin, a narcotic medication. In summary, the Board finds that the criteria for a 70 percent rating are reasonably met, and that the criteria for a rating in excess of 70 percent are neither met, nor approximated. ORDER A 70 percent rating is granted for the veteran's residuals of a right total hip replacement, subject to the regulations governing payment of monetary awards. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs