Citation Nr: 0812085	
Decision Date: 04/11/08    Archive Date: 04/23/08

DOCKET NO.  05-37 142	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, 
Tennessee


THE ISSUES

1.	Entitlement to an increased initial rating for residuals 
of a stress fracture of the left pubic ramus with left hip 
and left groin pain, currently rated as 10 percent disabling.

2.	Entitlement a total disability rating based on individual 
unemployability due to service connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

M. R. Weaver




INTRODUCTION

The veteran served on active duty from May 2002 to July 2003.  
This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a March 2005 rating decision by the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Nashville, Tennessee that granted service connection for 
residuals of stress fracture of the left pubic ramus with 
left hip and left groin pain and assigned a 10 percent 
rating, effective February 15, 2005.  This matter also arises 
from a March 2006 decision that denied entitlement to a total 
disability rating based on individual unemployability (TDIU) 
due to service connected disabilities.


FINDINGS OF FACT

1.	The veteran's residuals of stress fracture of the left 
pubic ramus with left hip and left groin pain is manifested 
by chronic pain and active flexion to 92 degrees with pain 
starting at 80 degrees; active extension was to 30 degrees 
with pain beginning at 26 degree; abduction was to 30 degrees 
with pain beginning at 10 degrees; adduction to 24 degrees 
with pain beginning at 20 degrees; internal rotation to 40 
degrees with pain beginning at 30 degrees; and external 
rotation to 40 degrees with pain starting at 32 degrees.  

2.	The veteran's residuals of stress fracture of the left 
pubic ramus with left hip and left groin pain are not 
productive of moderate hip disability.  

3.	The veteran has a single service-connected disability, 
residuals of stress fracture of the left pubic ramus with 
left hip and left groin pain, which has been rated as 10 
percent disabling since February 15, 2005.  The evidence does 
not show that her disability is of such severity so as to 
preclude substantially gainful employment.



CONCLUSIONS OF LAW

1.	The criteria for a rating in excess of 10 percent for 
residuals of stress fracture of the left pubic ramus with 
left hip and left groin pain have not been met.  38 U.S.C.A. 
§§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, 
Diagnostic Codes 5003, 5250, 5251, 5252, 5253, 5254, 5255 
(2007).

2.	The criteria for the assignment of a TDIU rating have not 
been met, and there is no evidence to warrant referral for 
consideration of individual unemployability on an extra-
schedular basis.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. 
§§ 3.340, 3.341, 4.16 (2007). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Upon receipt of a complete or substantially complete 
application, VA must notify the claimant and any 
representative of any information, medical evidence, or lay 
evidence not previously provided to VA that is necessary to 
substantiate the claim.  This notice requires VA to indicate 
which portion of that information and evidence is to be 
provided by the claimant and which portion VA will attempt to 
obtain on the claimant's behalf.  See 38 U.S.C.A. §§ 5103, 
5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. § 3.159 
(2007).  The notice must:  (1) inform the claimant about the 
information and evidence not of record that is necessary to 
substantiate the claim; (2) inform the claimant about the 
information and evidence that VA will seek to provide; (3) 
inform the claimant about the information and evidence the 
claimant is expected to provide; and (4) request or tell the 
claimant to provide any evidence in the claimant's possession 
that pertains to the claim, or something to the effect that 
the claimant should "give us everything you've got 
pertaining to your claim(s)."  Pelegrini v. Principi, 18 
Vet. App. 112 (2004).  

Here, the RO sent correspondence in March 2005 and December 
2005; rating decisions in March 2005 and March 2006; 
statements of the case in September 2005 and July 2006; and a 
supplemental statement of the case in July 2006.  These 
documents discussed specific evidence, the particular legal 
requirements applicable to the claims, the evidence 
considered, the pertinent laws and regulations, and the 
reasons for the decision.  VA made all efforts to notify and 
to assist the appellant with regard to the evidence obtained, 
the evidence needed, the responsibilities of the parties in 
obtaining the evidence, and the general notice of the need 
for any evidence in the appellant's possession.  The Board 
finds that any defect with regard to the timing or content of 
the notice to the appellant is harmless because of the 
thorough and informative notices provided throughout the 
adjudication and because the appellant had a meaningful 
opportunity to participate effectively in the processing of 
the claims with an adjudication of the claims by the RO 
subsequent to receipt of the required notice.  There has been 
no prejudice to the appellant, and any defect in the timing 
or content of the notices has not affected the fairness of 
the adjudication.  See Mayfield v. Nicholson, 19 Vet. App. 
103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 
2006) (specifically declining to address harmless error 
doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473 
(2006).  Thus, VA has satisfied its duty to notify the 
appellant and had satisfied that duty prior to the 
adjudication in the November 2006 supplemental statement of 
the case.

In addition, all relevant, identified, and available evidence 
has been obtained, and VA has notified the appellant of any 
evidence that could not be obtained.  The appellant has not 
referred to any additional, unobtained, relevant, available 
evidence.  VA has also obtained a medical examination in 
relation to this claim.  Thus, the Board finds that VA has 
satisfied both the notice and duty to assist provisions of 
the law.

Increased Ratings

Disability ratings are determined by the application of the 
VA Schedule for Rating Disabilities.  Separate diagnostic 
codes (DCs) identify the various disabilities.  38 U.S.C.A. 
1155 (West 2002); 38 C.F.R. Part 4.  The percentage ratings 
contained in the Rating Schedule represent, as far as can be 
practicably determined, the average impairment in earning 
capacity resulting from diseases and injuries incurred or 
aggravated during military service, and their residual 
conditions in civil occupations.  38 C.F.R. § 4.1.  

In determining the level of impairment, the disability must 
be considered in the context of the whole recorded history.  
38 C.F.R. §§ 4.2, 4.41.  The Board will consider entitlement 
to staged ratings to compensate for times since filing the 
claim when the disability may have been more severe than at 
other times during the course of the claim on appeal.  
Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. 
Mansfield, 21 Vet. App. 505 (2007).  Where there is a 
question as to which of two disability ratings shall be 
applied, the higher rating will be assigned if the disability 
picture more nearly approximates the criteria required for 
that rating.  Otherwise, the lower rating will be assigned.  
38 C.F.R. § 4.7.

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.  It is essential that the examination upon which 
ratings are based adequately portray the anatomical damage, 
and the functional loss, with respect to all these elements.  
The functional loss may be due to absence of part, or all, of 
the necessary bones, joints and muscles, or associated 
structures, or to deformity, adhesions, defective 
innervation, or other pathology, or it may be due to pain, 
supported by adequate pathology and evidenced by the visible 
behavior of the claimant 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.  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 of normal callosity or the 
like.  38 C.F.R. § 4.40.

With respect to the joints, the factors of disability reside 
in reductions of their normal excursion of movements in 
different planes. Inquiry will be directed to these 
considerations: (a) less movement than normal (due to 
ankylosis, limitation or blocking, adhesions, tendon-tie-up, 
contracted scars, etc.); (b) more movement than normal (from 
flail joint, resections, nonunion of fracture, relaxation of 
ligaments, etc.); (c) weakened movement (due to muscle 
injury, disease or injury of peripheral nerves, divided or 
lengthened tendons, etc.); (d) excess fatigability; 
(e) incoordination, impaired ability to execute skilled 
movements smoothly; and (f) pain on movement, swelling, 
deformity or atrophy of disuse.  Instability of station, 
disturbance of locomotion, interference with sitting, 
standing and weight- bearing are related considerations.  38 
C.F.R. § 4.45.

All potentially applicable diagnostic codes must be 
considered when evaluating disability.  However, care must be 
taken not to evaluate the same manifestations of disability 
under more than one applicable code which would constitute 
impermissible pyramiding.  38 C.F.R. § 4.14.  Where separate 
and distinct manifestations have arisen from the same injury, 
separate disability ratings may be assigned where none of the 
symptomatology of the conditions overlaps.  Esteban v. Brown, 
6 Vet. App. 259 (1994).

The provisions regarding pyramiding allow consideration of a 
higher rating based on greater limitation of motion due to 
pain on use, including flare-ups.  38 C.F.R. § 4.14.  The 
provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, however, 
are applicable only in conjunction with the diagnostic codes 
predicated on limitation of motion.  Johnson v. Brown, 9 Vet. 
App. 7 (1996).  

The veteran's residuals of stress fracture of the left pubic 
ramus with left hip and left groin pain has been assigned a 
10 percent rating for chronic pain under DC 5299-5255 
(impairment of the femur).  38 C.F.R. §4.71a, DC 5255.  Under 
that code, a minimum compensable disability rating of 10 
percent is assigned for malunion of the femur with slight 
knee or hip disability.  A 20 percent disability rating 
contemplates malunion of the femur with moderate knee or hip 
disability.  A 30 percent disability rating contemplates 
malunion of the femur with marked knee or hip disability.  A 
60 percent disability rating contemplates fracture of 
surgical neck of the femur with false joint, or fracture of 
shaft or anatomical neck of the femur with nonunion, without 
loose motion, weightbearing preserved with aid of brace.  
Finally, an 80 percent disability rating, the highest rating 
assignable under this code, contemplates fracture of shaft or 
anatomical neck of the femur with nonunion, with loose motion 
(spiral or oblique fracture).  

The words slight, moderate, and severe are not defined in the 
Rating Schedule.  Rather than applying a mechanical formula, 
the Board must evaluate all of the evidence to the end that 
its decisions are equitable and just.  38 C.F.R. § 4.6 
(2007).

Other diagnostic codes that pertain to disabilities of the 
hip and thigh include 5250 (hip ankylosis), 5251 (limitation 
of thigh extension), 5252 (limitation of thigh flexion), 5253 
(thigh impairment), and 5254 (hip flail joint).

Normal ranges of motion of the hip are from hip flexion from 
0 degrees to 125 degrees, and hip abduction from 0 degrees to 
45 degrees.  38 C.F.R. § 4.71, Plate II.  

The veteran's service medical records show that she was 
diagnosed with a subacute stress fracture of the interpubic 
ramus on the left with a circumferential callus along the 
left pubic ramus inferior border in March 2003.  VA 
outpatient records show that she subsequently found out that 
she was pregnant in April 2005.  In a June 2005 statement, 
the veteran stated that her hip condition would complicate 
natural childbirth.  However, she gave birth to a son 
vaginally in October 2005.   

The veteran's hip was x-rayed by a private physician in 
December 2005.  The results showed slight irregularity of the 
inferior pubic ramus but no definite acute changes to explain 
the veteran's pain.  An MRI was recommended for further 
evaluation.

During a January 2006 VA examination, the veteran reported 
having pain, weakness, stiffness, swelling, popping, and 
locking in her left hip and thigh.  She also claimed to have 
pain, weakness, and stiffness in her right hip.  Physical 
examination revealed that the veteran's gait was antalgic.  
In her left hip, the veteran had flexion of 0 to 92 degrees 
on active motion against gravity with pain starting at 80 
degrees and 0 to 112 degrees on passive range of motion with 
pain beginning at 80 degrees.  Her left hip extension was 0 
to 30 degrees with pain beginning at 26 degrees on active 
motion against gravity.  Left hip abduction was 0 to 30 
degrees with pain beginning at 10 degrees.  Left hip 
adduction was 0 to 24 degrees with pain beginning at 20 
degrees.  Left hip internal motion was 0 to 40 degrees with 
pain beginning at 30 degrees.  Left hip external rotation was 
0 to 40 degrees with pain starting at 32 degrees.  Left knee 
flexion was 0 to 140 degrees with pain beginning at 120 
degrees and additional limitation of motion on repetitive 
use.  The veteran complained of increased pain on repetitive 
movements in the left hip but did not have limitation of 
motion. 

The examiner noted tenderness and abnormal motion in the left 
hip and painful movement in the right hip.  Multiple 
radiographs of both hips were unremarkable.  There was no 
evidence of fractures, dislocations, or degenerative changes.  
The veteran was diagnosed with a healed fracture of the left 
pubic ramus and arthralgia of the left hip.  The examiner 
stated that the hip injury had a severe effect on the 
veteran's ability to do chores, shop, exercise, travel, 
recreate, bathe, and dress.  

Notes from a private physician from November 2005 to August 
2006 show that the veteran complained of and was treated for 
chronic hip and pelvic pain.  Lay statements submitted in 
April 2006 by the veteran's brother, mother, friend, uncle, 
grandmother, and grandfather all indicate that the veteran's 
disability makes it difficult for her to sit, stand, and walk 
for prolonged periods of time. 

Applying the law to the existing facts, the Board finds that 
the evidence does not demonstrate the requisite objective 
manifestations for a disability evaluation in excess of the 
current 10 percent assigned under DC 5255.  The medical 
evidence does not support a conclusion that the veteran has a 
moderate left hip or knee disability.  And, the other DCs 
that pertain to disabilities of the hip and thigh do not 
apply.  Ankylosis is not shown.  The veteran's thigh 
extension is not limited to 5 degrees.  Her thigh flexion is 
not limited to 45 degrees.  The evidence does not show that 
her thigh abduction is lost beyond 10 degrees, or that she 
cannot cross her legs or "toe-out" more than 15 degrees.  
While the evidence shows that the veteran is capable of thigh 
abduction to 30 degrees, with pain at 10 degrees, the DC in 
question requires that motion be lost beyond 10 degrees, 
which is not shown by the evidence of record.  No problems 
are noted with a hip flail joint.  Therefore, DCs 5250, 5251, 
5252, 52353, and 5254 do not provide a basis for a higher 
rating.  

There are no X-ray findings of arthritis.  Thus, Diagnostic 
Code 5003, which applies to the rating of degenerative 
arthritis, is not for application.  38 C.F.R. § 4.71a, 
Diagnostic Code 5003.

The Board notes the lay statements from the veteran's 
relatives claiming that her disability impacts her ability to 
sit, stand, and walk for prolonged periods of time.  However, 
the current 10 percent rating contemplates functional loss 
due to painful motion.  The Board has also considered the VA 
examiner's conclusion that the veteran's disability has a 
severe impact on her daily activities.  Yet, the use of 
terminology such as mild, moderate, or severe by VA examiners 
and others, although an element of evidence to be considered 
by the Board, is not dispositive of an issue.  Rather than 
applying a mechanical formula, the Board must evaluate all of 
the evidence to the end that its decisions are equitable and 
just.  38 C.F.R. § 4.6.  The evidence does not show that the 
veteran's disability meets any of the criteria for a higher 
rating.

The Board has also considered whether the veteran should be 
awarded a separate percentage evaluation for the period of 
her pregnancy.  However, the evidence shows that the 
veteran's hip disability did not affect her ability to carry 
or give natural birth to her son.  The evidence also does not 
show that she met any of the rating criteria for a higher 
rating during that period.  Therefore, the Board concludes 
that her service-connected disability has not been productive 
of symptoms that warrant a higher rating at any time during 
the appeals period.  Fenderson v. West, 12 Vet. App. 119 
(1999).

In summary, the Board finds that a disability rating in 
excess of 10 percent is not warranted for the service-
connected residuals of stress fracture of the left pubic 
ramus with left hip and left groin pain under the provisions 
of DC 5255 for the reasons and bases described above.  The 
Board finds that the preponderance of the evidence is against 
the claim and the claim must be denied.  38 U.S.C.A. 
§ 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Total Disability Based on Individual Unemployability

The veteran contends that she cannot hold a job because her 
service-connected disability makes it impossible for her to 
sit or stand for long periods of time.  

TDIU may be assigned where the schedular rating is less than 
total, when it is found that the disabled person is unable to 
secure or follow a substantially gainful occupation as a 
result of a single service-connected disability rated at 60 
percent or more, or as a result of two or more disabilities, 
provided at least one disability is rated at 40 percent or 
more, and there is sufficient additional service-connected 
disability to bring the combined rating to 70 percent or 
more.  For this purpose, disabilities resulting from common 
etiology or a single accident, or multiple injuries incurred 
in action are considered as one disability.  38 U.S.C.A. § 
1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a).

In evaluating a veteran's employability, consideration may be 
given to her level of education, special training, and 
previous work experience in arriving at a conclusion, but not 
to her age or impairment caused by non service-connected 
disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19.

Substantially gainful employment is that employment which is 
ordinarily followed by the non-disabled to earn their 
livelihood with earnings common to the particular occupation 
in the community where the veteran resides.  Moore v. 
Derwinski, 1 Vet. App. 356 (1991).  Marginal employment shall 
not be considered substantially gainful employment.  38 
C.F.R. § 4.16(a).

In this case, the veteran does not meet the statutory 
requirements for consideration for the rating because she 
does not have a single service-connected disability rated as 
60 percent or more.  She also does not have two or more 
service-connected disabilities, with at least one disability 
is rated at 40 percent or more, and sufficient additional 
service-connected disability to bring the combined rating to 
70 percent or more.  She has a single disability that is 
evaluated as 10 percent disabling.  Hence, she does not meet 
the minimum schedular criteria for a TDIU.

The evidence also does not show that extra-schedular 
consideration is appropriate. The Board notes that the 
veteran has alleged that complete unemployability necessarily 
arises solely due to difficulties with standing and sitting.  
However, the Board does not agree.  The record does not 
indicate that the veteran has ever been terminated or chosen 
to leave a job because of difficulties sitting or standing.  
In fact, the January 2006 VA examination report stated that 
she has not been employed since separating from the military 
in 2003.  However, the evidence does not show that her 
unemployment is due solely to her service-connected hip 
disability.

Based on the foregoing, the Board finds that the weight of 
the credible evidence demonstrates that the veteran's 
residuals of stress fracture of the left pubic ramus with 
left hip and left groin pain do not warrant entitlement to 
TDIU.  As the preponderance of the evidence is against this 
claim, the Board must deny the claim.  38 U.S.C.A. § 5107(b); 
Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to an increased initial rating for residuals of a 
stress fracture of the left pubic ramus with left hip and 
left groin pain, currently rated as 10 percent disabling is 
denied.

Entitlement a total disability rating based on individual 
unemployability due to service connected disabilities is 
denied.  



______________________________________________
HARVEY P. ROBERTS
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs