Citation Nr: 0814775 Decision Date: 05/05/08 Archive Date: 05/12/08 DOCKET NO. 05-35 561A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE What evaluation is warranted for left hip osteoarthritis from September 24, 2002? REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The veteran had active duty from March 1997 to September 2002. This claim comes before the Board on appeal of a May 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. This decision granted service connection for osteoarthritis of the left hip, and assigned a 10 percent disability rating, effective from September 24, 2002. In a January 2007 rating decision the rating was increased to 20 percent, also effective from September 24, 2002. The United States Court of Appeals for Veterans Claims (Court) has indicated that a distinction must be made between a veteran's dissatisfaction with the initial rating assigned following a grant of service connection (so-called "original ratings"), and dissatisfaction with determinations on later- filed claims for increased ratings. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). As such, the Board has styled the issues as indicated on the title page. The appellant presented testimony at a Travel Board hearing chaired by the undersigned Veterans Law Judge in March 2008. A transcript of the hearing is associated with the veteran's claim folder. FINDING OF FACT From September 24, 2002, the veteran's service-connected left hip disorder is manifested by no more than moderate hip disability and limitation of flexion of the thigh is not limited to 20 percent. CONCLUSION OF LAW From September 24, 2002, a rating in excess of 20 percent for left hip osteoarthritis was not warranted. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 4.2, 4.7, 4.10, 4.17a, Diagnostic Codes (Codes) 5003, 5252, 5255 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Preliminary Matters The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. In this regard, in Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the veteran is challenging the initial evaluation assigned following the grant of service connection. In Dingess, the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service- connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. Further, VA fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. The September 2005 statement of the case (SOC) essentially informed the claimant of the need to submit all pertinent evidence in her possession. The claim was readjudicated in a January 2007 supplemental SOC and as part of a January 2008 rating decision. Correspondence dated in March 2006 provided adequate notice of how effective dates are assigned. The claimant has been afforded a meaningful opportunity to participate in the adjudication of the claim, and in the September 2005 SOC she was provided actual notice of the rating criteria used to evaluate the disorder at issue. The claimant was provided the opportunity to present pertinent evidence in light of the notice provided. Because the veteran has actual notice of the rating criteria, and because the claim has been readjudicated no prejudice exists. There is not a scintilla of evidence of any VA error in notifying or assisting the appellant reasonably affects the fairness of this adjudication. Indeed, neither the appellant nor her representative have suggested that such an error, prejudicial or otherwise, exists. Hence, the case is ready for adjudication. Factual Background With the above criteria in mind, the Board notes that the record since September 24, 2002, includes private and VA examinations, and testimony provided by the veteran. The veteran was afforded a private orthopedic examination in January 2005. Possible "AVN" (avascular necrosis) versus leg Perthes disease was diagnosed. Examination showed that the veteran walked with a slight antalgic gait, and had a short stance on her left side. Left hip movement was restricted on internal and external rotation. She complained of discomfort on extremes of both motions, but had no tenderness to palpation. X-rays reported showed deformity of the femoral head with some sclerotic changes at the inferior acetabulum. The report of a private "MRI" (magnetic resonance imaging) dated later in January 2005 showed moderate to moderately severe left hip osteoarthritis. Review of a February 2006 VA fee-basis orthopedic examination shows that the veteran's left hip disorder was not due to injury, but rather when the veteran stopped running during in-service training exercises. She complained of pain, elicited by either physical activity or sleeping on her side; she took over-the-counter medications for relief. She added that she could function when her hip was painful by the use of these medications. The pain was reported to be worse when standing, walking, getting up, and rolling in bed. The veteran added that her hip disorder did not cause incapacitation. Functional impairment was described as walking with a slight twist, and the disorder was not noted to cause the veteran to miss time from work. Examination revealed signs of abnormal weight bearing, and normal posture and gait. The left hip joint showed signs of tenderness. Left hip range of motion findings included 90 degrees of flexion, 20 degrees of extension and adduction, 35 degrees of abduction, 50 degrees of external rotation, and 30 degrees of internal rotation. Normal ranges of motion (in degrees) were noted to be 125 (flexion), 30 (extension), 25 (adduction), 45 (abduction), 60 (external rotation), and 40 (internal rotation). Pain was elicited at the extreme of all motion tests. Left hip joint function was noted to be limited by pain after repetitive use, but not by fatigue, weakness, lack of endurance, or incoordination. Left hip arthritis was diagnosed. The examiner added that the effect of the veteran's left hip disorder on her usual occupation was some discomfort while working as a customer service representative. The effect on her daily activities was reported to be some limitation of physical activities. The veteran was afforded another private orthopedic examination in January 2008. The examiner, the same who examined the veteran in January 2005, indicated that the veteran continued to complain of left hip pain. She only took over-the-counter medications. Examination showed restricted left hip motion with essentially no internal or external rotation. No tenderness on left hip palpation was observed, but some mild groin pain was present. Degenerative arthritis of the left hip was diagnosed. The examiner opined that the veteran would need hip replacement of the and full range of motion of the veteran was last seen about two years earlier. The veteran testified in March 2008 that her left hip disorder prevented her from working out, running, and standing for long periods. See page two of hearing transcript (transcript). She mentioned that she only took over-the-counter medications and that she had pain at night while sleeping. See page three of transcript. She added that she had no stairs in her house, and that while she could walk to the grocery store she could not be on her feet for more than 30 minutes at a time. See pages five and six of transcript, respectively. The veteran testified that her job enabled her to sit. See page six of transcript. She added that she planned on working part-time on the future due to her children. See page seven of transcript. Laws and Regulations Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. In cases where the original rating assigned is appealed, consideration must be given to whether the veteran deserves a higher rating at any point during the pendency of the claim. Fenderson, supra. In a May 2004 rating decision, service connection for left hips osteoarthritis was granted and rated under 38 C.F.R. § 4.71a, Diagnostic Codes (Code) 5255-5003, a 10 percent disability rating was assigned, effective September 24, 2002. In January 2007 the RO increased rating to 20 percent, also effective from September 24, 2002. Code 5255 deals with impairment of the femur. Under that code, malunion of the femur with moderate knee or hip disability warrants a 20 percent evaluation. Malunion of the femur with marked knee or hip disability warrants a 30 percent evaluation. Fracture of surgical neck of femur, with false joint; or fracture of shaft or anatomical neck of femur with nonunion, without loose motion, weight bearing preserved with aid of brace, warrants a 60 percent evaluation. The highest rating available under that code, 80 percent, is warranted for fracture of shaft or anatomical neck of femur, with nonunion, with loose motion (spiral or oblique fracture). The assignment of a particular Code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One Code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis, and demonstrated symptomatology. But any change in a Code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The Board parenthetically notes that as the medical record does not show that the veteran's left hip has been fractured, the use of Code 5255 is inappropriate. The Board has discretion to select a diagnostic code. See Butts v. Brown, 5 Vet. App. 532 (1993) (Boards choice of diagnostic code should be upheld if supported by explanation and evidence). Code 5252 provides a 20 percent rating where flexion is limited to 30 degrees; a 30 percent rating where flexion is limited to 20 degrees; and a 40 percent rating where flexion is limited to 10 degrees. Under 38 C.F.R. § 4.71a, Code 5003, degenerative arthritis (either hypertrophic or osteoarthritis), when established by X-ray findings, is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (Code 5200, etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. The veteran's service-connected left hip disorder is rated, in part, based on limitation of motion. In such cases, the Board must consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, swelling, incoordination, pain on movement, and deformity or atrophy of disuse. 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). 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. With any form of arthritis, painful motion is an important factor of disability. Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. 38 C.F.R. § 4.59. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). When a question arises as to which of two evaluations shall be assigned, the higher evaluation 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. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102. In determining whether a higher rating is warranted for a disease or disability, VA must determine whether the evidence supports the veteran's claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis After considering all of the evidence of record, including particularly the above-referenced examination reports, the Board finds that the veteran's service-connected left hip osteoarthritis does not warrant a rating in excess of 20 percent at any time since September 24, 2002. In this regard, the medical evidence of record fails to demonstrate that the criteria set out in 38 C.F.R. § 4.71a, and necessary for the assignment of a 30 percent or higher rating, had been met. Despite the veteran's complaints of pain and functional limitation, the competent medical evidence is against finding such additional functional limitation such as to warrant an increased under Code 5252. To the contrary, VA fee-basis examination in February 2006 indicated that the veteran had no more than slight to moderate limitation of left hip motion. Also, January 2008 private examination findings, while showing essentially no rotation, did not indicate limitation of motion of the left thigh to 20 degrees. Regarding such a finding, left hip flexion was to 90 degrees in 2006. There was no additional loss of left hip joint function in 2006 due to fatigue, weakness, or lack of endurance. An evaluation in excess of 20 percent is also not warranted under 38 C.F.R. § 4.71a, Codes 5250 or 5254 (2007), as the veteran does not show ankylosis of the hip or a flail joint. Diagnostic studies also rule out malunion and nonunion. Thus, she does not meet or approximate the criteria for a higher evaluation under 38 C.F.R. § 4.71a, Code 5255 (2007). As the 20 percent rating represents the greatest degree of impairment shown from the effective date of the grant of service connection in September 2002, to the present, there is no basis for staged rating pursuant to Fenderson. In conclusion, for these reasons, the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. 38 C.F.R. § 3.102. Thus, the appeal is denied. ORDER A rating in excess of 20 percent for osteoarthritis of the left hip from September 24, 2002, is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs