Citation Nr: 1122860 Decision Date: 06/14/11 Archive Date: 06/28/11 DOCKET NO. 05-03 091 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to an evaluation in excess of 20 percent from November 3, 2003 through August 3, 2010 and in excess of 30 percent beginning August 4, 2010 for service-connected paresthesias with weakness of the left quadriceps and anterior thigh (left hip disability). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION Based on the evidence on file, to include the January 2011 grant of a 30 percent rating for service-connected left hip disability, a claim for a total rating based on individual unemployability is raised by the record but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is REFERRED to the AOJ for appropriate action. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (holding that once a veteran submits evidence of a medical disability and submits a claim for an increased disability rating with evidence of unemployability, VA must consider a claim for a total rating based on individual unemployability). The Veteran served on active duty from July 1974 to August 1995. This case was remanded by the Board of Veterans' Appeals (Board) in September 2009 to the Department of Veterans Affairs (VA) Regional Office in Albuquerque, New Mexico (RO) for VA left hip evaluation. A VA evaluation was obtained in August 2010. Consequently, there has been substantial compliance with the September 2009 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998) (Holding that a remand by the Court or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders); see Dyment v. West, 13 Vet. App. 141 (1999)( (holding that remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where there was substantial compliance with remand directives)). FINDINGS OF FACT 1. All known and available service medical records have been obtained; the Veteran has been advised under the facts and circumstances of this case as to the evidence which would substantiate his claim for an increased rating for his left hip disability; and he has otherwise been assisted in the development of his claim. 2. The medical evidence does not show more than moderate incomplete paralysis of the left hip from November 3, 2003 through June 20, 2005. 3. The medical evidence shows severe incomplete paralysis of the left hip since June 21, 2005. CONCLUSIONS OF LAW 1. The criteria for the assignment of a rating in excess of 20 percent from November 3, 2003 through June 20, 2005 for left hip disability have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.124a, including Diagnostic Code 8526 (2004). 2. The criteria for the assignment of an evaluation of 30 percent, but no higher, for left hip disability beginning June 21, 2005 have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.124a, including Diagnostic Code 8526 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes published in Title 38, United States Code ("38 U.S.C.A."); regulations published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.) and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (Implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (The Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). Duty to Assist and Notify The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2010). The regulations implementing VCAA have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied with respect to the issue decided. The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Notice to the Veteran was not sent in this case until later in the claims process. However, VA may proceed with adjudication of a claim if errors in the timing or content of the notice are, as in this case, not prejudicial to the claimant. Dunlap v. Nicholson, 21 Vet. App. 112 (2007); Mayfield v. Nicholson, 19 Vet. App. 103 (2005); see also Pelegrini, 18 Vet. App. at 121. A letter was sent to the Veteran in April 2010 that informed him of the requirements needed to establish entitlement to the issue on appeal. In accordance with the requirements of VCAA, the letter informed the Veteran what evidence and information he was responsible for obtaining and the evidence that was considered VA's responsibility to obtain. No additional private evidence was subsequently added to the claims files after the VCAA letter. In compliance with the duty to notify the Veteran of what information would substantiate his claim, the Veteran was informed in the April 2010 letter on disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. A relevant VA examination was conducted in August 2010. The Board concludes that all available evidence has been obtained and that there is sufficient medical evidence on file on which to make a decision on the issue presented. The Veteran has been given ample opportunity to present evidence and argument in support of his claim. All general due process considerations have been complied with by VA, and the Veteran has had a meaningful opportunity to participate in the development of the claim. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); 38 C.F.R. § 3.103 (2007). Analysis of the Claim An October 204 rating decision granted service connection for left hip disability under the provisions of 38 U.S.C.A. § 1151 and assigned a 20 percent evaluation effective November 3, 2003. A claim for increase was received by VA on April 25, 2005. A January 2011 rating decision granted an increased rating of 30 percent for left hip disability effective August 4, 2010. The Veteran continued his appeal. The Board grants the appeal in part, and assigns a 30 percent rating for left hip disability effective June 21, 2005. A higher evaluation under Francisco is not warranted. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Schedule). 38 C.F.R. Part 4 (2010). The percentage ratings contained in the 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 the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2010). Separate diagnostic codes identify the various disabilities. In considering the severity of a disability it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2010). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Nevertheless, where entitlement to compensation has already been established and an increase in the disability rating is at issue the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. 38 C.F.R. § 4.40 notes that disability of the musculoskeletal system is primarily the inability, due to damage or infection of parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence of part or all of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40 (2010). 38 C.F.R. § 4.45 provides that factors of disability involving a joint reside in reductions of its normal excursion of movements in different planes of motion and therefore, inquiry will be directed to such considerations as weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); excess fatigability; and incoordination (impaired ability to execute skilled movements smoothly). 38 C.F.R. § 4.45 (2010). The Court has held that when a Diagnostic Code provides for compensation based upon limitation of motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must also be considered, and that examinations upon which the rating decisions are based must adequately portray the extent of functional loss due to pain "on use or due to flare-ups." DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). 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 (2010). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. See Butts v. Brown, 5 Vet. App. 532 (1993). The Veteran's peripheral neuropathy of the left hip is rated under the provisions of Diagnostic Code 8526, which involves the anterior crural nerve (femoral). Under Diagnostic Code 8526 (8626, 8726) when there is evidence of mild incomplete paralysis (neuritis, neuralgia), a 10 percent disability rating is assigned. Where there is moderate incomplete paralysis, a 20 percent disability rating is assigned. Where there is severe incomplete paralysis, a 30 percent disability rating is warranted. Where there is complete paralysis of the quadriceps extensor muscles, the maximum 40 percent disability rating is assigned. See 38 C.F.R. § 4.124, Diagnostic Code 8526 (2010). A note to 38 C.F.R. § 4.124a states that the term "incomplete paralysis" where involving peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. Also, when peripheral nerve involvement is wholly sensory, the rating should be for the mild or, at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. Id. The words "mild," "moderate," and "severe" are not defined in the above rating criteria. 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. Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. 38 C.F.R. § 4.123 (2010). Similarly, neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124 (2010). See nerve involved for diagnostic code number and rating. Diagnostic Code 5252 provides a 10 percent rating for limitation of flexion of the thigh to 45 degrees; 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. 38 C.F.R. § 4.71a (2010). Diagnostic Code 5253 provides a 10 percent evaluation when there is limitation of abduction of the thigh such that the legs cannot be crossed or there is limitation of rotation such that it is not possible to toe out more than 15 degrees. A 20 percent rating requires limitation of abduction with motion lost beyond 10 degrees. 38 C.F.R. § 4.71a (2010). VA treatment records dated from June 2003 to June 2005 reveal complaint of left hip and leg pain in November 2004; the Veteran's meralgia paresthetica was noted to be stable. According to a medical report from R.E. Pennington, M.D., dated June 21, 2005, the Veteran complained of severe left hip pain that radiated down his left leg into the groin. The impression was of an examination consistent with peroneal neuropathy, a chronic nerve root irritation in the L5 distribution consisting of a radiculitis of chronic duration and a chronic correlation either supportive of an ilioinguinal or iliohypogastric neuritis versus degenerative joint disease of the left hip. When examined by VA in September 2005, the Veteran said that he was taking pain medication for his left hip, that he stumbled frequently but had learned to avoid falling, and that left thigh and hip pain limited his walking. He was able to stand for 15-30 minutes. Active hip flexion was 0 to 30 degrees, with passive flexion 0 to 125 degrees; there was additional limitation on repetitive use, with motion from 0 to 20 degrees. Extension of the left hip was from 0 to 20 degrees. There was no ankylosis. The diagnosis was paresthesia, dysesthesia, weakness and pain of the left hip secondary to hip adductor, flexor, and abductor nerve injury. There was pain with decreased mobility and strength, as well as paralysis, weakness, numbness, and dysesthesias. According to a November 2006 aid and attendance examination report, the Veteran had muscle weakness and atrophy of the left lower extremity and mild to moderate paresis of the left sciatic nerve. It was also reported that the Veteran experienced frequent foot drop/toe drag and subsequent tripping due to the permanent paresis. A November 2008 electromyogram (EMG) of the left thigh and lumbar paraspinous from L2-L5 was reported to be normal. It was noted that although the etiology of the Veteran's pain was unclear, he did have meralgia paresthetica of the left lateral thigh. Also on file is a May 2010 statement in support of the Veteran's claim from his wife. The Veteran complained on VA evaluation in August 2010 of weakness, pain, and a burning sensation in the left lower extremity. According to the examiner, the Veteran's current symptoms were moderate in severity with intermittent severe spasmodic pain over the left hip region, which was getting progressively worse in severity and frequency. There was hypaesthesia of the mid and outer aspect of the left thigh and decreased muscle bulk of the left quadriceps and calf. The Veteran had decreased strength in the muscles of the left lower extremity. The diagnoses were meralgia paresthetica of the left lateral thigh and asymmetrical neuropathy involving the left leg of uncertain etiology. The medical evidence prior to June 2005 does not show significant treatment for left hip disability, as the condition was reported to be stable in November 2004. The earliest point at which the Veteran displayed symptoms warranting an evaluation in excess of 20 percent for left hip disability was on the June 21, 2005 medical report from Dr. Pennington. When seen by Dr. Pennington in June 2005, the Veteran complained of severe left hip pain that radiated down his left leg into the groin. The impression was of symptomatology consistent with peroneal neuropathy and a chronic nerve root irritation in the L5 distribution consisting of a radiculitis of chronic duration. The Veteran continued to have significant problems when examined by VA in September 2005, as he had paralysis, pain, weakness, and numbness, with active hip flexion to only 30 degrees and additional limitation to only 20 degrees on repetitive use. Consequently, an evaluation of 30 percent is warranted for severe incomplete paralysis of the left hip beginning June 21, 2005 under Diagnostic Code 8526. An evaluation in excess of 30 percent is not warranted for left hip disability during the appeal period under Diagnostic Code 8526 because the evidence does not show complete paralysis, neuritis, or neuralgia of the left hip. An evaluation in excess of 30 percent is also not warranted under Diagnostic Code 5252 because the evidence does not show limitation of flexion of the left thigh to 10 degrees. As previously noted, when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements and 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board finds that the medical evidence does not show left hip symptomatology that, based on the factors noted in DeLuca, 38 C.F.R. § 4.40, and 38 C.F.R. § 4.45, more nearly approximates the criteria for an evaluation in excess of 20 percent prior to June 21, 2005 or in excess of 30 percent beginning June 21, 2005. Although flexion of the left leg was limited to 20 degrees with repetition on VA evaluation in September 2005, which warrants a 30 percent rating under Diagnostic Code 5252, the Veteran has been assigned a 30 percent rating prior to September 2005, as indicated above. Consequently, a rating higher than 30 percent is not warranted under DeLuca. The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 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. 38 C.F.R. § 3.159. Pertinent to a claim for an increased rating, lay testimony is competent when it describes symptoms, which supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see Proscelle v. Derwinski, 2 Vet. App. 629 (1992) (holding that, in general, for the need for a VA examination to arise, a claimant would only need submit his competent testimony that symptoms, reasonably construed as related to the service-connected disability, have increased in severity since the last evaluation.). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). The Veteran is competent to report his peripheral nerve symptoms. His complaints are credible. The Veteran's complaints have been considered in the above noted grant; however, an evaluation for VA purposes have not shown the severity required for a higher schedular, as discussed above. Ordinarily, the Rating Schedule will apply unless there are exceptional or unusual factors, which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). In this case, including the actions taken above, the Veteran warrants a 100 percent rating effective November 29, 2006. According to the regulation, an extraschedular rating is warranted upon a finding that "the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1) (2010). Under Thun v. Peake, 22 Vet. App. 111, 115 (2008), there is a three (3) step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate the Veteran's disability picture, and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. Although the Veteran's left hip disability causes functional impairment, as evidenced by the ratings assigned above, the evidence of record does not show that service-connected disability has markedly interfered with his employment status beyond that interference contemplated by the assigned evaluations. As the Veteran's symptomatology was considered generally moderate in severity when examined in August 2010, the evidence does not show more than severe incomplete paralysis. Moreover, the record does not show that the Veteran has required frequent hospitalizations for his service-connected left hip disability. As the preponderance of the evidence is against the claim for an evaluation in excess of 20 percent for service-connected left hip disability prior to June 21, 2005, the doctrine of reasonable doubt is not for application with respect to this issue. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER A rating in excess of 20 percent from November 3, 2003 through June 20, 2005 for left hip disability is denied. A rating of 30 percent for left hip disability beginning June 21, 2005 is granted, subject to the controlling regulations applicable to the payment of monetary benefits. ______________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs