Citation Nr: 1227872	
Decision Date: 08/13/12    Archive Date: 08/21/12

DOCKET NO. 09-27 698	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia


THE ISSUES

1. Entitlement to an initial disability rating greater than 30 percent for a right hip disability from June 19, 2008 to October 21, 2008.

2. Entitlement to an initial disability rating greater than 50 percent for a right hip disability, status post right hip replacement, with atrophy to Muscle Groups XIII and XIV, since December 1, 2009. 


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Paul S. Rubin, Counsel


INTRODUCTION

The Veteran had active military service in the U.S. Air Force from June 2003 to June 2006.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia.

In July 2011, the Veteran presented testimony at a Travel Board hearing at the RO before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims folder.

The Board remanded this case in November 2011 for further development. After completion of this development by the RO, the case has been returned to the Board for further appellate consideration.

In the November 2011 decision, the Board also granted entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, effective December 2009. This issue is no longer before the Board. 

A review of the Virtual VA paperless claims processing system reveals additional, pertinent VA treatment records dated from May 2010 to July 2010. These records are not present in the claims folder. In any event, in the January 2012 Supplemental Statement of the Case (SSOC), the RO indicated that it had reviewed these records in the Virtual VA system. Thus, there is no prejudice to the Veteran if the Board considers this evidence. See 38 C.F.R. §§ 19.31(b), 19.37(a) (2011); Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). 



FINDINGS OF FACT

1. From June 19, 2008 to October 21, 2008, the Veteran's right hip disability is manifested by a chondroblastoma (tumor) causing flexion limited to 40 degrees with consideration of pain, with no additional loss of motion upon repetition. 

2. As of December 1, 2009, the Veteran's right hip disability is manifested by markedly severe residual weakness, pain, and limitation of motion following implementation of a prosthesis. Also, the evidence of record demonstrates "severe" muscle disability post right hip replacement, due to an injury to Muscle Groups XIII and XIV. 


CONCLUSIONS OF LAW

1. From June 19, 2008 to October 21, 2008, the criteria are not met for an initial disability rating greater than 30 percent for a right hip disability. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.20, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5299-5255 (2011). 

2. As of December 1, 2009, the criteria are met for an initial disability rating of 70 percent, but no greater, for a right hip disability. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 4.1-4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5054 (2011); 38 C.F.R. §§ 4.55, 4.56, 4.73, Diagnostic Codes 5313, 5314 (2011).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In this decision, the Board will discuss the relevant law it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and 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); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (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).

VA's Duty to Notify and Assist

With regard to the initial rating issues on appeal, review of the claims folder shows compliance with the Veterans Claims Assistance Act (VCAA), 38 U.S.C.A. § 5100 et seq. See also 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The duty to notify was accomplished by way of VCAA letters from the RO to the Veteran dated in June 2008 and April 2009. Those letters effectively satisfied the notification requirements of the VCAA consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by: (1) informing him about the information and evidence not of record that was necessary to substantiate both his service connection and subsequent increased initial rating issues; (2) informing him about the information and evidence the VA would seek to provide; (3) informing him about the information and evidence he was expected to provide. See also Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). 

The June 2008 letter from the RO further advised the Veteran of the elements of a disability rating and an effective date, which are assigned when service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). The April 2009 VCAA notice letter also advised the Veteran of the additional notice requirements for increased rating claims. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) (minimum notice requirements pursuant to VCAA for an increased rating claim), rev'd in part by Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting Veteran-specific notice as to the effect on daily life and as to the assigned or cross-referenced diagnostic code under which the disability is rated). The outcome of these holdings is that VCAA notice for an increased rating claim does not have to be individually tailored to each Veteran's particular facts, but rather only a generic notice is required. The April 2009 letter advised the Veteran of both the generic and specific evidentiary and legal criteria necessary to substantiate a higher rating for his right hip disability. 

The initial rating issue arises from disagreement with the initial evaluation following the grant of service connection for the right hip disability in an October 2008 rating decision. Both the United States Court of Appeals for Veterans Claims (Court) and the Federal Circuit Court of Appeals (Federal Circuit Court) have held that once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Goodwin v. Peake, 22 Vet. App. 128, 137 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). See also 38 C.F.R. 3.159(b)(3) (no duty to provide VCAA notice arises upon VA's receipt of a Notice of Disagreement), retroactively effective May 30, 2008. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008).

As to timing, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If not timely or inadequate, such errors can be effectively "cured" by providing any necessary VCAA notice and then and readjudicating the claim. A statement of the case (SOC) or SSOC can readjudicate the claim so that the intended purpose of the notice is not frustrated and the appellant is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). As a matter of law, VA may cure a timing of notice defect by taking proper remedial measures, such as issuing a fully compliant VCAA notice followed by a subsequent SOC or SSOC. Prickett, 20 Vet. App. at 376. 

The timing error was cured. After providing additional VCAA notice in April 2009, the RO readjudicated the initial rating issues in the latter SOC and SSOCs. Any timing defect in the notice has been rectified. Prickett, 20 Vet. App. at 376; see Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency). 

The RO has secured service treatment records (STRs), Social Security Administration (SSA) disability records, VA examinations, private medical evidence, employer records, and VA treatment records. The Veteran has submitted personal statements, hearing testimony, and private medical evidence. 

The Veteran was also afforded March 2010, April 2009, and September 2008 VA medical examinations to rate the current severity of his right hip disability. The record is inadequate and the need for a more contemporaneous examination occurs only when the evidence indicates that the current rating may be incorrect or when the evidence indicates there has been a material change in the disability. See 38 C.F.R. § 3.327(a); Palczewski v. Nicholson, 21 Vet. App. 174, 182-83. 

The March 2010 VA examination is fairly recent and the examinations are also fully adequate. In addition, the Board is granting a higher 70 percent rating to account for worsening of the right hip disability as of December 1, 2009. In the July 2009 VA Form 9, the Veteran expressly indicated he would be fully satisfied with a 70 percent rating for his right hip. See AB v. Brown, 6 Vet. App. 35, 39 (1993) (a Veteran is presumed to be seeking the highest possible rating, unless he expressly indicates otherwise). Finally, more contemporaneous VA treatment records and hearing testimony dated in 2010 and 2011 do not demonstrate a material change in the right hip disability beyond the 70 percent already being granted. Therefore, a new VA examination to rate the severity of his right hip disability is not warranted. 

The RO substantially complied with the Board's November 2011 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). See also D'Aries v. Peake, 22 Vet. App. 97 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). Specifically, pursuant to the remand instructions, the RO secured additional SSA disability records and VA treatment records. 

With regard to the July 2011 Travel Board hearing, in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010), the Court held that the Veterans Law Judge who chairs a Board hearing fulfill two duties to comply with 38 C.F.R. § 3.103(c)(2). These duties consist of (1) fully explaining the issues pertinent to the claim(s) on appeal and (2) suggesting the submission of evidence that may have been overlooked. See also 38 C.F.R. § 3.103(c)(2). At the July 2011 hearing, the Veterans Law Judge and the Veteran outlined the issue on appeal and engaged in a colloquy as to substantiation of the claim. Overall, the hearing was legally sufficient and the duty to assist has been met. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2011). 

Higher Initial Ratings

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10.

If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. 

Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and coordination of rating with impairment of function. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).

The Veteran has perfected an appeal as to the assignment of initial ratings following the initial award of service connection for his right hip disability. The Board is required to evaluate all the evidence of record reflecting the period of time between the effective date of the initial grant of service connection (June 19, 2008) until the present. The Board will also consider probative evidence prior to this date, to the extent this evidence sheds additional light on the Veteran's overall disability picture. This has already resulted in "staged ratings" based upon the facts found during the period in question. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board must consider whether there have been times when his right hip disability has been more severe than at others. Id. 

From June 19, 2008 to October 21, 2008, the Veteran's right hip disability is rated as 30 percent disabling. 

The Veteran underwent right hip replacement surgery on October 21, 2008, and from October 21, 2008 to December 1, 2009, the Veteran received a 100 percent temporary total rating for his right hip disability under 38 C.F.R. § 4.30 due to surgical treatment necessitating convalescence, combined with a mandatory 100 percent rating for one year following the implantation of a right hip prosthesis under Diagnostic Code 5054 (hip replacement). See 38 C.F.R. § 4.71a. The issue of a temporary total rating under 38 C.F.R. § 4.30 is currently not on appeal. The mandatory one-year 100 percent rating under Diagnostic Code 5054 was effective from the first day of the month following convalescence, and continued to December 1, 2009. 

From December 1, 2009 to the present, the Veteran's right hip disability is rated as 50 percent disabling.

The Veteran contends that his service-connected right hip disability is more severe than is contemplated by the staged 30 and 50 percent ratings. The Board denies the appeal for an initial rating greater than 30 percent from June 19, 2008 to October 21, 2008. However, from December 1, 2009 to the present, the Board grants the appeal in part and finds that an initial 70 percent disability rating is warranted. 

When an evaluation of a disability is based on limitation of motion, the Board must also 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, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 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). 

Although pain may cause a functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). 

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. Moreover, the Court has held that the application of 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. When § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, VA should address its applicability. Burton v. Shinseki, 25 Vet. App. 1, 3-5 (2011). 

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 also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). 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 the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness. Layno v. Brown, 6 Vet. App. 465, 469 (1994). 

Right Hip Disability Rating from June 19, 2008 to October 21, 2008 

From June 19, 2008 to October 21, 2008, the Veteran's right hip disability is rated as 30 percent disabling under Diagnostic Code 5299-5255, impairment of the femur. 38 C.F.R. § 4.71a. The Veteran was originally service connected and rated for right hip chondroblastoma (tumor). The rating criteria do not have a specific diagnostic code for chondroblastoma. The disorder is, therefore, rated as analogous to impairment of the femur because the functions affected, the anatomical localization, and the symptomatology are most closely analogous to this disorder. See 38 C.F.R. § 4.20.     

The provisions of 38 C.F.R. § 4.71a, Diagnostic Codes 5250 to 5255 (2011), provide the criteria for rating hip and thigh disabilities. Normal range of motion for the hip is 0 degrees of extension to 125 degrees of flexion and 0 to 45 degrees of abduction. 38 C.F.R. § 4.71, Plate II. 

Under Diagnostic Code 5252, for limitation of flexion of the thigh, a 10 percent rating is appropriate where flexion is limited to 45 degrees; a 20 percent evaluation contemplates flexion limited to 30 degrees; a 30 percent evaluation contemplates flexion limited to 20 degrees; and a 40 percent evaluation contemplates flexion limited to 10 degrees. 38 C.F.R. § 4.71a (2011). 

Under Diagnostic Code 5250, for ankylosis of the hip, favorable ankylosis of the hip in flexion at an angle between 20 degrees and 40 degrees, and slight adduction or abduction is to be rated 60 percent disabling; intermediate ankylosis of the hip is to be rated 70 percent disabling; and extremely unfavorable ankylosis, with the foot not reaching ground, crutches necessitated, is to be rated 90 percent disabling, and is entitled to special monthly compensation. Id.  

Under Diagnostic Code 5254, for flail joint of the hip, evidence of flail joint warrants an 80 percent rating. Id. 

Under Diagnostic Code 5255, for impairment of the femur, malunion of the femur with slight knee or hip disability warrants a 10 percent evaluation. 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 the femur, with false joint or fracture of the shaft or anatomical neck of the femur with nonunion, without loose motion, weight bearing preserved with aid of brace warrants a 60 percent evaluation. Fracture of the shaft or anatomical neck of the femur with nonunion, with loose motion (spiral or oblique fracture) warrants an 80 percent evaluation. Id. 

From June 19, 2008 to October 21, 2008, the overall disability picture does not support an initial rating greater than 30 percent for the Veteran's right hip disability. 38 C.F.R. § 4.7. That is, under Diagnostic Code 5255, VA, private, SSA, and lay evidence of record do not demonstrate a fracture of the surgical neck of the femur, with false joint or fracture of the shaft or anatomical neck of the femur with nonunion. 38 C.F.R. § 4.71a. The Veteran was noted to be at risk for fracture of the right hip due to his tumor, but no actual fracture was ever documented. There is also no evidence of nonunion upon X-ray. See May 2006 STR X-ray report; July 2008 VA X-ray report; August 2008 VA orthopedic surgery consult; September 2008 VA examination; September 2008 SSA function report; October 2008 private surgery report; and October 2008 VCU Medical Center record. Also, the Veteran's own statements provide no basis for an initial rating above 30 percent from June 19, 2008 to October 21, 2008.  

Moreover, other diagnostic codes for hip disabilities that provide for ratings greater than 30 percent are not more appropriate because the facts of the case do not support their application. See 38 C.F.R. § 4.71a, Diagnostic Code 5250 (ankylosis of the hip); Diagnostic Code 5254 (hip flail joint); and Diagnostic Code 5252 (limitation of flexion of the thigh). Therefore, from June 19, 2008 to October 21, 2008, the Board will continue to evaluate the Veteran's right hip under Diagnostic Code 5255. See again Butts v. Brown, 5 Vet. App. 532, 538 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence). 

From June 19, 2008 to October 21, 2008, there is no probative evidence of ankylosis, limitation of flexion to 10 degrees, or a flail joint of the hip. Specifically, the September 2008 VA examiner noted no ankylosis, no flail joint, flexion limited to 40 degrees with consideration of pain, and no additional loss of motion upon repetition. The Board has also considered during this time period the Veteran's lay statements, hearing testimony, VA treatment records, private treatment records, and SSA disability records. None of these records reveal ankylosis of the right hip, limitation of flexion to 10 degrees, or a flail joint. Although credible medical and lay evidence of record reveals functional loss of the right hip through factors such as deformity, pain, weakness, crepitus, guarding, fatigue, tenderness, stiffness, flare-ups, difficulty with prolonged sitting and standing and bending and walking, difficulty lifting and carrying, difficulty with daily activities and work, this functional loss is adequately represented in the 30 percent rating assigned. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Mitchell, 25 Vet. App. at 38; DeLuca, 8 Vet. App. at 206.

The Board has also considered whether a disability rating could be warranted under Diagnostic Codes 5313 and 5314 for a right hip muscle injury to Muscle Groups XIII and XIV from June 19, 2008 to October 21, 2008, prior to the Veteran's right hip surgery. See 38 C.F.R. § 4.73. However, prior to October 21, 2008, there is no medical evidence of a specific right hip muscle injury. The first indication of a right hip muscle injury is after his October 2008 surgery when an April 2009 VA treatment record documented atrophy in the right quadriceps for the first time. An April 2009 VA examination also revealed right thigh "muscle wasting." Also, "disuse atrophy" of Muscle Groups XIII and XIV was assessed by the March 2010 VA examiner. The March 2010 VA examiner included photos of the right leg atrophy. But from June 19, 2008 to October 21, 2008, there is insufficient evidence to rate the Veteran's right hip disability as a muscle injury. Butts, supra. 

Accordingly, from June 19, 2008 to October 21, 2008, the evidence does not support an initial disability rating greater than 30 percent for a right hip disability. 38 C.F.R. § 4.3, and there is no basis to further stage his rating for this time period under Fenderson, 12 Vet. App. at 125-26.

Right Hip Disability Rating Since December 1, 2009 

From December 1, 2009 to the present, the Veteran's right hip disability is rated as 50 percent disabling under Diagnostic Code 5054, hip replacement. See 38 C.F.R. § 4.71a (2011). 

Under Diagnostic Code 5054, replacement of the hip with prosthesis warrants a 100 percent rating for a one-year period following implantation of the prosthesis. Thereafter a 30 percent rating is warranted where symptomatology commensurate with less than the criteria for a 50 percent rating is shown. A 50 percent rating is warranted for moderately severe residuals of weakness, pain, or limitation of motion. A 70 percent rating is warranted for markedly severe residual weakness, pain, or limitation of motion following implantation of the prosthesis. A 90 percent rating is warranted following implantation with painful motion or weakness such as to require the use of crutches. Id. 

The terms "markedly severe" and "moderately severe" as used under Diagnostic Code 5054 are not defined in the VA Schedule for Rating Disabilities. 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. 

From December 1, 2009 to the present, the evidence of record is consistent with an initial 70 percent rating for the right hip under Diagnostic Code 5054. 38 C.F.R. § 4.7. Credible medical and lay evidence of record reveals markedly severe residual weakness, pain, or limitation of motion following implantation of the prosthesis, indicative of a 70 percent rating under Diagnostic Code 5054. The March 2010 VA examiner assessed "constant" right hip pain. 

The Veteran has flare-ups three times a week. He experiences pain, weakness, stiffness, swelling, guarding, incoordination, lack of stamina, problems lifting and carrying, and muscle atrophy. The Veteran cannot work due to his disability. He uses a cane or walker to ambulate. VA treatment records dated in 2009 and 2010 document right hip pain, weakness, fatigue, atrophy, limitation of right hip flexion, extension, abduction, adduction, and rotation. The circumference of his right thigh is smaller than his left thigh. The Veteran participated in a physical therapy program and a home exercise program with positive results. At the July 2011 hearing, the undersigned noted that the Veteran was "marginally sedentary." See testimony at page 17. The Veteran reported right hip pain on a "daily' basis. The SSA in a June 2011 determination found that the Veteran is disabled, in part, due to his right hip disability. 

In granting a 70 percent rating, the Board has considered the effect of functional loss that pertains to the joints. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Mitchell, 25 Vet. App. at 38; DeLuca, 8 Vet. App. at 206.

However, from December 1, 2009 to the present, the evidence of record does not warrant an initial rating beyond 70 percent under any diagnostic code pertaining to the right hip. 38 C.F.R. § 4.7. The evidence does not support a 90 percent rating under Diagnostic Code 5054 for painful motion or weakness such as to require the use of crutches, following implantation of a prosthesis. 38 C.F.R. § 4.71a. The Veteran does not use two "crutches" in the traditional sense, but rather uses a cane or "modified crutch" for his right side. VA and private and SSA records dated in 2008 and 2009 disclose that the Veteran uses a cane to ambulate. VA physical therapy treatment records dated from May 2010 to July 2010 remark that the Veteran was instructed by VA medical personnel to stop using a cane. By July 2010, the Veteran's strength had increased to the point that he could walk around his home without a cane. At the July 2011 Travel Board hearing, the Veteran testified that he uses a cutoff crutch that is supposed to be a cane. See testimony at page 14. In any event, after December 1, 2009, the necessity of two crutches following implementation of the right hip prosthesis is not demonstrated. In fact, in a June 2011 SSA decision, it was noted that medical improvement is expected for the Veteran's right hip with appropriate treatment. Another disability review was recommended in two years time. A 90 percent rating is therefore not warranted. 

In addition, other diagnostic codes under joints for right hip disabilities that provide ratings greater than 70 percent are not more appropriate because the facts of this case do not support their application. See 38 C.F.R. § 4.71a, Diagnostic Code 5250 (ankylosis of the hip); Diagnostic Code 5254 (hip flail joint); and Diagnostic Code 5255 (fracture of the shaft or anatomical neck of the femur). See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence). From December 1, 2009 to the present, there is no probative medical evidence or lay allegation of ankylosis, nonunion deformity due to fracture of the femur, or right hip flail joint. VA X-rays of the right hip dated in 2009 and 2010 showed normal alignment of the prosthesis, with no evidence of fracture. The March 2010 VA examiner found no ankylosis. 

With regard to a right hip muscle injury, the first indication of a right hip muscle injury is after the Veteran's October 2008 surgery when an April 2009 VA treatment record documented atrophy in the right quadriceps for the first time. An April 2009 VA examination also revealed right thigh "muscle wasting." Also, "disuse atrophy" of Muscle Groups XIII and XIV was assessed by the March 2010 VA examiner. The March 2010 VA examiner included photos of the right leg atrophy. A May 2010 VA treatment note indicates that the right thigh circumference is smaller than the left thigh. 

The Board has considered assigning separate and additional ratings for his right disability under Diagnostic Codes 5313 and 5314 for muscle injuries to the pelvic girdle and thigh. See 38 C.F.R. § 4.73. However, this would constitute pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. In effect, the Veteran is not entitled to separate and additional ratings for his right hip muscle disability, as manifestations of a disability under multiple diagnoses (i.e., pyramiding) is to be avoided under 38 C.F.R. § 4.14. 

As limitation of motion (flexion, extension, abduction, adduction, and rotation) and factors of functional loss such as atrophy are manifestations of both right hip muscle and joint injuries, these symptoms are already compensated by his existing 70 percent rating under Diagnostic Code 5054. Likewise, limitation of motion associated with a disability is specifically accounted for under the muscle injury criteria, as set forth at 38 C.F.R. § 4.56(c) (uncertainty of movement factor). Moreover, the applicable diagnostic codes of the muscle, Diagnostic Codes 5313 and 5314, account for motion of the right hip joint (flexion, extension, and rotation), as muscles move joints. See 38 C.F.R. § 4.73. Finally, for VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. 38 C.F.R. § 4.56(c). These criteria are overlapping with the symptoms of functional loss that pertain to the joints, listed in 38 C.F.R. §§ 4.40 and 4.45 and 4.59. See also DeLuca v. Brown, 8 Vet. App. 202 (1995); VAOPGCPREC 9-98 (August 1998). In summary, the same signs and symptoms cannot be used to support more than one evaluation under 38 C.F.R. § 4.14. 

However, in rating his service-connected right hip disability, application of 38 C.F.R. § 4.14 does not prohibit the Board from comparing the rating criteria for the right hip joint versus the rating criteria for the affected right hip muscles and considering which provides a higher evaluation based on the manifestations of the disability. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence). Therefore, the Board will evaluate the Veteran's right hip disability under the diagnostic code that will provide the most favorable rating considering the prohibition on  pyramiding for the same symptom. See, e.g., Esteban v. Brown, 6 Vet. App. 259, 261 (1994).

Under Diagnostic Codes 5313 and 5314 for Muscle Groups XIII and XIV, a maximum 40 percent rating requires "severe" impairment in the muscles. 38 C.F.R. § 4.73. Evaluation of muscle injuries as slight, moderate, moderately severe, or severe, is based on the type of injury, the history and complaints of the injury, and objective findings. 38 C.F.R. § 4.56(d). 

A "severe" muscle disability occurs when there was a through and through or deep penetrating wound due to high-velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding and scarring. Records should show hospitalization for a prolonged period for treatment of wound, consistent complaints of cardinal signs and symptoms of muscle disability worse than those shown for moderately severe muscle injuries, and, if present, evidence of inability to keep up with work requirements. Objective evidence of severe muscle disability includes ragged, depressed, and adherent scars indicating wide damage to muscle groups in missile track. Palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in wound area. Muscles swell and harden abnormally in contraction. Tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side indicate severe impairment of function. Additional signs of severe muscle disability, when present, include: X-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile; adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle; diminished muscle excitability to pulsed electrical current in electrodiagnostic tests; visible or measurable atrophy; adaptive contraction of an opposing group of muscles; atrophy of muscle groups not in the track of the missile; and induration or atrophy of an entire muscle following simple piercing by a projectile. 38 C.F.R. § 4.56(d)(4).

As held by the Court, the criteria for evaluating muscle injuries under 38 C.F.R. § 4.56 involves a "totality-of-the-circumstances test" with no single fact controlling the outcome of determination. Tropf v. Nicholson, 20 Vet. App. 317, 324-25 (2006) (Tropf II). In Robertson v. Brown, 5 Vet. App. 70 (1993), the Court held that a history of debridement did not mandate a specific rating under 38 C.F.R. § 4.56 absent evidence of symptomatic disability. Similarly, in Tropf II, the Court held that the presence of retained metal fragments in muscle that was essentially asymptomatic did not entitle a claimant to a "moderate" compensable rating under 38 C.F.R. § 4.56 as a matter of law. Tropf II, 20 Vet. App. at 324-25.

The evidence of record could support the criteria for "severe" 40 percent ratings under Diagnostic Codes 5313 and 5314 for the Veteran's right hip muscle injuries. 38 C.F.R. § 4.7. Specifically, per the March 2010 VA examination, VA treatment records dated in 2009 and 2010, private treatment records, SSA records, and credible lay statements, there is evidence of the required "severe" muscle disability. 
An April 2009 VA treatment record documented atrophy in the right quadriceps for the first time. An April 2009 VA examination also revealed right thigh "muscle wasting." Also, "disuse atrophy" of Muscle Groups XIII and XIV was assessed by the March 2010 VA examiner. The March 2010 VA examiner included photos of the right leg atrophy. A May 2010 VA treatment note indicates that the right thigh circumference is smaller than the left thigh. In addition, medical and lay evidence reveals consistent complaints of many of the cardinal signs and symptoms of muscle disability to include loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. See 38 C.F.R. § 4.56(c). There is also evidence of inability to keep up with work requirements due to the right hip disability. All of these are signs of "severe" muscle disability. 

The combined evaluation of muscle groups acting upon a single unankylosed joint must be lower than the evaluation for unfavorable ankylosis of that joint, except in the case of muscle groups I and II acting upon the shoulder. 38 C.F.R. § 4.55(d).    In the present case, the combined evaluation of Muscle Groups XIII and XIV is 70 percent when the 40 percent "severe" ratings are combined under 38 C.F.R. § 4.25 (combined ratings table).
 
As discussed above, the Veteran already is assigned a 70 percent rating for his right hip under Diagnostic Code 5054. 38 C.F.R. § 4.71a. Although the Veteran's right hip disorder could also be evaluated under 38 C.F.R. § 4.73, Diagnostic Codes 5313 and 5314, for muscle disability, 70 percent is also the maximum rating available under these diagnostic codes when combined. So their application here would not benefit him. And, as already stated, he is not entitled to a separate and additional rating for his right hip muscle disability, as manifestations of a disability under multiple diagnoses (i.e., pyramiding) is to be avoided under 38 C.F.R. § 4.14. 

Accordingly, resolving any doubt in the Veteran's favor, from December 1, 2009 to the present, the evidence supports an increased initial disability rating of 70 percent, but no greater, for the Veteran's right hip disability under Diagnostic Code 5054. 38 C.F.R. § 4.3. 

The RO previously staged the Veteran's right hip disability rating. It is not necessary to "stage" the Veteran's rating any further, as his symptoms have been fairly consistent at the 70 percent level after December 1, 2009. Fenderson, 12 Vet. App. at 126.   

Extra-Schedular Consideration

There is no evidence of exceptional or unusual circumstances to warrant referring the case for extra-schedular consideration. 38 C.F.R. § 3.321(b)(1). Since the rating criteria reasonably describe the claimant's disability level and symptomatology, the Veteran's disability picture is contemplated by the Rating Schedule, such that the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115-116 (2008); VAOPGCPREC 6-96. The evidence fails to show anything unique or unusual about the Veteran's right hip disability that would render the schedular criteria inadequate. There are no additional symptoms of his right hip disability that are not addressed by the Rating Schedule. Moreover, although the Veteran's right hip disability clearly interferes with his employability, such interference is contemplated by the schedular rating criteria. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 


ORDER

From June 19, 2008 to October 21, 2008, an initial disability rating greater than 30 percent for a right hip disability is denied. 

As of December 1, 2009, an initial 70 percent disability rating for a right hip disability, status post right hip replacement, with atrophy to Muscle Groups XIII and XIV, is granted. 



____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs