Citation Nr: 1300419 Decision Date: 01/07/13 Archive Date: 01/11/13 DOCKET NO. 09-14 984 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for the service-connected residuals of status post left femoral stress fracture with percutaneous screws ("left hip disability"). 2. Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from February 2001 to October 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of a Department of Veteran's Affairs (VA) Regional Office (RO), which awarded service-connection for the left hip disability and assigned a 10 percent evaluation effective October 2007. The Veteran filed a notice of disagreement (NOD) in April 2008. This matter also comes before the Board on appeal from an October 2008 rating decision denying service connection for a low back disability. The Veteran filed an NOD in October 2008. A statement of the case was issued in April 2009, which addressed both claims. The Veteran perfected his appeals in April 2009. The Veteran presented testimony before the RO in December 2009. A transcript has been associated with the claims folder. The claim of entitlement to service connection for a low back disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT Throughout the appellate period, the left hip disability has not been shown to be productive of flexion of the thigh limited to 30 degrees. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 10 percent for the service-connected left hip disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5250-5255 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. § 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Duty to Notify The United States Court of Appeals for Veterans Claims' (Court) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, the Veteran's claim arises from his disagreement with the initial disability evaluation assigned following the grant of service connection. Appropriate VCAA notice was furnished in November 2007. Courts 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. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Accordingly, the requirements the Court set out in Pelegrini have been satisfied. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principia, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009)(Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist Furthermore, the Board finds that there has been compliance with the assistance provisions set forth in the law and regulations. The record in this case includes service treatment records, post-service VA and private treatment records, reports of VA examination, and the transcript from the December 2009 RO hearing. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). No additional pertinent evidence has been identified by the claimant. For the foregoing reasons, the Board therefore finds that VA has satisfied its duty to notify and the duty to assist pursuant to the VCAA. See 38 U.S.C.A. §§ 5102 and 5103 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159(b), 20.1102 (2012); Pelegrini, supra; Quartuccio, supra; Dingess, supra. Any error in the sequence of events or content of the notice is not shown to have any effect on the case or to cause injury to the claimant. Thus, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. When considering functional impairment caused by a service-connected disorder, evaluations should be based on an assessment of the lack of usefulness, and adjudicators should consider the effects of the disabilities upon the person's ordinary activity. 38 C.F.R. § 4.10. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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, 1 Vet. App. at 594. Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings." Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The Court has held that functional loss, supported by adequate pathology and evidenced by visible behavior of the veteran undertaking the motion, is recognized as resulting in disability. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.10, 4.40, 4.45. 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. Functional loss may be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: 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 as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). III. Analysis The Board has reviewed all the evidence in the Veteran's claims file and Virtual VA record (nothing pertinent was found in VA's electronic database storage). Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran appealed the decision that assigned the initial 10 percent rating for the left hip disability and the Board will now consider whether a higher evaluation is warranted for the disability at any stage since the effective date of service connection. See Fenderson, supra. The Veteran's service connected left hip disability has been rated under Diagnostic Code 5252 for limitation of flexion of the thigh. 38 C.F.R. § 4.71a. Under this code section, a 10 percent rating is assigned for flexion limited to 45 degrees; 20 percent for flexion limited to 30 degrees; 30 percent for flexion limited to 20 degrees; and 40 percent for flexion limited to 10 degrees. Id. The pertinent facts found in the medical evidence of record are discussed below. Having carefully considered the Veteran's claim in light of the evidence of record and the applicable laws and regulations, and as outlined in the reasons and bases below, the Board finds that the left hip disability warrants no more than the initial 10 percent rating currently assigned. 38 C.F.R. §§ 4.7, 4.71a. In this regard, service treatment records show the Veteran sustained a left femur neck stress fracture in May 2001. A percutaneous fixation with two screws was performed. Post-service, upon VA examination in January 2008, the Veteran complained of continued pain since his discharge from service. He informed the examiner that he took an occasional Lortab, one tablet four times a day, for relief of pain. The Veteran indicated that he was laid off from his current landscaping job. The Veteran's gait was mild limping on the left leg without assisting devices. In the past 12 months, the Veteran did not have any incapacitating episodes or hospital admissions related to his left hip disability. His activities of daily living were only mildly affected from his left hip. He was able to walk and drive a car. He was not able to run or walk longer distances because of increased pain in the left hip joint. Physical examination revealed painful and mild limitation of range of motion in the left hip joint. Flexion was possible up to 90 degrees. Abduction was 35 degrees and external rotation was 45 degrees. During repetitive motion in the left hip joint, the Veteran had increased pain, easy fatigability, and lack of endurance, but there was no change in range of motion. X-rays showed a well healed fracture of the left femoral neck, fixed with two percutaneous screws. VA outpatient treatment records dated in July 2008 contain complaints of left hip pain. The Veteran was afforded an additional VA examination in September 2008, scheduled in connection with his low back disability claim. The examiner noted the Veteran complained of occasional pain in his left hip. There were no gait disturbances. The examiner stated the Veteran's gait was normal without assistive devices. The Veteran was working in a factory for recycling batteries. VA outpatient treatment records dated in 2009 document continued complaints of left hip pain. During the December 2009 RO hearing, the Veteran testified that he had continued pain. He indicated that he was no longer able to perform work as a machinist or landscaper, due to an inability to stand for extended periods; however, he was working at the Waffle House part-time. He further testified to decreased range of motion and having to occasionally lay down, a couple of times of month, to relieve symptoms. He stated that he used a cane only a few times per month, but that he limped on a daily basis. Upon VA examination in December 2009, the Veteran complained of hip pain. He reported using a cane for walking occasionally. The examiner noted the Veteran did not have a cane with him and ambulated fine without one. The Veteran denied left hip pain affecting motion of the joint or flare-ups. There was no evidence of leg shortening. The bone and joint were normal. There were no signs of active infection. The weigh bearing joint was not affected. There was no evidence in the feet of abnormal weight bearing, including abnormal shoe wear. There was no functional limitation on standing or walking. There was no evidence of genu recurvatum. There were no constitutional signs of bone disease. The examiner found no evidence of malunion of the os calcis or astragalus. The left hip was non-tender to touch. There was no swelling, crepitance or warmth noted. Range of motion remained unchanged after three repetitions as follows: flexion to 112 degrees; extension to 19 degrees; adduction to 21 degrees; abduction to 37 degrees; external rotation to 48 degrees; and internal rotation to 36 degrees. There was no evidence of functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. X-rays were negative for arthritis. The Veteran was unemployed for reasons unknown. Based on the foregoing, throughout the appellate period, there has been no evidence of limitation of flexion of the thigh limited to 30 degrees to warrant an increased 20 percent rating. The Board has noted the Veteran's complaints of pain experienced in his left hip and thus, considered functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). However, even with painful motion, flexion was still possible to 90 degrees. Despite increased, pain, fatigability, and lack of endurance after repetitive testing in January 2008, there was no change in range of motion. During VA examination in 2009, flexion remained unchanged (112 degrees) after three repetitions. There was no evidence of functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. The complaints of pain are clearly accounted for in the current 10 percent rating as the Veteran doesn't even meet the criteria for the 10 percent rating (flexion limited to 45 degrees). 38 C.F.R. § 4.71a. The Board has also considered other potentially applicable diagnostic codes that provide for the assignment of higher evaluations for the Veteran's left hip disability. After review, however, the Board observes that no other code provisions can be applied for a higher rating based on the evidence of record. There was no evidence of ankylosis of the hip (Diagnostic Code 5250), abduction lost beyond 10 degrees (Diagnostic Code 5253), flail joint (Diagnostic Code 5254), or malunion of the femur with moderate hip disability (Diagnostic code 5255) to warrant a higher rating. 38 C.F.R. § 4.71a. "Staged" ratings are not warranted for any period of the appeal. 38 C.F.R. § 4.71a; see Fenderson, supra. Should the Veteran's disability picture change in the future, he may be assigned a higher rating. See 38 C.F.R. § 4.1. The Court has held that, when evidence of unemployability is presented, the issue of whether a total compensation rating based on individual unemployability (TDIU) will be assigned, should be handled during the determination of the initial disability rating assigned at the time disabilities are determined to be service connected. See Rice v. Shinseki, 22 Vet. App. 447, 452-53 (2009). In Rice, the Court determined that there is no freestanding claim for a TDIU rating. Id. at 451. In the instant case, the Veteran has not raised the issue of a TDIU rating with respect to his claim. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). The evidence of record shows the Veteran has been variously employed as a landscaper, machinist, and at the Waffle House. The 2009 VA examination indicates the Veteran was unemployed, but the reason was unknown. The Veteran made no claim of unemployability during the appeal period. As the Veteran has not raised such a claim and there is no objective evidence of unemployability due to the service-connected left hip disability, a claim for a TDIU rating is not presented in the instant case. The above determinations are based upon application of the pertinent provisions of VA's rating schedule. The Board finds that the record does not reflect that the Veteran's service-connected left hip disability is so exceptional or unusual as to warrant the assignment of a higher rating on an extra- schedular basis. See 38 C.F.R. § 3.321(b)(1) (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disabilities with the established criteria found in the rating schedule for that disability. The criteria reasonably describe the Veteran's disability levels and symptomatology and thus, his disability picture is contemplated by the rating schedule and the assigned schedular evaluations are therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). If the schedular evaluations did not contemplate the Veteran's level of disability and symptomatology, which is not the case in the instant matter, and were found inadequate, VA must determine whether the Veteran's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1)) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). Since the Veteran's disability picture is contemplated by the rating schedule, no extraschedular referral is required. 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). ORDER Entitlement to an initial evaluation in excess of 10 percent for the service-connected left hip disability is not warranted. To this extent, the appeal is denied. REMAND The Veteran additionally claims entitlement to service connection for low back disability. A preliminary review of the record discloses the matter is not ready for appellate disposition. The Veteran specifically contends that the claimed condition is secondary to an altered gait caused by the service-connected left hip disability. A disability which is proximately due to, the result of, or aggravated by a service-connected disease or injury shall be service-connected. 38 C.F.R. § 3.310. The Veteran was afforded VA examination in September 2008. The examiner opined it was not likely the Veteran's left hip disability caused his low back condition. The examiner reasoned low back pain started in 2006 and there was no injury to the spine during or after military service. The examiner further indicated the Veteran's gait was normal. The December 2009 VA examiner opined retrolisthesis of L5 on S1 and bulging disc at L5-S1 was not caused by or a result of his left hip disability. The examiner reasoned the Veteran did not have an onset of low back pain until 2007, which resolved and redeveloped after starting a pull cord lawn mower. The examiner further indicated that since the Veteran had no problems for many years and given the lawn mower injury there was no correlation or nexus between his left hip disability or surgical repair and the retrolisthesis on L5 on S1 and bulging disc at L5-S1. However, the above-cited opinions do not clearly address the question of aggravation by service-connected left hip disability. As such, the Board is unable to view them as adequate to allow for informed appellate review. Finally, the most recent VA outpatient treatment records associated with the claims folder are dated in December 2009. Updated records of any subsequent treatment the Veteran has received for the claimed low back disability are pertinent evidence that must be secured. 38 C.F.R. § 3.159(c)(2). Accordingly, the case is REMANDED for the following actions: 1. The RO should secure for the record copies of the complete VA outpatient records of the Veteran since December 2009. 2. After the development sought above is completed, the RO should arrange for the Veteran to be afforded an appropriate VA to determine whether the claimed low back disability has been aggravated by the service-connected left hip disability. The entire record must be reviewed by the examiner in conjunction with the examination. The examiner should offer an opinion as to whether it is at least as likely as not (a 50% or higher degree of probability) that the Veteran's low back disorder has been aggravated by the service-connected left hip disability. A rationale should be furnished. In the event the Veteran fails to report for the examination, the claims file should nevertheless be forwarded to a appropriate VA examiner for review and a response to the above-posed question. 3. In the interest of avoiding future remand, the RO should then review the examination report to ensure that the above question has been clearly answered and a rationale furnished for any opinion expressed. If not, appropriate action should be taken to remedy any such deficiencies in the examination report. 4. The RO should review the claims file and determine if service connection for low back disability is warranted. If the benefit sought on appeal is not granted, the Veteran should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs