Citation Nr: 1301685 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 09-43 076 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for a cervical spine disability, to include as secondary to service-connected disability. 2. Entitlement to an initial staged rating in excess of 10 percent prior to August 30, 2011 for left hip strain disability. 3. Entitlement to an initial staged rating in excess of 20 percent from August 30, 2011 for left hip strain disability. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from March 1964 to March 1968. These matters come before the Board of Veterans' Appeals (Board) from a November 2008 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Oakland, California. These matters were previously before the Board in May 2011 and were remanded for further development. They have now returned to the Board for further appellate consideration. The May 2011 remand included the issue of entitlement to service connection for a thoracolumbar spine disability. In an August 2012 decision, the RO granted the Veteran entitlement to service connection for lumbar disc disease. Thus, that issue is no longer for appellate consideration. The issue of entitlement to service connection for a cervical spine disability, to include as secondary to service-connected 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 1. Prior to August 30, 2011, the Veteran's left hip disability has been manifested by complaints of pain, with objective evidence of the ability to cross legs, toe-out more than 15 degrees, abduction of the thigh of more than 10 degrees, flexion of the left hip greater than 45 degrees, and extension of the thigh greater than 5 degrees. 2. From August 30, 2011, the Veteran's left hip disability has been manifested by complaints of pain, with objective evidence of the ability to cross legs, abduction of the thigh lost beyond 10 degrees, rotation limited such that the Veteran cannot toe-out more than 15 degrees, flexion to 125 degrees or greater, and extension greater than 5 degrees. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial evaluation in excess of 10 percent prior to August 30, 2011 for left hip strain disability have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.71a, Diagnostic Codes 5003, 5010, 5250, 5251, 5252, 5253 (2012). 2. The criteria for entitlement to an initial evaluation in excess of 20 percent from August 20, 2011 for left hip strain disability have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.71a, Diagnostic Codes 5003, 5010, 5250, 5251, 5252, 5253 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). This appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection. 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). Notice was provided to the Veteran in May 2008; no additional discussion of the duty to notify is therefore required. VA also has a duty to assist the Veteran in the development of the claim, which is not abrogated by the granting of service connection. The claims file contains VA and private medical records and the statements of the Veteran in support of his claim. The Board has considered the statements and perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim for which VA has a duty to obtain. The Veteran was afforded a VA examination in August 2011. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the examination is adequate, as it includes a clinical examination and an interview with the Veteran with regard to his symptoms and treatment. The report of the examination contains findings necessary to evaluate the Veteran's service-connected disability under the applicable diagnostic code rating criteria. Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim. Essentially, all available evidence that could substantiate the claim has been obtained. Legal criteria Rating Disabilities in general Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. Id. § 4.3. Further, a disability rating may require re-evaluation in accordance with changes in a Veteran's condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. Id. § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence for the rating period on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the U.S. Court of Appeals for the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Service connection has been established for a left hip strain disability evaluated as 10 percent disabling effective from July 2, 2007, and as 20 percent disabling effective from August 30, 2011. In the rating action on appeal, the RO evaluated the left hip disability under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5252. In the November 2012 rating decision that increased the rating to 20 percent, the Appeals Management Center used DC 5253. The assignment of a particular diagnostic code depends 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 current diagnosis, and demonstrated symptomatology. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532 (1993). Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625 (1992). The hip can be rated under Diagnostic Codes 5250-5255. 38 C.F.R. § 4.71a. Assigning multiple ratings based on the same symptoms or manifestations would constitute prohibited pyramiding. 38 C.F.R. § 4.14. However, the Board finds that assigning separate ratings based on limitation of extension, flexion, adduction and rotation of the hip under DC 5251, 5252 and 5253 would not amount to pyramiding under 38 C.F.R. § 4.14. Separate ratings under different diagnostic codes may be assigned where "none of the symptomatology for any of [the] conditions is duplicative of or overlapping with the symptomatology of the other ... conditions." Esteban v. Brown, 6 Vet. App. 259 (1994). Here the key consideration has been met, in that limitation of extension, flexion, adduction, and rotation concern excursions of movements in different planes, and these limitations therefore constitute different bases for rating the hip. See 38 C.F.R. § 4.45. If these limitations are demonstrated, they must be rated separately to adequately compensate for functional loss associated with the service-connected left hip disability. See 38 C.F.R. § 4.40; see also VAOPGCPREC 9-2004 (separate ratings may be assigned for disability of the same joint where veteran has both limitation of flexion and limitation of extension of same leg). A January 2007 VA examination report reflects that the Veteran could walk on toes and heels. The report is negative for any range of motion limitations with regard to the Veteran's hip. An October 2007 VA examination report reflects that the Veteran's had flexion to 90 degrees, extension to 20 degrees, adduction to 15 degrees, abduction to 30 degrees, external rotation to 30 degrees, and internal rotation to 10 degrees. It was noted that the Veteran had pain on movement, but the specific degree of motion at which pain started was not noted. The examiner stated that the Veteran did appear to have "significantly decreased range of motion, predominantly in the left hip. The examiner opined that the "DeLuca factor is 20 degrees on the basis of decreased range of motion, predominantly in internal rotation, which is one of the most significant with respect to hip arthritis." A July 2008 fee based Internal Medicine Evaluation examination report reflects that the Veteran had a full range of motion of the left hip with flexion to 125 degrees, extension of 30 degrees, external rotation of 60 degrees, internal rotation of 40 degrees, adduction of 25 degrees, and abduction of 45 degrees. An August 2008 fee based orthopedic examination report reflects that the Veteran had complaints of pain in the left hip. The examiner did not provide clinical findings for the left hip. The Veteran underwent a VA examination in August 2011. Upon examination, the Veteran's left hip flexion was 125 degrees or greater. Painful motion began at 125 degrees or greater. Left hip extension was greater than 5 degrees with painful motion beginning at greater than 5 degrees. Adduction was not so limited that the Veteran could not cross his legs. Rotation was limited such that the Veteran cannot toe-out more than 15 degrees. The examiner noted that the Veteran had additional limitation on range of motion of the hip following repetitive use testing; however, his flexion was still 125 degrees or greater, and his post-test extension was still 5 degrees or greater. His post-test abduction was lost beyond 10 degrees. Muscle Strength was 5/5 or normal of the left hip for flexion, adduction, and extension. Limitation of motion of the hip is rated under Diagnostic Codes (DCs) 5251, 5252, and 5253. For limitation of extension of the thigh, where extension is limited to 5 degrees, a 10 percent evaluation is assigned under DC 5251. The clinical evidence reflects that the Veteran's left hip extension was 20 degrees in October 2007, 30 degrees in July 2008, and was greater than 5 degrees with painful motion beginning at greater than 5 degrees in August 2011. Thus, a rating a compensable rating is not warranted for limitation of extension. The Board has considered the October 2007 examiner's opinion that the Veteran has a "DeLuca factor" of 20 degrees; thus, extension would be 0 degrees; however the Board finds that this finding is not supported by evidence as a whole. First, the examiner stated that the Veteran's "DeLuca factor is 20 degrees on the basis of decreased range of motion, predominantly in internal rotation. . . ". If the Veteran had 20 degrees less than the initially noted 20 degrees of extension, he would have no extension whatsoever. Such a finding is inconsistent with the examiner's opinion that the decreased range of motion was predominantly in internal rotation. Second, the examiner found that the Veteran's pain was greatest with flexion and not extension, and yet he had range of motion with flexion, even considering DeLuca factors. Third, and importantly, the examination in July 2008 found a full range of motion of the hips, and the examination in August 2011 found that the Veteran, post-test, had extension to 5 degrees or greater. Limitation of extension of the thigh is not shown. For limitation of flexion of the thigh, where flexion is limited to 45 degrees, a 10 percent evaluation is assigned; where flexion is limited to 30 degrees, a 20 percent evaluation is assigned; where flexion is limited to 20 degrees, a 30 percent evaluation is assigned; and where flexion is limited to 10 degrees, a 40 percent evaluation is assigned. (DC 5252). Upon examination, the Veteran's left hip flexion was 90 degrees in October 2007 (70 degrees, if subtracting 20 degrees for DeLuca according to the report), 125 degrees in July 2008, and 125 degrees or greater in August 2011; thus, a compensable rating is not warranted for limitation of flexion. Under DC 5253, a 10 percent evaluation is assigned for limitation of rotation where the affected leg cannot toe-out more than 15 degrees. A 20 percent evaluation is assigned for limitation of abduction where there is motion lost beyond 10 degrees. The October 2007 examination report reflects abduction to 30 degrees, and external rotation of 30 degrees. The July 2008 examination report reflects full range of abduction, adduction, and rotation. The August 2011 VA examination report reflects that the Veteran's post-test abduction was lost beyond 10 degrees. Thus, a 20 percent evaluation is warranted from August 2011. As discussed above, the October 2007 examination report reflects a "DeLuca factor" of 20 degrees, predominantly on internal rotation. Thus, the Veteran would have less than 20 degrees additional loss of range of motion on external rotation. Even if the Board were to subtract 20 degrees of external rotation from the 60 degrees of full range of motion noted in July 2008, the Veteran would still have 40 degrees of external rotation. The Board finds that the August 2011 VA examination is most probative as it clearly states both findings before and after repetition. DCs 5254 and 52555 are not applicable as the evidence does not reflect that the Veteran has a flail joint, fracture of the surgical neck, or malunion of the hip. In addition, DC 5250 is not applicable as the evidence is against a finding of ankylosis. In sum, the Board finds that the August 2011 VA examination report is the most probative as it delineates ranges of motion prior to, and after, repetitive testing. The evidence of record, as noted above, does not reflect that a rating in excess of 10 percent is warranted prior to August 2011, or that a rating in excess of 20 percent is warranted from August 2011. The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C.A. § 5107 (West 2002), and 38 C.F.R. § 3.102 (2011), but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Extraschedular Under Thun v. Peake, 22 Vet App 111 (2008), there is a three- 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 claimant's level of disability and symptomatology and is found inadequate, the Board must 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 a 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 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. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability. The established rating criteria reasonably describe the Veteran's disability level and symptomatology. Symptoms such as pain, loss of range of motion, and weakness are considered under DeLuca with regard to range of motion of the hip and thigh. The Board finds that the Veteran does not experience any chronic symptomatology not contemplated by the rating schedule. Referral for extraschedular consideration is not warranted. Total rating for compensation purposes based on individual unemployability (TDIU) In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for TDIU, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In the present claim, the Veteran was granted TDIU effective from December 2006. Thus, there is no issue for adjudication. ORDER Entitlement to an initial staged rating in excess of 10 percent prior to August 30, 2011 for left hip strain disability is denied. Entitlement to an initial staged rating in excess of 20 percent from August 30, 2011 for left hip strain disability is denied. REMAND The Veteran avers that he has a cervical spine disability as secondary to his service-connected left disability (residuals media malleous fracture, left tibia with distal shaft fibula fracture with left fibula osteomyelitis). The Veteran underwent a VA examination in October 2012. The report reflects that the Veteran reported having been in three motor vehicle collisions after service where he injured his neck and received chiropractic treatment. The examiner opined that the Veteran's cervical spine disability was less likely than not incurred in or caused by service. The examiner's rationale was based on the lack of treatment for a spinal disability in service, and the Veteran's whiplash injuries after separation from service. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that a supplemental opinion which considers whether the Veteran has a cervical spine disability which is caused by, or aggravated by, a service-connected disability may be useful to the Board in adjudicating the Veteran's claim. In this regard, the Board notes that the Veteran is service-connected for a left tibia/fibula disability, a left hip disability, and lumbar disc disease. VA has previously requested the Veteran to provide a VA Form 21-4142, Authorization and Consent to Release Information, for all treatment for his cervical spine; however, the treatment records for the Veteran's whiplash/injuries after his three motor vehicle accidents are not associated with the claims file. The October 2012 VA examination report also reflects that the Veteran reported the onset of cervical spine approximately 10 to 15 years earlier. Thus, any records from 1997 to present may be useful to the Board in adjudicating the Veteran's claim. Accordingly, the case is REMANDED for the following action: 1. Request the appellant to complete and return a provided VA Form 21-4142, Authorization and Consent to Release Information, for all medical treatment facilities in which he was treated for his cervical spine, to include treatment for whiplash and/or chiropractic treatment after three motor vehicle accidents, and all pertinent treatment records from 1997 to present. After obtaining a completed VA Form 21-4142, the AOJ should attempt to obtain any pertinent medical records, to include VA records, not already associated with the claims file. 2. After completion of the foregoing, make arrangements with the October 2012 VA examiner, or another appropriate examiner if he is unavailable, to provide a supplemental medical opinion in this case on the issue of service connection on a secondary basis. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater) that the Veteran has a cervical spine disability which is caused by, or which has been chronically aggravated (worsened) by a service-connected disability. The term "aggravation" means that there is an increase in severity of a nonservice-connected disability or an injury that is proximately due to, or the result of, a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of cervical spine disability present (i.e., a baseline) before the onset of the aggravation. The claims folder and a copy of this remand must be made available to the examiner and clinical findings should be reported in detail. If a clinician does not feel that he can render an adequate opinion without an examination of the Veteran, the Veteran should be scheduled for an examination. The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. Following completion of the above, adjudicate the issue of entitlement to service connection for a cervical spine disability, with consideration of all evidence of record received since issuance of the most recent supplemental statement of the case. If the benefit sought is not granted, issue a Supplemental Statement of the Case and afford the appellant and his representative an appropriate opportunity to respond. Thereafter, the case should be returned to the Board, as appropriate for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs