Citation Nr: 1301722 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 09-29 551 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to a rating higher than 20 percent for right hip degenerative joint disease. 2. Entitlement to a rating higher than 20 percent for spondylolisthesis of the thoracolumbar spine prior to July 2, 2010. 3. Entitlement to a rating higher than 20 percent for spondylolisthesis of the thoracolumbar spine from July 2, 2010. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from March 1961 to February 1967 and from April 1967 to July 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in December 2008 of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2012, the Veteran, through his representative, waived initial consideration of the report of VA examination in July 2010, which followed the last supplemental statement of the case. Separate ratings for neurological findings and a rating of special monthly compensation for loss of use of a creative organ reasonably raised by the findings on VA examination in July 2010 are REMANDED to the RO via the Appeals Management Center in Washington, DC. FINDINGS OF FACT 1. The functional limitations of the right hip more nearly approximate marked hip disability. 2. Before July 2, 2010, spondylolisthesis of the thoracolumbar spine was characterized by forward flexion of the thoracolumbar spine to 45 degrees. 3. From July 2, 2010, the spondylolisthesis has been characterized by forward flexion of the thoracolumbar spine to 30 degrees and no ankylosis. CONCLUSIONS OF LAW 1. The criteria for a 30 percent rating for right hip degenerative joint disease have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5255 (2012). 2. Before July 2, 2010, the criteria for a rating higher than 20 percent for spondylolisthesis of the thoracolumbar spine before July 2, 2010, had not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5239 (2012). 3. From July 2, 2010, the criteria for a rating of 40 percent for spondylolisthesis of the thoracolumbar spine have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5239 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (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 a claim for increase, the VCAA notice requirements are the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting Veteran-specific notice as to effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre-adjudication VCAA notice by letter, dated in May 2008. The Veteran was notified of the evidence needed to substantiate the claim for increase. Additionally, the Veteran was notified that VA would obtain VA records and records of other Federal agencies, and that he could submit other records not in the custody of a Federal agency, such as private medical records, and that with his authorization VA would obtain any such records on his behalf. The notice included the general provisions for the effective date of a claim and the degree of disability assignable. As for content and the timing of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); Pelegrini v. Principi, 18 Vet. App. 112 (2004) (pre-adjudication VCAA notice); of Dingess v. Nicholson, 19 Vet. App. 473 (2006) (notice of the elements of the claim); and of Vazquez-Flores v. Peake, 580 F.3d 1270 (Fed. Cir. 2009) (evidence demonstrating a worsening or increase in severity of a disability and the effect that worsening has on employment). No further VCAA notice is required. Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained VA records and records of the Social Security Administration. The Veteran was afforded VA examinations in July 2008 and in July 2010. As the reports of the examinations address the Veteran's medical history, diagnoses, and symptomatology, the reports are adequate to decide the claims for increase. See Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007) (a medical examination is adequate, when based on consideration of the Veteran's medical history and examinations and describes the disability in sufficient detail so that the Board's evaluation is a fully informed one). As there is no indication of the existence of additional evidence to substantiate the claims, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS General Rating Principles A disability rating is determined by application of VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating 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 their residual conditions in civil occupations. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In rating a disability of the musculoskeletal system, the disability is primarily the inability, due to damage or infection in 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 or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca, 8 Vet. App at 206-07. Also with any form of arthritis or periarticular pathology painful motion is factor to be considered. 38 C.F.R. § 4.59. Right Hip The right hip degenerative joint disease is rated 20 percent under Diagnostic Codes 5010 and 5255. Rating Criteria Under Diagnostic Code 5010, arthritis due to trauma, substantiated by X-ray findings, is rated as degenerative arthritis. Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint involved. Limitation of motion of the hip is rated under Diagnostic Codes 5250 to 5255. Under Diagnostic Code 5250, favorable ankylosis of the hip in flexion at an angle between 20 degrees and 40 degrees and slight adduction or abduction is rated at a minimum of 60 percent. Under Diagnostic Code 5251, limitation of extension of the thigh to 5 degrees is rated 10 percent. Under Diagnostic Code 5252, flexion of the thigh limited to 45 degrees is rated 10 percent. Flexion limited to 30 degrees is rated 20 percent. Flexion limited to 20 degrees is rated 30 percent. Under Diagnostic Code 5253, either limitation of adduction of the thigh such that the legs cannot be crossed or limitation of rotation such that it is not possible to toe out more than 15 degrees is rated 10 percent. Limitation of abduction with motion lost beyond 10 degrees is rated 20 percent. Under Diagnostic Code 5254, a flail joint is rated at a minimum 80 percent. Under Diagnostic Code 5255, malunion of the femur with marked hip disability is rated 30 percent. Normal range of motion of the hip is 0 degrees to 125 degrees on flexion and 0 degrees to 45 degrees on abduction. 38 C.F.R. § 4.71, Plate II. Facts On VA examination in July 2008, it was noted that the Veteran frequently used a cane and that he could not stand for more than a few minutes and could not walk for more than a few yards. On examination, gait was normal gait and there was no evidence of abnormal weight bearing. Flexion of the right hip was to 60 degrees. Extension was to 20 degrees. Abduction was limited to 10 degrees. Internal rotation was to 40 degrees. External rotation was to 35 degrees. In January 2009, the Veteran stated that since April 2008 he had been unable to work as a truck driver because of right hip and low back pain. On VA examination in July 2010, the Veteran complained of right hip pain, stiffness, and weakness. There were moderate flare-ups on a weekly basis that lasted for hours. The precipitating factor was walking. Right hip flexion was to 110 degrees and then to 90 degrees after repetitive motion. Extension was to 20 degrees. The Veteran could not cross the right leg over the left and could not point his toes out greater than 15 degrees. There was no joint ankylosis. X-rays showed degenerative changes. Analysis Flexion to 60 degrees or to 90 degrees with pain on VA examinations does not more nearly approximate or equate to flexion to 45 degrees, considering functional loss under 38 C.F.R. §§ 4.40, 4.45, and 4.59, for a separate 10 percent rating under Diagnostic Code 5252. Extension to 20 degrees on each VA examination does not more nearly approximate or equate to extension limited to 5 degrees, considering functional loss under 38 C.F.R. §§ 4.40, 4.45, and 4.59, for a separate 10 percent rating under Diagnostic Code 5252. In the absence of evidence of favorable ankylosis of the hip, a rating under Diagnostic Code 5250 is not warranted. In the absence of evidence of a flail joint, a rating under Diagnostic Code 5254 is not warranted. Under Diagnostic Code 5253, on VA examination in July 2008, abduction was limited to 10 degrees. In July 2010, the Veteran could not cross his right leg over the left and he could not point his toes out greater than 15 degrees. Abduction to 10 degrees is rated 20 percent. Also on VA examination in July 2010, the Veteran could not cross his right leg over the left and he could not point his toes out greater than 15 degrees, which may be rated 10 percent each. But one disability manifesting with multiple symptoms, limitation of abduction, adduction, and rotation as here, cannot receive two separate ratings within a particular Diagnostic Code, unless the regulation expressly provides otherwise. See Cullen v. Shinseki, 24 Vet. App. 74, 84 (2010) (rejecting argument that one disability manifesting in multiple symptoms could receive two separate ratings within a particular diagnostic code "unless the regulation expressly provides otherwise"); see Burton v. Shinseki, 25 Vet. App. 1, 6 (2011) (Cullen specifically prohibits separate disability ratings for abduction and flexion limitations for a shoulder disability within the same Diagnostic Code). In accordance with Cullen, the highest single rating for limitation of abduction, adduction, or rotation under Diagnostic Code 5253 is 20 percent. Under Diagnostic Code 5255, the criteria for a 30 percent are malunion of the femur with marked hip disability. The words "moderate" and "marked" are not defined in the rating criteria and the Board must evaluate all of the evidence to obtain an equitable result. 38 C.F.R. § 4.6. Having reviewed the findings of the two VA examinations, the Veteran has hip impairment in abduction, adduction, and rotation, which cannot be rated separately under Diagnostic Code 5253, but the overall functional loss, considering 38 C.F.R. §§ 4.40, 4.45, 4.59, more nearly approximates marked hip disability under Diagnostic Code 5255, applying 38 C.F.R. § 4.7. The criteria for the next higher rating under Diagnostic Code 5255, a false hip joint or nonunion of the femur is not shown. As the criteria for additional higher schedular ratings have not been demonstrated, there is no factual basis for staged ratings. Thoracolumbar Spine Spondylolisthesis of the thoracolumbar spine is rated 20 percent under Diagnostic Codes 5010 and 5239. Rating Criteria Under Diagnostic Code 5010, arthritis due to trauma, substantiated by X-ray findings, is rated as degenerative arthritis. Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint involved. On the basis of limitation of motion, spondylolisthesis of the thoracolumbar spine is rated under the General Formula for Diseases and Injuries of the Spine (General Formula), including Diagnostic Code 5239, or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Intervertebral Disc Syndrome), whichever method results in the higher rating. Under the General Rating Formula, in evaluating disabilities of the spine, the criteria is for application with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The criteria for a 40 percent rating are forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation will be assigned of unfavorable ankylosis of the entire thoracolumbar spine. Also any objective neurological abnormality may be separately rated under the appropriate Diagnostic Code. The normal findings for range of motion of the lumbar spine are flexion to 90 degrees, extension to 30 degrees, lateral flexion, right and left, to 30 degrees, and rotation, right and left, to 30 degrees. 38 C.F.R. § 4.71a, Plate V. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, the criteria for the rating of 40 percent are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. The criteria for a 60 percent rating are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is a period of acute signs and symptoms that required bed rest prescribed by a physician and treatment by a physician. Facts In April 2008, a VA physician stated that the Veteran had been prescribed hydrocodone for chronic low back pain. On VA examination in July and August 2008, the Veteran's history of symptoms included fatigue, decreased motion, stiffness, weakness, spasms, pain, and severe flare-ups on a weekly basis. On examination there were no spasms, atrophy, guarding, or weakness. There was pain with motion. Forward flexion was to 45 degrees with pain at 20 degrees. In January 2009, the Veteran stated that since April 2008 he had been unable to work as a truck driver because of right hip and low back pain. On VA examination on July 2, 2010, history included urinary urgency, urinary frequency, erectile dysfunction, numbness, paresthesias, leg or foot weakness, and unsteadiness. Other symptoms included fatigue, decreased motion, stiffness, weakness, and pain. The Veteran used a cane to walk and could walk for a quarter of a mile. On examination, the Veteran did not have ankylosis of the thoracolumbar spine. Flexion to 30 degrees. The peripheral nerve reflexes were absent and hypoactive. A sensory examination showed decreased pain or pinprick sensation. Analysis Before July 2, 2010, forward flexion was to 45 degrees with pain, beginning at 20 degrees. There was no evidence of ankylosis. Forward flexion to 45 degrees does not more nearly approximate or equate to flexion limited to 30 degrees, the criteria for the next higher rating, considering functional loss due to pain, weakness, fatigue, incoordination, or lack of endurance, flare-ups, or painful movement under 38 C.F.R. §§ 4.40 , 4.45, 4.59. While the Veteran does experience pain, the pain does not raise to the level of the criteria for the next higher rating. See Mitchell v. Shineski, 25 Vet. App. 32, 43 (2011) (pain must affect some aspect of normal movement in order to constitute functional loss under 38 C.F.R. § 4.40). To this extent, the Board places greater weight on the objective findings of the examination than the Veteran's subjective complaints of pain. 38 C.F.R. §§ 4.40, 4.45. There is no evidence of incapacitating episodes, namely, periods of acute signs and symptoms that required bed rest prescribed by a physician and treatment by a physician, having a total duration of at least 4 weeks but less than 6 weeks during 12 months, the criteria for the next higher rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. On VA examination on July 2, 2010, forward flexion was to 30 degrees. There was no evidence of ankylosis. Forward flexion to 30 degrees equates to the criteria for the next higher rating, 40 percent under the General Formula for Diseases and Injuries of the Spine. In the absence of evidence of ankylosis of the thoracolumbar spine, the criteria for the next higher rating under the General Formula for Diseases and Injuries of the Spine are no met. Also, there is no evidence of incapacitating episodes, namely, periods of acute signs and symptoms that required bed rest prescribed by a physician and treatment by a physician, having a total duration of at least 6 weeks during 12 months, the criteria for the next higher rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. As for neurological findings of paresthesia and weakness of the lower extremities and loss of use of a creative organ reasonably raised on VA examination in July 2010, and the neurological findings are remanded to the RO for initial consideration. Extraschedular Consideration Although the Board is precluded by regulation from assigning an extraschedular ratings under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for such ratings. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate. This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular rating is therefore adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008) aff'd Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria reasonably describe the Veteran's symptomatology, namely, limitation of motion and functional loss. In other words, the Veteran does not have symptomatology not already encompassed in the Rating Schedule, and the assigned schedular ratings for right hip degenerative joint disease and spondylolisthesis of the thoracolumbar spine are adequate. Therefore, referral for extraschedular consideration under 38 C.F.R. § 3.321(b)(1) is not warranted. A Total Disability Rating for Compensation based on Individual Unemployability Where the Veteran expressly raises a claim for a total disability rating on the basis of individual unemployability, the claim is not a separate claim, but a part of a claim for increase. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (in a claim for increase, where the Veteran expressly raises a claim for a total disability rating on the basis of individual unemployability, the claim is not a separate claim, but a part of a claim for increase). In this case, during the appeal period, the RO separately adjudicated the claim for a total disability rating in the rating decision in December 2008, which the Veteran did not appeal. Bifurcation of a claim generally is within the discretion of VA. See Rice v. Shinseki, 22 Vet. App. at 455, note 7 (the Court explicitly noted the possibility of the separation of a total disability rating and a claim for increase). As the total disability rating was separately adjudicated and not appealed and new and material evidence under 38 C.F.R. § 3.156(b) was not received during the one-year appeal period, the rating decision became final based on the evidence of record, and the Board lacks appellate jurisdiction to review the claim. The Veteran may submit a new claim at any time. ORDER A 30 percent rating for right hip degenerative joint disease is granted, subject to the laws and regulations governing the award of monetary benefits. Before July 2, 2010, a rating higher than 20 percent for spondylolisthesis of the thoracolumbar spine is denied. From July 2, 2010, a 40 percent rating for spondylolisthesis of the thoracolumbar spine is granted, subject to the laws and regulations governing the award of monetary benefits. REMAND On VA examination in July 2010 there were neurological findings, including a history of erectile dysfunction, as it is unclear whether the neurological findings can be rated separately, further development under the duty to assist is needed. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran a VA examination to determine: Whether the Veteran has any objective neurological abnormalities, such as sciatica, bladder impairment, or erectile dysfunction, associated with the service-connected spondylolisthesis of the thoracolumbar spine. The Veteran's file must be reviewed by the VA examiner. 2. After the above development, adjudicate whether separate ratings are assignable for any objective neurological abnormalities associated with the service-connected spondylolisthesis of the thoracolumbar spine. If benefit sought is denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The 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. 38 U.S.C.A. §§ 5109B, 7112. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs