Citation Nr: 1301889 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 09-21 949 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial increased rating (evaluation) in excess of 10 percent for degenerative joint disease of the left hip. 2. Entitlement to an initial increased rating (evaluation) in excess of 10 percent for degenerative joint disease of the right hip. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C.L. Krasinski, Counsel INTRODUCTION The Veteran served on active duty from August 1983 to August 2005. This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which granted service connection for degenerative joint disease of the left and right hips and assigned 10 percent ratings to each hip from September 1, 2005. A May 2007 rating decision granted a total rating based upon individual unemployability due to service connected disabilities from March 5, 2007. In June 2009, the Veteran requested a hearing before the Board. However, an August 2009 report of contact, indicates that the Veteran informed the RO that she wanted a hearing before the RO instead of a hearing before the Board. Accordingly, the Board finds that the Board hearing request had been withdrawn. See 38 C.F.R. § 20.704(d) (2012). The Veteran was afforded a RO hearing in May 2010. FINDINGS OF FACT 1. For the entire appeal period, the service-connected degenerative joint disease of the left hip is manifested by complaints of pain and objective evidence of flexion ranging from 50 degrees to 125 degrees, and abduction ranging from 30 degrees to 45 degrees, with no objective evidence of ankylosis, fracture, malunion, or nonunion of the joints, limitation of flexion to 30 degrees or less, or limitation of abduction with motion lost beyond 10 degrees. 2. For the entire appeal period, the service-connected degenerative joint disease of the right hip is manifested by complaints of pain and objective evidence of flexion ranging from 40 degrees to 125 degrees, and abduction ranging from 35 degrees to 45 degrees, with no objective evidence of ankylosis, fracture, malunion, or nonunion of the joints, limitation of flexion to 30 degrees or less, or limitation of abduction with motion lost beyond 10 degrees. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for the service-connected degenerative joint disease of the left hip have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5250 through 5255 (2012). 2. The criteria for an initial rating in excess of 10 percent for the service-connected degenerative joint disease of the right hip have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5250 through 5255 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty 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). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of the VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board concludes that the Veteran has been afforded appropriate notice under VCAA. The RO provided VCAA notice letters to the Veteran in December 2004 and March 2006, prior to the initial adjudication of the claims, and in September 2007 and February 2008. The letters notified the Veteran of what information and evidence must be submitted to substantiate claims for service connection and an increased rating, as well as what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also told to inform VA of any additional information or evidence that VA should have, and was told to submit evidence in support of his claim to the RO. The content of the letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The requirements of VCAA also include notice of a disability rating and an effective date for award of benefits if service connection is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The March 2006 and February 2008 letters provided the Veteran with notice of the laws regarding degrees of disability or effective dates. The claims were readjudicated in the April 2009 statement of the case and the September 2010 supplemental statement of the case, thus curing any lack of timeliness of notice. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Courts have held that were the underlying claim of service connection has been granted and there is disagreement as to downstream questions, the claim has been substantiated and there is no need to provide additional VCAA notice nor is there prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). In any event, the Veteran was provided additional notice for increased rating claims. The Board finds that all relevant evidence has been obtained with regard to the Veteran's claim, and the duty to assist requirements have been satisfied. All available service treatment records were obtained. The VA treatment records dated from 2005 to 2008 are associated with the claims folder. The Veteran submitted private medical records in support of her claims. In May 2008, she stated that she had no additional evidence to submit in support of her claim. There is no identified evidence that needs to be addressed. The Veteran underwent adequate VA examinations in July 2006, May 2008, June 2010, and march 2012 to obtain medical evidence as to the severity of the service-connected hip disabilities. Under the circumstances, the Board finds that there is no reasonable possibility that further assistance would aid the Veteran in substantiating the claims. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist her in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Legal Criteria Disability evaluations are determined by the 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 the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In Fenderson v. West, 12 Vet. App. 119 (1999), the Court held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. Cf. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127. See also Hart v. Mansfield, 21 Vet. App. 505 (2007). In DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court held that for disabilities evaluated on the basis of limitation of motion, VA was required to apply the provisions of 38 C.F.R. §§ 4.40, and 4.45, pertaining to functional impairment. The Court instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, or incoordination. Such inquiry was not to be limited to muscles or nerves. These determinations were, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, or incoordination. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. Under Diagnostic Code 5003, degenerative arthritis is rated as limitation of motion under the appropriate Diagnostic Codes for the specific joint involved. Limitation of motion of the hip is rated under either Diagnostic Code 5251, 5152, or 5253. Under Diagnostic Code 5251, a 10 percent rating is the maximum rating assignable for limitation of extension to 5 degrees. Under Diagnostic Code 5252, limitation of flexion of the thigh, a 10 percent rating for flexion limited to 45 degrees. A 20 percent is assignable if flexion is limited to 30 degrees. Under Diagnostic Code 5253, impairment of the thigh, the criteria for a 10 percent rating is the inability to cross the legs or external rotation limited to 15 degrees. The criterion for the next higher rating, 20 percent, is abduction limited to 10 degrees. Normal extension of the hip is to 0 degrees, and normal flexion is to 125 degrees. Normal abduction is to 45 degrees. 38 C.F.R. § 4.71a, Plate II. Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C.A. § 7104(a). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. In Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Analysis The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the claim for an initial disability rating in excess of 10 percent for the service-connected degenerative joint disease of the left hip. In order for a rating in excess of 10 percent to be assigned under Diagnostic Code 5252, the evidence must establish flexion of the thigh limited to 30 degrees or less. In the present case, the medical evidence shows that flexion of the left thigh has ranged from 50 to 125 degrees. The March 2012 VA examination report indicates that there was no objective evidence of pain with motion. There was no additional limitation of motion with repetition. The examiner indicated that there was no functional loss or functional impairment in the hip. The June 2010 VA examination report indicates that there was objective evidence of pain with motion; flexion of the left thigh was to 120 degrees. The May 2008 VA examination report notes that flexion of the left thigh was to 50 degrees; the Veteran stopped motion at that point due to pain. The July 2006 VA examination report indicates that there was full flexion of the left thigh with discomfort. Thus, a disability rating in excess of 10 percent is not warranted for the left hip under Diagnostic Code 5252 for the entire appeal period. The medical evidence shows that the Veteran had flexion of the left thigh beyond 30 degrees even when pain and discomfort was considered. The Board has also considered whether a higher rating is warranted under Diagnostic Code 5253. Under this code, a 20 percent evaluation is warranted when there is limitation of abduction of the thigh such that motion is lost beyond 10 degrees. There is no objective evidence of limitation of abduction of the left thigh to 10 degrees. Abduction of the left thigh range from 30 to 45 degrees. See the VA examination reports dated in March 2012, June 2010, May 2008, and July 2006. Full abduction was to 45 degrees. See 38 C.F.R. § 4.71a, Plate II. Thus, a higher rating is not warranted under Diagnostic Code 5253 since the medical evidence shows left thigh abduction beyond 10 degrees. The Board has considered whether a higher rating may be assigned on the basis of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination, lack of endurance or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca, supra. There is no evidence of additional limitation of flexion and abduction of the left thigh due to pain and repetitive motion. The VA examination reports show that pain was considered when range of motion testing was conducted. The March 2012 VA examination report indicates that there was no objective evidence of pain with motion. The examiner specifically noted that there was no additional loss of motion with repetition, no functional loss in the left hip, and no functional impairment due to the left hip disability. There was no localized tenderness to pain on palpation of the left hip. Muscle strength was 5/5 in the left hip and leg. The June 2010 A examination report indicates that there was objective evidence of pain on motion but flexion of the left thigh was to 120 degrees, well beyond 30 degrees, and there was full abduction of the left thigh. The examiner noted that there was objective evidence of pain following repetitive motion but that there was no additional limitation of motion after 3 repetitions of range of motion. The Veteran denied deformity, giving way, instability, weakness, incoordination, or decreased speed. The May 2008 VA examination report does not show any evidence of additional limitation of motion due to pain. Flexion of the left thigh was to 50 degrees. There was pain on abduction of the left thigh at 20 degrees but the Veteran was able to abduct the thigh to 35 degrees. The July 2006 VA examination report indicates that the Veteran had discomfort with left thigh flexion and abduction. The Veteran reported having severe constant pain. However, the examiner stated that there were no signs of constant severe pain when interviewing the Veteran. The examiner noted that there was no functional limitation of the left thigh with repetition. VA treatment records and the W. Army Medical Center records do not show any evidence of any additional limitation of motion or additional functional loss of the left thigh that would warrant a rating in excess of 10 percent. The Board finds that the service-connected left hip disability is not shown to produce any additional impairment or limitation of motion due to pain, lack of endurance, weakness, fatigability, incoordination or lack of endurance that would warrant a rating higher than 10 percent. See DeLuca; supra. In addition, ankylosis of the left hip and flail joint of the left hip are not shown in this case. See the March 2012, June 2010, May 2008, and July 2006 VA examination reports. Thus, a disability evaluation of 20 percent for the service-connected left hip disability is not warranted under Diagnostic Codes 5250 and 5254. There is no showing of malunion or impairment of the left femur. See the March 2012 x-ray examination report and the April 2007 x-ray examination report and MRI report. Thus, a disability evaluation of 20 percent for the service-connected left hip disability is not warranted under Diagnostic Code 5255. In summary, on this record, a disability evaluation of 20 percent for the service-connected left hip disability is not warranted. In view of the holding in Fenderson, supra, the Board has considered whether the Veteran was entitled to staged ratings for his service-connected degenerative joint disease of the left hip. It appears from the medical evidence that the disability has remained essentially stable over the entire period. Accordingly, a staged rating under Fenderson is not warranted. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the claim for an initial disability rating in excess of 10 percent for the service-connected degenerative joint disease of the right hip. In order for a rating in excess of 10 percent to be assigned under Diagnostic Code 5252, the evidence must establish flexion of the thigh limited to 30 degrees or less. In the present case, the medical evidence shows that flexion of the right thigh has ranged from 40 to 125 degrees. The March 2012 VA examination report indicates that there was no objective evidence of pain with motion. There was no additional limitation of motion with repetition. The examiner indicated that there was no functional loss or functional impairment in the hip. The June 2010 VA examination report indicates that there was objective evidence of pain with motion; flexion of the left thigh was to 115 degrees. The May 2008 VA examination report notes that flexion of the left thigh was to 50 degrees; the Veteran stopped motion at that point due to pain. The July 2006 VA examination report indicates that there was full flexion of the right thigh with discomfort. Thus, a disability rating in excess of 10 percent is not warranted for the left hip under Diagnostic Code 5252 for the entire appeal period. The medical evidence shows that the Veteran had flexion of the left thigh beyond 30 degrees even when pain and discomfort was considered. The Board has also considered whether a higher rating is warranted under Diagnostic Code 5253. Under this code, a 20 percent evaluation is warranted when there is limitation of abduction of the thigh such that motion is lost beyond 10 degrees. There is no objective evidence of limitation of abduction of the right thigh to 10 degrees. Abduction of the right thigh ranged from 35 to 45 degrees. See the VA examination reports dated in March 2012, June 2010, May 2008, and July 2006. Full abduction was to 45 degrees. See 38 C.F.R. § 4.71a, Plate II. Thus, a higher rating is not warranted under Diagnostic Code 5253 since the medical evidence shows left thigh abduction beyond 10 degrees. The Board has considered whether a higher rating may be assigned on the basis of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination, lack of endurance or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca, supra. There is no evidence of additional limitation of flexion and abduction of the right thigh due to pain and repetitive motion. The VA examination reports show that pain was considered when range of motion testing was conducted. The March 2012 VA examination report indicates that there was no objective evidence of pain with motion. The examiner specifically noted that there was no additional loss of motion with repetition, no functional loss in the right hip, and no functional impairment due to the right hip disability. There was no localized tenderness to pain on palpation of the right hip. Muscle strength was 5/5 in the right hip and leg. The June 2010 VA examination report indicates that there was objective evidence of pain on motion of the right thigh but flexion was to 115 degrees, which is well beyond 30 degrees, and there was abduction of the right thigh to 42 degrees. The examiner noted that there was no additional limitation after 3 repetitions of range of motion. The Veteran denied deformity, giving way, instability, weakness, incoordination, or decreased speed. The May 2008 VA examination report does not show any evidence of additional limitation of motion of the right thigh due to pain. Flexion of the right thigh was to 40 degrees. There was pain on abduction of the left thigh at 20 degrees but the Veteran was able to abduct the thigh to 35 degrees. The July 2006 VA examination report indicates that the Veteran had discomfort with left thigh flexion and abduction. The Veteran reported having severe constant pain. However, the examiner stated that there were no signs of constant severe pain when interviewing the Veteran. The examiner noted that there was no functional limitation of the right thigh with repetition. VA treatment records and the W. Army Medical Center records do not show any evidence of any additional limitation of motion or additional functional loss of the right thigh that would warrant a rating in excess of 10 percent. The Board finds that the service-connected right hip disability is not shown to produce any additional impairment or limitation of motion due to pain, lack of endurance, weakness, fatigability, incoordination or lack of endurance that would warrant a rating higher than 10 percent. See DeLuca; supra. The record shows that the Veteran underwent surgery of the service-connected right hip disability on July 19, 2007. A W.M.B. Army Medical Center record indicates that on July 19, 2007, the Veteran underwent a right hip arthroscopy with labral debridement. The Veteran was admitted overnight for pain control. Treatment records dated July 16, 2007 show that prior to the arthroscopy, range of motion of the right hip was zero degrees to 120 degrees with pain at the extremes of motion. A treatment record dated in October 2007, after the arthroscopy, indicates that range of motion of the right hip was flexion to 100 degrees and abduction was to 45 degrees. There is no indication that the right hip arthroscopy resulted in any additional limitation of motion of the right thigh or additional functional loss due to pain that would warrant a rating in excess of 10 percent. In addition, ankylosis of the right hip and flail joint of the right hip are not shown in this case. See the March 2012, June 2010, May 2008, and July 2006 VA examination reports. Thus, a disability evaluation of 20 percent for the service-connected right hip disability is not warranted under Diagnostic Codes 5250 and 5254. There is no showing of malunion or impairment of the right femur. See the March 2012 x-ray examination report and the April 2007 x-ray examination report and MRI report. Thus, a disability evaluation of 20 percent for the service-connected left hip disability is not warranted under Diagnostic Code 5255. In summary, on this record, a disability evaluation of 20 percent for the service-connected right hip disability is not warranted. In view of the holding in Fenderson, supra, the Board has considered whether the Veteran was entitled to staged ratings for his service-connected degenerative joint disease of the left hip. It appears from the medical evidence that the disability has remained essentially stable over the entire period. Accordingly, a staged rating under Fenderson is not warranted. With respect to the Veteran's claims, the Board has also considered her statements that her disabilities are worse that currently rated. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to her through his senses. Layno, 6 Vet. App. at 470. She is not, however, competent to identify a specific level of disability of these disorders according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's left and right hip disabilite ieshas been provided by the medical personnel who have examined her during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. As such, the Board finds these records to be more probative than the Veteran's subjective evidence of complaints of increased symptomatology. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (interest in the outcome of a proceeding may affect the credibility of testimony). In sum, after a careful review of the evidence of record, the Board finds that the benefit of the doubt rule is not applicable and the appeals are denied. The Board has also considered whether a higher extraschedular rating is warranted for the service-connected left and right hip disabilities. 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. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008); aff'd Thun v. Peake, 572 F.3d 1366 (Fed. Cir. 2009). Here, the rating criteria for the disability at issue reasonably describe and assess the Veteran's disability level and symptomatology. The rating criteria provides for higher ratings for additional or more severe symptoms than currently shown by the evidence. Thus, the demonstrated manifestations are contemplated by the provisions of the rating schedule. As the Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate. The Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. ORDER An initial disability evaluation in excess of 10 percent for the service-connected left hip degenerative joint disease is denied. An initial disability evaluation in excess of 10 percent for the service-connected right hip degenerative joint disease is denied. ____________________________________________ K.J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs