Citation Nr: 1304477 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 08-31 018 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to an increased rating for femur impairment due to right hip disability, status post fracture, currently rated 20 percent disabling. 2. Entitlement to a separate compensable rating for limitation of motion caused by right hip degenerative joint disease (DJD), status post fracture. 3. Entitlement to a total rating by reason of individual unemployability (TDIU). REPRESENTATION Appellant represented by: Jeany C. Mark, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The Veteran served on active duty from March 1976 to August 1978. These matters initially came before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The issues have been recharacterized to reflect the grant of a separate rating as discussed below. The Veteran testified at a hearing before a decision review officer at the RO in December 2008. In June 2010, the Board denied the claims. In an April 2012 memorandum decision, United States Court of Appeals for Veterans Claims (the Court) vacated the Board's decision and remanded the claims to the Board. The Court also affirmed the Board's decision as to a claim for service connection for lumbar spine DJD and degenerative disc disease (DDD), and that claim is therefore no longer on appeal. No pertinent records are in Virtual VA. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. Symptoms of femur impairment caused by the Veteran's right hip disability most nearly approximate malunion with moderate rather than marked disability, and there is no evidence of significant shortening of the lower extremity, impairment of the femur with nonunion and weight bearing preserved with aid of brace, fracture of the surgical neck, limitation of flexion of the thigh to 10 degrees, or ankylosis. 2. Symptoms of the Veteran's right hip DJD include noncompensable limitation of motion objectively confirmed by satisfactory evidence of painful motion. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 20 percent for femur impairment caused by right hip disability status post fracture have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5255 (2012). 2. With resolution of reasonable doubt in the appellant's favor, the criteria for a separate 10 percent rating for limitation of motion caused by right hip DJD status post fracture have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5003 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist claimants in the development of their claims. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The Court has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In a July 2006 pre-rating letter, the RO notified the Veteran of the evidence needed to substantiate the claim for an increased rating for right hip disability. This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 was amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). In any event, the July 2006 letter complied with this requirement. The Veteran has substantiated his status as a veteran. The Veteran was notified of all other elements of the Dingess notice, including the disability rating and effective date elements of his claim, in the July 2006 letter. In addition, in a May 2008 letter, the RO also provided additional information regarding disability ratings and the criteria applicable to the Veteran's increased rating claim in compliance with a decision of the Court that was subsequently vacated by the Federal Circuit. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Contrary to VCAA requirements, some of the VCAA-compliant notice in this case was provided after the initial adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). The timing deficiency was cured by readjudication of the claim in the August 2008 statement of the case statement of the case (SSOC). Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA obtained the Veteran's service treatment records (STRs) and all of the identified post-service private and VA treatment records, as well as the records of the Social Security Administration's (SSA's) disability determination. The Veteran was also afforded September 2006 and April 2009 VA examinations. As shown by the discussion below, these examinations were adequate because they were based on consideration of the Veteran's prior medical history and described the right hip disability in sufficient detail to allow the Board to make a fully informed evaluation. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Board notes that the Court in its memorandum decision concluded that the April 2009 VA examination was adequate and did not find that VA otherwise violated its duties to notify and assist the Veteran in this case. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claim for an increased rating for right hip disability is thus ready to be considered on the merits. Analysis Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. 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 v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, as explained below, uniform 20 and 10 percent ratings are warranted for the Veteran's right hip DJD. The Veteran's right hip disability is currently rated under 38 C.F.R. § 4.71a, DCs 5003-5055. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. DC 5003 is applicable to DJD or degenerative arthritis and DC 5255 applies to impairment of the femur. Significantly, separate ratings relating to the same disability are appropriate in some cases, where such ratings do not result in evaluation of the same manifestation under different diagnostic codes. 38 C.F.R. § 4.14 (avoidance of pyramiding); VAOPGCPREC 23-97; 62 Fed. Reg. 63604 (1997); VAOPGCPREC 9-98; 63 Fed. Reg. 56704 (1998) (allowing for separate ratings for limitation of motion and instability of the knee). In this case, the Court found that the Board erred in its June 2010 decision by not considering a separate rating for limitation of motion of the right hip under DC 5003. In her October 12, 2012 letter, the Veteran's attorney argued that a separate 10 percent rating for limitation of motion of the right hip is warranted. For the following reasons, the Board agrees. Under DC 5003, arthritis is rated based on limitation of motion under the appropriate diagnostic codes for the specific joint involved. When the limitation is noncompensable under those codes, however, a 10 percent rating is warranted for limitation of motion of the joint, provided that limitation of motion is confirmed by, among other things, satisfactory evidence of painful motion. As shown in the discussion below, although the limitation of motion of the Veteran's right hip is noncompensable under the appropriate diagnostic codes, this limitation of motion has been accompanied by satisfactory evidence of painful motion. For example, on the September 2006 VA examination, there was pain on flexion and on the April 2009 VA examination there was limitation of motion caused by pain on flexion. As there has been some limitation of motion of the right hip confirmed by satisfactory evidence of painful motion, a separate 10 percent rating is warranted under DC 5003 for limitation of motion caused by right hip DJD. As to the current 20 percent rating under DC 5055, that diagnostic code is applicable to impairment of the femur. Under DC 5255, a 20 percent rating is assigned when there is malunion of the femur with moderate hip or knee disability. A 30 percent rating is assigned when there is malunion of the femur with marked hip or knee disability. A 60 percent rating is assigned when there is a fracture of the surgical neck of the femur with a false joint or when there is a fracture of the shaft or anatomical neck of the femur with nonunion but without loose motion and weight bearing is preserved with the use of a brace. An 80 percent rating is assigned when there is a fracture of the shaft or anatomical neck of the femur with nonunion and loose motion. Alternatively, limited or irregular motion of the hip and thigh are addressed in DCs 5250 through 5254. DC 5250 provides various ratings for ankylosis of the hip but, as shown below, there is no evidence of ankylosis in this case. DC 5251, which deals with extension of the thigh, has a maximum rating that is less than the currently assigned 20 percent rating. DC 5252 provides a 20 percent rating when flexion of the thigh is limited to 30 degrees, a 30 percent rating when it is limited to 20 degrees, and a 40 percent rating when it is limited to 10 degrees. DC 5253, which addresses limited abduction of the thigh, provides a maximum rating of 20 percent. DC 5254 addresses flail joint which, as shown below, is not present in this case. Normal range of motion in the hip is flexion to 125 degrees and abduction to 45 degrees. See 38 C.F.R. § 4.71a , Plate II (2011). As noted, a separate rating has been assigned in this decision for noncompensable limitation of motion. The STRs reflect that the Veteran fractured his right hip during service and was treated with open reduction of the hip and removal of the inferomedial aspect of the femoral head fragment. On the September 2006 VA examination, the Veteran reported pain, weakness, stiffness, heat, instability, and locking. He reported that his hip disability flared up approximately once per week for two to three days. The Veteran reported that flares limited his activity and that they improved with rest and heat or cold packs. He occasionally used canes at home but did not use other assistive devices. He estimated that he missed 5 weeks of work in the past year due to hip pain and was subsequently laid off from his former job as a union president and accountant. The Veteran reported that he was unable to do yard work due to his hip pain and that his hip pain made it difficult to dress and walk. He estimated that he could walk a mile if he had to. On examination, the Veteran was noted to ambulate without a limp but with a stiff gait. He could flex his hip to 95 degrees with minimal pain at the extreme of this range of motion. He could extend his hip to 20 degrees, adduct to 20 degrees, abduct to 25 degrees, externally rotate to 40 degrees, and internally rotate to 0 degrees. The Veteran did not have significant pain with these motions. There was no additional disability after repetitive use. The examiner wrote that he could not address range of motion during flare-ups without resorting to speculation because a flare-up was not occurring at that time. X-rays of the hip showed degenerative changes with loss of joint space and osteophyte formation. There was deformity of the femoral head consistent with previous fracture. The examiner diagnosed moderate degenerative changes of the right hip status post femoral head fracture. On the April 2009 VA examination, the Veteran reported constant pain in his posterior right hip and that the pain flared in intensity several times per month. He sometimes used a cane to walk as a result of his hip and back problems. He reported that his hip was presently amidst a flare. On examination the Veteran was able to flex his hip to 95 degrees, with limitation of motion caused by pain. He could extend his hip to 25 degrees, adduct to 20 degrees, abduct to 25 degrees, externally rotate to 40 degrees, and internally rotate to 5 degrees. There was no additional impairment after three repetitive motions. Significantly, the examiner noted that the Veteran felt he was having a flare-up at the time of the examination. The X-ray impression was stable moderate to severe degenerative arthritis of the right hip and the diagnosis was right hip repaired fracture with residual DJD. VA treatment records show treatment for right hip pain. An X-ray in May 2008 showed stable moderate to severe degenerative osteoarthritis of the right hip. The Veteran was prescribed pain medication for his arthritis. An SSA disability evaluation that was performed in 2005 indicated that the Veteran was able to flex his right hip to 90 degrees. The Veteran had discomfort with rotation of the hips, but this was actually worse on the left side. There was crepitus in both hips but the Veteran had full ability to flex and extend his knees. He did not walk with a limp. In a written statement that was received by the RO in June 2008 the Veteran explained that his hip pain was increasing. He claimed that he was told that a hip replacement or resurfacing would help relieve his increasing arthritis, but that he declined to undergo either of these procedures. At his hearing in December 2008 the Veteran reiterated that his activities were limited by pain in his right hip and his back. The Veteran is not service connected for a back disability. The pain medication helped relieve the Veteran's hip pain well. He attended physical therapy for his hip and back. He used a cane and a walker, although it was unclear if this was a result of his hip disability or his non-service connected back disability. The Veteran testified that the combination of his hip pain and his back pain caused him to be unable to work. The above evidence reflects that the Veteran's femur is impaired, but there is no evidence of nonunion or fracture of the surgical neck with false joint. Ratings of 60 percent or higher are therefore not warranted under DC 5255. The only remaining question is whether the malunion or its equivalent causes slight, moderate, or marked hip disability. The terms slight, moderate, and marked are not defined in the Rating Schedule and an examiner's characterization of a disability is not binding on the Board. Given the significant range of motion of the right hip, which included flexion of at least 90 degrees, twice as much as the 45 degrees required for the minimum compensable rating, along with significant range of motion in all other planes, including during a flare-up on the April 2009 VA examination, and lack of other significant abnormalities, the Board finds that the evidence most nearly approximates malunion with moderate hip disability warranting a 20 percent rating. This rating takes into account the subjective symptoms described by the Veteran such as pain and weakness, which do not indicate more than moderate impairment. A higher, 30 percent rating is therefore not warranted under DC 5255. In addition, the above range of motion figures reflect that limitation of motion of the right hip joint would be noncompensable under all the diagnostic codes addressing limitation of motion. When assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Here, the September 2006 VA examiner declined to offer an opinion as to additional functional limitation based on flare-ups, but the April 2009 VA examiner indicated that a flare-up was occurring during the examination, yet, even after three repetitions, there was no additional limitation due to the DeLuca factors. Moreover, there is no other evidence throughout the appeal period indicating that there was functional limitation due to the DeLuca factors that would have resulted in motion more nearly approximating flexion limited to 20 degrees warranting a higher, 30 percent rating under DC 5252. Further, as noted, there is already a separate rating assigned for limitation of hip motion. The Veteran's attorney argued in her October 2012 letter that a 60 percent rating was warranted under DC 5255 based on nonunion, without loose motion, and weight bearing being preserved with the aid of a brace. The Board finds, however, that although the Veteran indicated on both VA examinations and in private treatment records that he used a cane, and indicated in May 2008 that he used a cane and walker, the above evidence including X-rays showing no abnormality of the shaft or neck of the femur reflects that the symptoms of the right hip disability by themselves (as opposed to his nonservice-connected back disability) did not more nearly approximate fracture of the shaft or anatomical neck with nonunion and weight bearing preserved with the aid of a brace. The Veteran's attorney also argued that the Veteran was entitled to a higher rating under DC 5275, which provides for ratings where there is shortening of the bones of the lower extremity of at least 1 and 1/4 to 2 inches, with shortening of 3 to 3 and 1/2 inches required for a higher, 40 percent rating. The Board notes, however that the April 2009 VA examiner found that there was no leg shortening, and the September 2000 and October 2008 treatment notes cited by the Veteran's attorney do not indicate shortening to a degree warranting any higher rating. As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. at 115. 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. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. The discussion above reflects that the symptoms of the Veteran's right hip disability are fully contemplated by the applicable rating criteria. As shown above, the symptoms of the Veteran's right hip disability, including his reported pain, weakness, stiffness, heat, instability, and locking, were considered by the Board, and the limitation of motion due to pain was contemplated by the separate 10 percent rating under DC 5003. The criteria can therefore be said to reasonably describe the Veteran's disability level and symptomatology, consideration of whether there are other related factors such as those provided by the regulation as governing norms is not required, and referral for consideration of an extraschedular rating for right hip DJD is not warranted. 38 C.F.R. § 3.321(b)(1). For the foregoing reasons, ratings of 20 and 10 percent are warranted for the femur impairment and limitation of motion, respectively, that are caused by the Veteran's right hip disability. The benefit-of-the-doubt doctrine has been applied to the extent indicated and the preponderance of the evidence is against any higher rating. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). ORDER Entitlement to an increased rating for femur impairment due to right hip disability, status post fracture, currently rated 20 percent disabling, is denied. Entitlement to a separate 10 percent rating for limitation of motion caused by right hip DJD, status post fracture, is granted, subject to controlling regulations governing the payment of monetary awards. REMAND In its June 2010 memorandum decision, the Court vacated the Board's denial of the Veteran's claim for a TDIU because this issue is inextricably intertwined with the claim for an increased rating for right hip disability. In her October 2012 letter, the Veteran's attorney requested that the Veteran be afforded a VA examination as to whether his service connected right hip disability renders him unemployable under the applicable regulation. 38 C.F.R. § 4.16. For the following reasons, the Board will grant this request. While the Veteran is not eligible for consideration of a TDIU on a schedular basis, VA's policy is that that all Veterans who are unable to follow a substantially gainful employment by reason of service connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). In this case, there is evidence that the Veteran is unemployed but it is unclear whether this is due to his nonservice-connected back disability, his service connected right hip disability, or some combination of the two. SSA determined that the Veteran was disabled with a primary diagnosis of lumbar DJD and degenerative disc disease and a secondary diagnosis of right hip fracture. A VA examination is therefore warranted to determine if the Veteran is unemployable due to his service-connected disabilities, which are currently his right hip DJD femur impairment rated 20 percent and right hip DJD limitation of motion rated 10 percent, and right forehead scar residuals rated noncompensable, to be followed by consideration of whether referral to the Director, Compensation and Pension Service (the Director), for extraschedular consideration is warranted under 38 C.F.R. 4.16(b). Accordingly, the issue of entitlement to a TDIU is REMANDED for the following action: 1. Schedule the Veteran for a VA examination as to the effect of his service-connected disabilities on his employability. The claims folder must be made available for the examiner to review. The examiner is then requested to provide a detailed explanation of the functional impairment caused by the service connected pathology. The discussion should include daily limitations that are demonstrated and any that are made worse following exertion. In providing the requested opinion, the examiner must consider the degree of interference with the capacity for employment caused solely by the Veteran's service-connected disabilities, as distinguished from any nonservice-connected disabilities including his lumbar spine DJD and DDD. The requested opinion must also take into consideration the relevant employment and educational history. 2. Then, review any additional evidence and readjudicate the issue of entitlement to a TDIU, including consideration of whether referral to the Director for extraschedular consideration is warranted. Consideration should also be given to whether a social and industrial study or a vocational rehabilitation assessment should be obtained. If upon completion of the above action any benefit sought remains denied, the case should be returned to the Board after compliance with requisite appellate procedures, including issuance of a supplemental statement of the case. 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). 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). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs