Citation Nr: 1306583	
Decision Date: 02/26/13    Archive Date: 03/01/13

DOCKET NO.  08-27 287	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to an initial evaluation in excess of 30 percent for depressive disorder. 

2.  Entitlement to an initial evaluation in excess of 20 percent for disc desiccation at L5-S1 with disc bulge, left neural foraminal stenosis, and radiculopathy. 

3.  Entitlement to an initial evaluation in excess of 10 percent for right knee degenerative disease of the anterior cruciate ligament with patellofemoral pain syndrome. 

4.  Entitlement to an initial evaluation in excess of 10 percent for left knee patellofemoral pain syndrome. 

5.  Entitlement to an initial evaluation in excess of 10 percent for status post right hip resurfacing arthroplasty prior to February 19, 2008, and in excess of 30 percent from April 1, 2009. 

6.  Entitlement to an initial evaluation in excess of 10 percent for left hip femoral head avascular necrosis. 

7.  Entitlement to an initial compensable evaluation for allergic rhinitis with polyposis.

8.  Entitlement to an initial compensable evaluation for sinusitis. 


WITNESS AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

T. Mainelli, Counsel


INTRODUCTION

The Veteran had active military service from February 1978 to April 2007. 

These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions rendered in August 2007 and July 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. 

In July 2010, the Veteran and his spouse testified at a video-conference hearing before the undersigned Veterans Law Judge (VLJ).  A transcript of that hearing is also associated with the claims folder. 

In March 2011, the Board remanded the claims listed on the title page to the agency of original jurisdiction (AOJ) for further evidentiary development.  As will be discussed further herein, the AOJ has substantially complied with the remand directives such that no further action is necessary in this regard.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). 

A review of the Virtual VA electronic records storage system does not reveal any additional documents not currently associated with the paper claims folder.

In connection with the implementation of the Board's awards of higher initial ratings for the Veteran's disabilities, any inferred issues regarding entitlement to special monthly compensation (SMC) are referred to the AOJ for appropriate action.   


FINDINGS OF FACT

1.  The Veteran's service-connected depressive disorder more nearly approximates the criteria for occupational and social impairment with deficiencies in most areas such as work, family relations, thinking and mood due to symptoms of pervasive suicidal thoughts, near-continuous panic or depression affecting the ability to function independently, neurocognitive slowing and difficulty in adapting to stressful circumstances, without total occupational and social impairment.

2.  Prior to May 15, 2008, the Veteran's chronic orthopedic manifestations of service-connected thoracolumbar spine disability were manifested by forward flexion to 60 degrees and a combined range of motion of 150 degrees even when considering functional impairment on use.

3.  On May 15, 2008, the Veteran's chronic orthopedic manifestations of service-connected thoracolumbar spine disability is shown to result in forward flexion limited to 30 degrees without ankylosis.

4.  For the entire appeal period, the Veteran's chronic neurologic manifestations of thoracolumbar spine disability have been manifested by S1 radiculopathy of the left lower extremity resulting in a mild sensory loss only.

5.  There are no instances of at least 6 weeks or more of incapacitating thoracolumbar spine intervertebral disc syndrome (IVDS) episodes during any 12-month period which required bed rest prescribed by a physician and treatment by a physician.

6.  The Veteran's service-connected right knee degenerative disease of the anterior cruciate ligament with patellofemoral pain syndrome is manifested by painful but noncompensable motion loss even when considering functional impairment on use; there is no ankylosis, instability or subluxation, dislocated or removed semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum.   

7.  The Veteran's service-connected left knee patellofemoral pain syndrome is manifested by painful but noncompensable motion loss even when considering functional impairment on use; there is no ankylosis, instability or subluxation, dislocated or removed semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum.   

8.  For the time period prior to April 1, 2009, the Veteran's service-connected right hip disability was manifested by painful but noncompensable motion loss even when considering functional impairment on use.

9.  For the time period since April 1, 2009, the Veteran's residuals of right hip resurfacing arthroplasty include 4-wheel walker dependence due to painful motion and weakness and the medical need for total hip replacement.

10.  The Veteran's service-connected left hip femoral head avascular necrosis is manifested by painful but noncompensable motion loss even when considering functional impairment on use. 

11.  The Veteran's service-connected allergic rhinitis with polyposis has not been manifested by greater than 50 percent nasal passage obstruction on both sides, complete nasal obstruction on one side, or nasal polyps.

12.  The Veteran's service-connected sinusitis disability is manifested by 5-6 non-incapacitating episodes of sinusitis per year characterized by headaches, pain, and purulent discharge or crusting, but there are no incapacitating episodes of sinusitis requiring prolonged antibiotic treatment.


CONCLUSIONS OF LAW

1.  For the entire appeal period, the criteria for an initial 70 percent rating for depressive disorder, but no higher, have been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321(b), 4.1, 4.2, 4.7, 4.130, Diagnostic Code (DC) 9434 (2012).

2.  Prior to May 15, 2008, the criteria for an initial rating in excess of 20 percent for the chronic orthopedic manifestations of thoracolumbar spine disability have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.321(b), 4.1-4.14, 4.71a, DCs 5237-43 (2012).

3.  As of May 15, 2008, the criteria for an initial 40 percent rating, but no higher, for the chronic orthopedic manifestations of thoracolumbar spine disability have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.321(b), 4.1-4.14, 4.71a, DCs 5237-43 (2012).

4.  For the entire appeal period, a separate 10 percent rating, but no higher, for the chronic neurologic manifestation of left lower extremity radiculopathy have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.321(b), 4.1-4.14, 4.71a, 4.124a, DCs 5237-43, 8720 (2012).

5.  The criteria for an initial evaluation in excess of 10 percent for right knee degenerative disease of the anterior cruciate ligament with patellofemoral pain syndrome have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b), 4.1-4.14, 4.40, 4.45, 4.71a, DCs 5003-10, 5257, 5260, 5261 (2012). 

6.  The criteria for an initial evaluation in excess of 10 percent for left knee patellofemoral pain syndrome have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b), 4.1-4.14, 4.40, 4.45, 4.71a, DCs 5003-10, 5257, 5260, 5261 (2012).

7.  Prior to February 19, 2008, the criteria for an initial evaluation in excess of 10 percent for status post right hip resurfacing arthroplasty have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b), 4.1-4.14, 4.40, 4.45, 4.71a, DCs 5003-10, 5054, 5250-5255 (2012).

8.  As of April 1, 2009, the criteria for an initial 90 percent evaluation, but no higher, for status post right hip resurfacing arthroplasty have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b), 4.1-4.14, 4.40, 4.45, 4.71a, DCs 5003-10, 5054, 5250-5255 (2012).

9.  The criteria for an initial evaluation in excess of 10 percent for left hip femoral head avascular necrosis have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b), 4.1-4.14, 4.40, 4.45, 4.71a, DCs 5003-10, 5250-5255 (2012).

10.  The criteria for an initial compensable evaluation for allergic rhinitis with polyposis have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b), 4.1-4.14, 4.97, 4.96(a), DC 6522 (2012).

11.  The criteria for an initial 10 percent evaluation, but no higher, for sinusitis have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b), 4.1-4.14, 4.97, 4.96(a), DC 6514 (2012).




REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Duty to Notify and the Duty to Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). 

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.  The notification requirements are referred to as Type One, Type Two, and Type Three, respectively.  See Shinseki v. Sanders, 129 S. Ct. 1696   (2009). 

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). 

Here, the Veteran is challenging the initial evaluations assigned following grants of service connection.  In Dingess, the United States Court of Appeals for Veterans Claims (Court) held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  Id. at 490-91.  Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. 

VA has a duty to assist a claimant in the development of the claims.  This duty includes assisting the claimant in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. 

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  In this case, the RO has obtained the Veteran's STRs and clinical records from private and VA providers of treatment.  The RO has also obtained medical and legal documents pertaining to the Veteran's award of disability benefits from the Social Security Administration.  There no outstanding requests to obtain any VA records, or any private medical records for which the Veteran has identified and authorized VA to obtain on his behalf. 

With respect to all of these claims, VA provided the Veteran with VA Compensation and Pension (C&P) examinations as recent as April 2011.  These examination reports provide all findings necessary to decide the claims.  As discussed below, the April 2011 VA mental disorders examiner appeared to dissociate symptoms related to the Veteran's panic disorder from the service-connected depressive disorder.  However, as discussed further herein, the Board has determined that all currently manifested psychiatric symptoms are of service-connected origin.  See Mittleider v. West, 11 Vet. App. 181, 182 (1998).  Therefore, further examination so as to delineate the symptomatology is not necessary.  Moreover, since the April 2011 VA examinations, the Board does not find that the lay or medical evidence suggests an increased severity of symptoms to the extent that higher schedular ratings may still be possible.  Thus, there is no duty to provide further medical examination on the initial rating claims.  See VAOPGCPREC 11-95 (Apr. 7, 1995).

The Board next finds that the AOJ has substantially complied with the Board's March 2011 remand directives.  In this respect, the AOJ obtained updated VA clinic records, provided the Veteran with examinations for all of his disabilities, and readjudicated the claims.  Therefore, the Board finds that the AOJ has substantially complied with the March 2011 remand directives such that no further action is necessary in this regard.  See D'Aries, supra.

Finally, in Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  At the hearing in July 2010, this VLJ interviewed the Veteran and his spouse to determine whether there was any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claims.  Moreover, testimony was elicited from the Veteran and his spouse regarding the Veteran's symptomatology which is a central question on appeal.  The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor has identified any prejudice in the conduct of the hearing.  To the extent that any prejudice is perceived, it was cured with Board remand for additional evidentiary development.  As such, the Board finds that, consistent with Bryant, this VLJ complied with the duties set forth in 38 C.F.R. 
§ 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. 

Overall, the Board finds that the evidence of record is sufficient to decide the claims on appeal, and that there is no reasonable possibility that any further assistance would aid in substantiating these claims.  Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims.  Hence, no further notice or assistance is required to fulfill VA's duty to assist him in the development of the claims.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).

Applicable law and regulations

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 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 civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. 

In evaluating the severity of a particular disability, it is essential to consider its history.  38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

If there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based on the facts found.  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded).  Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor.  38 C.F.R. § 4.3. 

The Veteran's service-connected depressive disorder is evaluated as 30 percent disabling under the criteria of DC 9434.  See 38 C.F.R. § 4.130.  A 30 percent rating contemplates occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occasional tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal) due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events).

A 50 percent rating contemplates occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships.  Id.

A 70 percent evaluation is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships.  Id. 

A 100 percent evaluation is warranted where there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.  Id. 

The nomenclature employed in the portion of VA's Rating Schedule that addresses service-connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (also known as "DSM-IV").  38 C.F.R. § 4.130.  DSM-IV contains a Global Assessment of Functioning (GAF) scale, with scores ranging between zero and 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness.  Higher scores correspond to better functioning of the individual. 

Under DSM-IV, GAF scores ranging between 61 and 70 are assigned when there are some mild symptoms (e.g., depressed mood and mild insomnia), or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but when the individual is functioning pretty well and has some meaningful interpersonal relationships. 

GAF scores ranging between 51 and 60 are assigned when there are moderate symptoms (like flat affect and circumstantial speech, and occasional panic attacks), or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). 

GAF scores ranging between 41 and 50 are assigned when there are serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting), or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). 

GAF scores ranging between 31 and 40 are assigned when there is some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family and is unable to work). 

Symptoms listed in VA's general rating formula for mental disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.  Mauerhan v. Principi, 16 Vet. App. 436 (2002). 

According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered.  38 C.F.R. § 4.126(a).  In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination.  Id.  Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely the basis of social impairment.  38 C.F.R. § 4.126(b).

The Board notes that the Veteran holds additional diagnoses of PTSD and panic disorder with agoraphobia which were diagnosed in service and thereafter.  The Board attributes all signs of psychiatric impairment to service-connected origin.  See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (holding that VA is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence that does so). 

Evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures.  It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.  38 C.F.R. § 4.40.  The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement.  38 C.F.R. § 4.45.

Under DC 5003, degenerative arthritis, when established by x-ray findings, will be rated on the basis of limitation of motion under the appropriate DCs for the specific joint or joints involved.  When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate DCs, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion to be combined, not added under DC 5003.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion.  38 C.F.R. § 4.71a, DC 5003.

The Court has held that pain alone does not equate with functional loss under 38 C.F.R. §§ 4.40 and 4.45 but may cause functional loss if affecting some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance.  Mitchell (Tyra) v. Shinseki, 25 Vet. App. 32 (2011).

Painful motion with joint or periarticular pathology and unstable joints due to healed injury are recognized as productive of disability entitled to at least a minimal compensable rating for the joint.  38 C.F.R. § 4.59.  The application of 38 C.F.R. § 4.59 is not limited to arthritis-related claims.  Burton v. Shinseki, 25 Vet. App. 1 (2011).

The Board considers several diagnostic codes in evaluating the Veteran's thoracolumbar spine disability.  DC 5235 (vertebral fracture or dislocation), DC 5236 (sacroiliac injury and weakness), DC 5237 (lumbosacral or cervical strain), DC 5238 (spinal stenosis), DC 5239 (spondylolisthesis or segmental instability), DC 5240 (ankylosing spondylitis), DC 5241 (spinal fusion), DC 5242 (degenerative arthritis of the spine) (see also, DC 5003), and DC 5243 (IVDS) are evaluated under the General Rating Formula for Diseases and Injuries of the Spine.  38 C.F.R. § 4.71a. 

The General Rating Formula for Diseases and Injuries of the Spine provides for the assignment of a 20 percent rating where forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  A 40 percent rating requires forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine.  A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine.  Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. 

For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion is zero to 30 degrees, and left and right lateral rotation is zero to 30 degrees.  The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation.  The normal combined range of motion of the thoracolumbar spine is 240 degrees.  The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.  Id. at Note (2).  See also 38 C.F.R. § 4.71a, Plate V.

For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.  Id. at Note (5). 

IVDS (preoperatively or postoperatively) will be evaluated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25.  38 C.F.R. § 4.71a, DC 5243. 

According to the Formula for Rating IVDS Based on Incapacitating Episodes, a 20 percent rating contemplates incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months.  A 40 percent rating requires evidence of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months.  A 60 percent rating requires evidence of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 

For purposes of evaluations under DC 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician.  Id. at Note 1.

The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case" and involves consideration of such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology.  Butts v. Brown, 5 Vet. App. 532, 538 (1993).  In rating disability involving injury to the peripheral nerves and their residuals, attention is to be given to the site and character of injury, the relative impairment in motor function, trophic changes, or sensory disturbances.  38 C.F.R. § 4.120.

Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis.  38 C.F.R. § 4.123.  The maximum rating which may be assigned for neuritis not characterized by organic changes as noted above will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis.  Id.  Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate, incomplete paralysis.  38 C.F.R. § 4.124.

In rating diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration.  38 C.F.R. § 4.124a.  When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.  Id.  The ratings for peripheral nerves are for unilateral involvement; when bilateral, they are combined with application of the bilateral factor.  Id.

DC 8520 provides the rating criteria for paralysis of the sciatic nerve, and therefore neuritis and neuralgia of that nerve.  38 C.F.R. § 4.124a, DC 8520.  Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost.  Id.  Disability ratings of 10 percent, 20 percent and 40 percent are assignable for incomplete paralysis which is mild, moderate or moderately severe in degree, respectively.  Id.  A 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy.  Id.  DC 8620 refers to neuritis of the sciatic nerve while DC 8720 refers to neuralgia of the sciatic nerve. 

The words "slight," "moderate" and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just."  38 C.F.R. § 4.6.  The use of descriptive terminology by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue.  All evidence must be evaluated in arriving at a decision.  38 U.S.C.A. § 7104(a); 38 C.F.R. §§ 4.2, 4.6.

Within 38 C.F.R. § 4.71a, there are multiple DCs that evaluate impairment resulting from service-connected knee disorders, including DC 5256 (ankylosis), DC 5257 (other impairment, including recurrent subluxation or lateral instability), DC 5258 (dislocated semilunar cartilage), DC 5259 (symptomatic removal of semilunar cartilage), DC 5260 (limitation of flexion), DC 5261 (limitation of extension), DC 5262 (impairment of the tibia and fibula), and DC 5263 (genu recurvatum). 

The criteria of DC 5256 do not apply as there is no lay or medical evidence of ankylosis.

According to DC 5257, a 10 percent rating will be assigned with evidence of slight recurrent subluxation or lateral instability of a knee; a 20 percent rating will be assigned with evidence of moderate recurrent subluxation or lateral instability; and a 30 percent rating will be assigned with evidence of severe recurrent subluxation or lateral instability.  38 C.F.R. § 4.71a, DC 5257.

Pursuant to 38 C.F.R. §§ 4.40 and 4.45, pain is inapplicable to ratings under DC 5257 because it is not predicated on loss of range of motion.  See Johnson v. Brown, 9 Vet. App. 7, 11 (1996).

The criteria of DCs 5258 and 5259 do not apply, as there is no history or current evidence of dislocation of semilunar cartilage or history of removal of semilunar cartilage.

VA's Office of General Counsel has stated that compensating a claimant for separate functional impairment under DCs 5257 and 5003 does not constitute pyramiding.  VAOPGCPREC 23-97 (July 1, 1997).  In this opinion, the VA General Counsel held that a Veteran who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257, provided that a separate rating is based upon additional disability.  Subsequently, in VAOPGCPREC 9-98 (Aug. 14, 1998), the VA General Counsel  further explained that if a Veteran has a disability rating under DC 5257 for instability of the knee, and there is also x-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59.  See also VAOPGCPREC 9-04 (Sept. 17, 2004) (which finds that separate ratings under DC 5260 for limitation of flexion of the leg and DC 5261 for limitation of extension of the leg may be assigned for disability of the same joint).

The criteria that focus on limitation of motion of the knee are DCs 5260 and 5261.  Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion.  See 38 C.F.R. § 4.71a, Plate II.  Under DC 5260, a noncompensable rating will be assigned for limitation of flexion of the leg to 60 degrees; a 10 percent rating will be assigned for limitation of flexion of the leg to 45 degrees; a 20 percent rating will be assigned for limitation of flexion of the leg to 30 degrees; and a 30 percent rating will be assigned for limitation of flexion of the leg to 15 degrees.  38 C.F.R. § 4.71a, DC 5260. 

Under DC 5261, a noncompensable rating will be assigned for limitation of extension of the leg to 5 degrees; a 10 percent rating will be assigned for limitation of extension of the leg to 10 degrees; a 20 percent rating will be assigned for limitation of extension of the leg to 15 degrees; a 30 percent rating will be assigned for limitation of extension of the leg to 20 degrees; a 40 percent rating will be assigned for limitation of extension of the leg to 30 degrees; and a 50 percent rating will be assigned for limitation of extension of the leg to 45 degrees.  38 C.F.R. § 4.71a, DC 5261.

The criteria of DC 5262 do not apply as there is no history of impairment of the tibia and fibula involving malunion or nonunion.  38 C.F.R. § 4.71a, DC 5262.

The criteria of DC 5263 do not apply as there is no lay or medical evidence of genu recurvatum.  38 C.F.R. § 4.71a, DC 5263.

The rating criteria for evaluating hip disabilities are located within DCs 5250-54.  DC 5250 provides a 60 percent evaluation for favorable hip ankylosis; a 70 percent evaluation for intermediate hip ankylosis; and a 90 percent evaluation for unfavorable hip ankylosis.

DC 5251 provides a maximum rating of 10 percent for limitation of extension to 5 degrees.  DC 5252 provides a 10 percent rating for limitation of flexion to 45 degrees; a 20 percent rating where flexion is limited to 30 degrees; a 30 percent rating where flexion is limited to 20 degrees; and a 40 percent rating where flexion is limited to 10 degrees.  DC 5253 provides a 10 percent evaluation when there is limitation of adduction such that the legs cannot be crossed, or limitation of rotation such that it is not possible to toe out more than 15 degrees.  A 20 percent rating requires limitation of abduction with motion lost beyond 10 degrees.  Normal hip flexion is from zero to 125 degrees, and normal hip abduction is from zero to 45 degrees.  38 C.F.R. § 4.71, Plate II. 

DC 5254 provides an 80 percent evaluation for flail joint of the hip.

Under DC 5054 for evaluation of prosthetic hip replacement, a total evaluation is assigned for 1 year following implantation of the prosthesis.  Following implantation of prosthesis, a 50 percent evaluation is assigned for moderately severe residuals of weakness, pain or limitation of motion.  A 70 percent evaluation is assigned for markedly severe residuals of weakness, pain or limitation of motion and a 90 percent evaluation is assigned for painful motion or weakness such as to require the use of crutches.  38 C.F.R. § 4.71a, DC 5054.  Note (1) for prosthetic implants provides that the 100 percent rating for one year following implantation of prosthesis will commence after initial grant of the one month total rating assigned under § 4.30 following hospital discharge. 

The Board notes that DC 5275 for shortening of the bones of the lower extremity is potentially applicable in this case.  Under DC 5275, a 10 percent evaluation is warranted for shortening of the bones from 1 1/4 to 2 inches.  A Note to DC 5275 notes that this rating is not to be combined with other ratings for fracture or faulty union of the same extremity.  Nonetheless, there is no lay or medical evidence in this case of shortening of the lower extremity bones from 1 1/4 to 2 inches.

VA's Schedule for Rating Disabilities considers allergic rhinitis and sinusitis as separate disabilities for rating purposes.  See 38 C.F.R. § 4.97, DC 6510-14 (sinusitis) and DC 6522 (allergic or vasomotor rhinitis).  If co-existing, separate disability ratings may be assigned for both disorders.  38 C.F.R. § 4.96(a).

A noncompensable rating is assigned for sinusitis when it is detected by X-ray only.  38 C.F.R. § 4.97, DC 6514.  A 10 percent rating is assigned when a Veteran has either one or two incapacitating episodes per year of sinusitis (an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician) requiring prolonged (lasting four to six weeks) antibiotic treatment, or has three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting.  A 30 percent rating is assigned when a Veteran has either three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or has more than six non- incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting.  A 50 percent rating is warranted following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. 

For allergic or vasomotor rhinitis, without polyps, but with greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side, a 10 percent rating is warranted.  38 C.F.R. § 4.97 DC 6522.  With polyps, a 30 percent rating is warranted.

In every instance where the schedule does not provide a zero percent rating for a diagnostic code, a zero percent rating shall be assigned when the requirements for a compensable rating are not met.  38 C.F.R. § 4.31.

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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Factual summary

The Veteran had active military service from February 1978 to April 2007.  In pertinent part, his service treatment records (STRs) reflect his treatment for low back pain, bilateral knee pain, bilateral hip pain, sinusitis, rhinitis, and psychiatric symptoms.  His diagnoses included sacroiliac dysfunction, patellofemoral pain syndrome and/or chondromalacia patella (CMP) of both knees, probable left hip bursitis, rhinorrhea, sinusitis and nasal polyposis.

In April 1990, the Veteran underwent nasal septoplasty due to nasal septal deformity with partial nasal obstruction and intermittent epistaxis.

An October 1997 mental health evaluation included the Veteran's report of panic attacks when in public manifested by intense fear, anxiety, sense of dread, profuse sweating, shortness of breath, heart pounding, muscle tension, jitteriness, gastrointestinal (GI) upset, sense of derealization and sense of depersonalization.  A diagnosis of panic disorder with agoraphobia was provided.

A magnetic resonance imaging (MRI) scan of the left knee in March 2000 was interpreted as showing moderate chondromalacia patella with subchondral cyst.  In May 2005, the Veteran underwent right hip core decompression with bone grafting of femoral head osteonecrosis.  In June 2005, the Veteran was diagnosed with sciatica.  An MRI examination in August 2005 was interpreted as showing mild lumbar spondylosis.  An MRI examination in November 2006 was interpreted as showing prominent disc desiccation at L5-S1 with asymmetric broad-based disc bulge causing mild left neural foraminal narrowing as well as mild disc desiccation at L4-L5.  A December 2006 MRI examination of the right hip was interpreted as showing findings consistent with avascular necrosis involving the right femoral head.

A December 2006 private neurosurgery report reflected an assessment of low back pain secondary to degenerative disc disease at L5-S1 with S1 sensory radiculopathy without nerve root compromise.

The Veteran's January 2007 retirement examination reflected diagnoses of chronic sinusitis, multi-level disc disease, bilateral knee pain, panic attacks without agoraphobia, chronic insomnia, posttraumatic stress disorder (PTSD), and situational depression.  An MRI examination of the left knee was interpreted as showing partial thickness cartilage defect at the medial patellar facet and small superior patellar hypertrophic spur.  An MRI examination of the right knee was interpreted as showing partial thickness cartilage defect at the medial patellar facet with minimal joint effusion.  

The Veteran filed his original service connection claims on appeal in March 2007.  In written statements received in March and April 2007, the Veteran reported a history of hospitalization in 1985 due to suicidal ideations following a domestic dispute.  He reported subsequent diagnoses of panic disorder without agoraphobia, depressive disorder not otherwise specified (NOS) and PTSD which had progressively worsened and required long-term therapy.  He described symptoms of full blown panic attacks manifested by fears, emotional and physical shutting down, hiding, reclusiveness, crying, sweating and heart pounding.  He had fearful thoughts of future events such as meetings, ceremonies, and using modes of transportation.  He reported major difficulties with family relations and being unable to maintain friendships.  He had recently divorced his spouse.  The Veteran experienced extreme and uncontrollable mood problems with night tremors and daily suicidal thoughts.  He indicated that it was extremely difficult and disparaging to live with his symptoms.  He also indicated that, on too many days, he was not functional because of all of his problems.

With respect to his thoracolumbar spine disability, the Veteran described constant low back pain which radiated to his left lower extremity and resulted in paresthesia of the left foot.  He reported an inability to move each day without use of Valium and Tylenol #3.  He asserted that an MRI examination in 2006 demonstrated severe degenerative disc disease at L5-S1 with S1 nerve root enlargement and broad-based disc herniation compressing the S1 nerve root.

With respect to his bilateral knee disability, the Veteran described constant pain and uncomfortability.

With respect to his bilateral hip disability, the Veteran described constant right hip pain that radiated to the buttock, and was exacerbated with pivoting motion and walking short distances.  He further described extreme pain of both hips and pelvic areas which was restrictive.  He reported that medications helped tremendously and helped him to move without extreme pain.

With respect to his sinusitis and rhinitis disabilities, the Veteran described a history of sinusitis treated with immunotherapy in service.  He described current symptoms of persistent pain and bleeding associated with congestion and terrible airflow.

A May 2007 private neurology consultation reflected an impression of history of anxiety and severe depression which went hand in hand with the Veteran's muscular pain.  A differential diagnosis (ddx) included fibromyalgia.  There was also "fused tendon" in the thoracic nerve muscles and lower extremities.

On VA PTSD examination in July 2007, the Veteran reported being depressed on a daily basis which remitted when active.  He reported being anxious when in a car, but otherwise denied feeling significant anxiety.  He had been married to his second wife for two months, and described the relationship as "great."  He further described having 5 close friends and 5 social friends.  He denied suicide attempts, violence, assaultiveness, or substance abuse.  On mental status examination, the Veteran was described as clean and neatly groomed as well as appropriately and casually dressed.  His psychomotor activity, speech and thought process were unremarkable.  He was attentive towards the examiner, had a normal affect and an anxious mood.  Attention was intact.  He was oriented to person, time and place.  There were no delusions.  Intelligence was average.  The Veteran understood the outcomes of behavior, and had partial understanding that he had a problem.  He slept 4 to 6 hours per night, and had poor energy due to chronic pain.  The Veteran described feeling panicky while riding in modes of transportation or in crowds, but denied feeling panic absent a precipitating event.  As such, the examiner indicated that the Veteran did not meet the criteria for a panic disorder.  The Veteran had past, passive suicidal ideations but was at low-risk for self-harm.  He denied homicidal thoughts.  Impulse control was fair.  There were no episodes of violence, and the Veteran was able to maintain minimum personal hygiene.  Recent, remote and immediate memory were described as normal.  The examiner provided a diagnosis of depressive disorder NOS, and assigned a GAF score of 65.  The examiner opined that the Veteran's depressive disorder NOS did not impair occupational or social functioning. 

On VA general medical examination in July 2007, the Veteran described frequent nasal discharge and blood from his nose which occurred approximately two times per week.  He had breathing interference through the nose only in the early morning.  He denied purulent discharge.  He had pain in the maxillary and frontal regions, but had not had an incapacitating episode in the past year.  On physical examination, the Veteran had a deviated septum to the right with an approximate 50 percent obstruction, and mild tenderness to palpation of the maxillary sinus region.  There were no polyps, rhinoscleroni, purulent discharge, crusting, or adventitious breath sounds.  His medications consisted of Flonase nasal spray daily and Allegra D once daily or as needed.  The examiner diagnosed allergic rhinitis with chronic rhinitis and polyposis status post nasal septoplasty and polypectomy.

With respect to the low back disability, the Veteran reported daily unremitting low back pain with flare-ups precipitated by standing or walking for prolonged periods of time.  Any movement worsened his back pain.  He denied fatigability.  He also had shooting pain and numbness which ran down his left leg on a daily basis.  He was unsteady but had no falls.  He would walk only one block, or stand for a few minutes, due to back and hip pain.  His medications included Valium and Diazepam daily for back and leg pain.  He also took Tylenol #3 one to two times per day due to pain of the hips, knees and shoulders.  These medications helped with his pain, but did not completely relieve his back pain.  He did not use any assistive walking device.  His spouse would have to assist with bathing and dressing occasionally during flare-ups.  He had approximately 1 to 11/2 months of incapacitating episodes requiring bedrest by a physician.

On physical examination, the Veteran had a kyphotic posture with a slow and mildly antalgic gait.  Spinal paraspinal spasm was noted.  There was no appreciable weakness of the lower extremities, but he had significant joint pain.  There was no spinal tenderness to palpation.  On trying to stand, the Veteran could stand slowly and deliberately.  The thoracolumbar spine demonstrated flexion to 60 degrees, extension to 10 degrees, bilateral rotation to 20 degrees and bilateral flexion to 20 degrees.  Repetitive testing revealed limitation due to pain but there was no change in range of motion values.  The examiner diagnosed prominent disc desiccation at L5-S1 with disc bulge and mild neural foraminal stenosis as well as radiculopathy by symptoms and MRI.

With regard to the hips, the Veteran described severe bilateral hip pain worse on the right.  His right hip pain was a daily, constant unremitting pain with associated stiffness and weakness.  His left hip was manifested by daily pain.  His bilateral hip pain would occur with rest or exertion, but was particularly worse with walking or standing for any length of time.  He had instability but had not fallen.  He denied redness, swelling, subluxation or dislocation.  For the most part, the Veteran could bathe, groom and dress but he would need occasional assistance from his spouse.  He attempted to limit his activities due to his spine and joint-related issues, and refrained from activities requiring prolonged walking, standing, heavy lifting or repetitive bending. 

On examination, the Veteran's hips showed no edema, heat, redness or instability.  There was guarding with range of motion testing.  The hips demonstrated flexion from 0 to 90 degrees, extension from 0 to 20 degrees, adduction from 0 to 25 degrees, abduction from 0 to 30 degrees, external rotation to approximately 45 degrees, and internal rotation from 30 to 40 degrees.  The limitation in hip motion was due to pain which began at the terminal ranges of motion.  There was no additional limitation of motion with repetitive testing.  The examiner diagnosed bilateral femoral head necrosis status post right femoral head core compression and grafting.

With regards to his knees, the Veteran described daily but not constant pain with daily stiffness and weakness.  He denied swelling, instability, give-way, heat, redness or recurrent subluxation or dislocation.  On examination, the Veteran's right knee demonstrated flexion from 0 to 130 degrees.  The left knee motion was from 0 to 135 degrees.  There was no anterior, posterior, medial or lateral joint instability.  On repetitive testing, there was limitation due to pain which began at the terminal ranges of motion but no additional limitation of motion.  There was no edema, effusion, heat or redness.  The examiner diagnosed mild degeneration of right knee anterior cruciate ligament with bilateral patellofemoral pain syndrome.

By means of rating decision dated August 2007, the RO granted service connection for depressive disorder NOS (claimed as nervous stomach, mental health, panic disorder and agoraphobia) and assigned an initial 30 percent rating.  The RO granted service connection for disc desiccation at L5-S1 with disc bulge, left neural foraminal stenosis and radiculopathy, and assigned an initial 20 percent rating.  The RO granted service connection for bilateral hip and knee disabilities, and assigned separate 10 percent ratings for each joint.  The RO also granted service connection for allergic rhinitis with polyposis and chronic sinusitis, and assigned noncompensable ratings for each disability.

An August 2007 VA orthopedic surgery consultation included the Veteran's report of progressively worsening right hip pain limiting his walking distances with occasional feeling of loss of balance due to pain.  Examination was significant for an antalgic gait, anterior aspect pain on rotation and abduction limited to 60 degrees due to pain.

A September 2007 VA psychiatric consultation included the Veteran's report of severe pain, depressed mood which was becoming overwhelming, isolation, difficulty being around others, impaired energy and motivation, poor sleep with multiple awakenings due to pain, limited appetite with weight loss, poor concentration, anhedonia with poor libido, suicidal thoughts and intrusive memories of traumatic events.  His spouse reported that the Veteran had nightmares and agitation.  On mental status examination, the Veteran was described as casually dressed with appropriate grooming.  He made good eye contact and spoke spontaneously with normal rate and rhythm.  He was free from primary mental abilities (PMA) and psychomotor retardation (PMR).  His mood was "down" and affect was restricted.  He reported occasional passive suicidal ideations.  Concentration was impaired, and short-term and long-term memory recall was slightly impaired.  His insight was fair and judgment was adequate.  The examiner offered a diagnosis of depression due to general medical condition, and assigned a GAF score of 50.

An October 2007 VA psychology consultation indicated that the Veteran reported feelings of purposelessness in an indirect manner, and was overwhelmed by a pain condition which he felt he had no control.

In a statement received in December 2007, the Veteran claimed unemployability due to an inability to function on a day-to-day basis.  He described living in excruciating pain which consumed his existence and kept him tremendously depressed.  He had suicidal ideations to end his chronic pain, extreme anxiety, panic stricken disabilities, daily ideations, fears, relationship challenges, bad moods, lack of motivation and nervous stomach.  He felt that suicide was his only cure.  He described bilateral femoral head deterioration with an updated MRI showing right hip accelerated bone erosion which may lead to a total collapse of the femur.  He described living with dreadful pain when trying to move.  Activities such as getting out of bed, walking or standing caused excruciating pain.  His bilateral knee disability was manifested by symptoms of pain, stiffness and lack of stability to everyday life.  With respect to allergies and sinusitis, the Veteran described an inservice history of five years of allergy related injections which now required daily sprays and pills due to chronic and severe allergies and sinus problems, which included constant bleeding, facial/headaches and being unable to breathe through his nose.

A January 2008 VA psychiatry consultation provided a GAF score of 50.  At a pre-operative physical, the Veteran described feeling numbness in both lower extremities when lying in one position for too long.  A February 2008 VA psychology consultation indicated that the Veteran was having difficulty communicating with his wife and stepdaughters which was resulting in increased distress.  The examiner spent the majority of the session attempting cognitive restructuring of the Veteran's catastrophic thinking regarding upcoming right hip surgery.

On February 19, 2008, the Veteran underwent right hip resurfacing arthroplasty.  Thereafter, the Veteran underwent gait training and range of motion therapy.  He required the use of a walker to assist in ambulation.  

A March 2008 physician statement indicated that the Veteran was unable to walk 200 feet without the assistance of an ambulatory aid, and had a severe limitation in ability to walk.  Another physician statement dated March 2008 opined that the Veteran was not fit for jury duty due to clinical depression and PTSD.  A March 2008 VA psychiatry note provided a GAF score of 40 with the Veteran reporting lack of sleep due to the combination of pain and racing thoughts.

VA psychology and psychiatry notes in April 2008 reported that the Veteran had increasing suicidal thoughts due to severe pain.  He described feeling more frustrated and hopeless following right hip surgery, and had difficulty seeing any improvement.  He had intermittent suicidal thoughts, but had promised to seek help before acting.  His mental status examination was significant for depressed mood, dysphoric but reactive affect, passive suicidal ideations, impaired concentration, fair insight and adequate judgment.  The examiner offered a diagnosis of depression due to general medical condition, severe pain, and assigned a GAF score of 40.

A May 2008 psychiatric note included additional report that the Veteran had very bad anxiety, and had trouble leaving the home unless he took Diazepam.  His wife had reported a worsening of his anger, irritability and patience.  Mental status was essentially unchanged, and the examiner assigned a GAF score of 45.  In the examiner's opinion, the Veteran was totally disabled and unemployable due to his pain, physical restrictions, depression, PTSD and adverse effects of polypharmacy.

A May 2008 orthopedic surgery consultation included the Veteran's report of being very unhappy with the results of his right hip surgery.  He could not bend or put his socks on.  The Veteran had anterior deep hip pain in the lateral and posterior aspects with intermittent posterior lower extremity pain into the foot aggravated by sitting.  He also described popping and dislocation.  He also reported bilateral knee pain.  Examination showed an approximate 70 degrees of active hip flexion and 50 degrees of passive abduction.  He had -4/5 strength of the hamstring muscle and 3/5 flexion strength.  There was tenderness to palpation on adduction and at the quadriceps and hamstring insertion.  Passive rolling of both hips was not painful.

On VA C&P examination dated May 29, 2008, the Veteran described daily severe bilateral knee pain with stiffness, weakness, instability and occasional swelling.  His right knee symptoms were slightly greater on the right.  His knee pain increased from moderate to severe with changes in barometric pressure, which occurred several times per month.  He denied heat, redness, and recurrent dislocation or subluxation.  On examination, the Veteran walked with an extremely antalgic gait and the assistance of a 4-wheel walker.  The right knee demonstrated active and passive motion from -10 to 100 degrees with pain throughout.  The left knee demonstrated active and passive motion from -10 to 120 degrees with pain throughout.  Range of motion for both knees was unchanged with repetitive testing.  For both knees, there was no evidence of anterior cruciate ligament (ACL), posterior cruciate ligament (PCL), medical collateral ligament (MCL) or lateral collateral ligament (LCL) instability.  The examiner diagnosed bilateral patellofemoral pain syndrome.

With regards to his hips, the Veteran complained of severe bilateral hip pain, right greater than left, with instability of gait, pain, stiffness and weakness.  He had daily flare-ups of 9-10/10 pain severity.  He used a 4-wheel walker secondary to gait instability and severe pain.  His activities of daily living were severely limited and he required maximum assistance from his wife with regards to dressing and grooming.  He was unable to perform much in the way of activities of daily living aside from feeding himself.  On examination, the right hip demonstrated active and passive forward flexion from 0 to 40 degrees, extension from 0 to 10 degrees, adduction from 0 to 10 degrees, abduction from 0 to 10 degrees, external rotation from 0 to 10 degrees and internal rotation from 0 to 10 degrees.  The left hip demonstrated active and passive forward flexion from 0 to 80 degrees, extension from 0 to 20 degrees, adduction from 0 to 15 degrees, abduction from 0 to 30 degrees, external rotation from 0 to 20 degrees and internal rotation from 0 to 10 degrees.  Range of motion for both hips was unchanged with repetitive testing.  The examiner diagnosed avascular necrosis of both hips, status post residuals of right hip status post arthroscopic surgery in 2008.

With regards to his spine, the Veteran had daily moderate to severe pain in the lower lumbar paraspinals with radiation down the posterior aspect of the left leg to the left foot.  He had flare-ups several times per month with excessive bending, twisting and use of the lower paraspinal muscles.  He denied incapacitating episodes over the past 12 months.  He described numbness and weakness of the lower extremities with daily generalized weakness secondary to pain and poor sleep quality.  He denied bladder incontinence, but had bowel incontinence on occasion when he was unable to get to the bathroom on time.  On examination, the Veteran had a mild kyphotic posture with no unfavorable ankylosis.  There was tenderness to palpation over the lumbar paraspinal muscles.  The thoracolumbar spine demonstrated active and passive forward flexion from 0 to 30 degrees, extension from 0 to 5 degrees, left lateral flexion from 0 to 5 degrees, right lateral flexion from 0 to 10 degrees, and lateral rotation from 0 to 10 degrees bilaterally.  Range of motion was unchanged with repetitive testing.  On neurologic examination, the Veteran had normal muscle tone and bulk but had extreme sensitivity to passive range of motion testing to check for muscle tone.  His strength testing was unreliable as he had give-way weakness at the hip flexors, knee flexors, knee extensors, distal dorsiflexors, and plantar flexors in the ankle secondary to severe pain.  Reflexes were 2+ and symmetrical.  There was mildly diminished sensation distally in a stocking glove distribution in the lower extremities to pain and temperature.  Sensation was intact for vibration and proprioception.  Laseque sign was negative bilaterally.  The examiner diagnosed lumbar degenerative disc disease.

The VA examiner indicated that the Veteran's medications included Valium 5 mg. one to three tablets per day for anxiety and pain, Tylenol #3 one to two tablets every 4 to 6 hours as needed for pain, methadone 5 mg. one to three tablets per day as needed for severe headaches and body pain, Fioricet one to two tablets every 4-6 hours as needed for pain, promethazine 25 mg. as needed for pain and nausea, Zomig as needed, Imitrex as needed and Depakote extended release 500 mg. twice a day.  The examiner also opined that the Veteran was currently unable to work due to significant pain.  It was also indicated that, unless otherwise specified, the range of motion values were unchanged with repetitive testing due to pain, fatigue, weakness or incoordination.

A written statement from the Veteran received in May 2008 included his description of being horrifically depressed and wishing to end his life with suicide.  He described an inability to think right with anxiety and panic attacks which were destroying his daily life.  He had at least 3 panic attacks per day, and sometimes could not leave his room or house for days and weeks.  The Veteran had associated symptoms of vomiting, sweating and breaking down.  He described additional symptoms of severe frustration, rapid temper and rage.  He had memory loss which included forgetting simple chores.  He could not maintain a continuous train of thought, and could not retain information.  He was undergoing counseling with his wife.

With respect to his orthopedic disabilities, the Veteran described a worsening of pain since his right hip surgery.  He had no instability, and was unable to dress or bathe below his waist.  His knees were manifested by extreme pain and stiffness.  He described horrible lumbar spine pain with stiffness.  He had 3-5 days a week wherein he could not straighten up as well as some days where he could not bend forward at all.  He took daily medications for his sinuses and suffered from bleeding, pus and headaches.  He recalled being advised on his retirement physical that he had polyps resurfacing in his nasal passages which required medical supervision.

The Veteran also included statements from his wife wherein she described the Veteran as being in excruciating pain.  The Veteran had awful pain on the inside of his upper thigh in the area of his hip surgery, and had nerve damage spasms from his lower back down through his buttocks.  He cried at night during his sleep.  He was unable to drive more than 10-15 miles.

At that time, the Veteran also included copies of his daily journal describing severe joint pain, anxiety, panic, nervousness, lack of sleep and suicidal thoughts.

A June 2008 VA physical therapy consultation measured passive right hip motion to 45 degrees of external rotation with 2/5 strength, internal rotation to 15 degrees with 1/5 strength, hip adduction strength of 3/5 and abduction strength of 3/5.

A June 2008 VA psychology note included an impression that the Veteran's depressive symptoms were likely increasing in severity.  A GAF score of 45 was provided in July 2008.  A July 2008 x-ray examination of the right hip indicated that the partial right hip arthroplasty appeared to be in satisfactory position and well-seated.

By means of a rating decision dated July 2008, the RO assigned a 100 percent temporary convalescence rating for right hip disability effective from February 19, 2008 to March 31, 2009.  A prospective 30 percent rating was assigned effective April 1, 2009.  The RO also awarded entitlement to TDIU, and special monthly compensation based on housebound criteria effective from February 19, 2008 to March 31, 2009.

An August 2008 statement from the Veteran and his wife described a dramatic worsening of his quality of life.  It had taken him two days to get out of bed with the assistance of his wife and medications just to write his statement.  The Veteran's wife had to assist him with washing and dressing.  

An August 2008 VA orthopedic surgery consultation included the Veteran's report of right hip popping associated with mild pain.  Psychiatry and psychology notes in September 2008 provided GAF scores from 45-50.  At that time, the Veteran described "bad" depression, anxiety as "freaking out," vague suicidal thoughts, uncontrolled pain, marital strain and significant depression.

In a statement received in October 2008, the Veteran described feeling considerably more right hip pain following his surgery with additional symptoms of restrictiveness and popping which generated noises from the surgical site.  His only alternative treatment involved a total hip replacement.  He further described being chronically depressed, unable to sleep and not living a day without suicidal thoughts.  His anxiety and panic disorder prevented from going outside and socializing.

The Veteran's GAF score remained unchanged in December 2008 and January 2009.  A January 2009 VA orthopedic surgery progress noted reflected the Veteran's report of an inability to get on or off the toilet, or walk more than 40 feet without a walker, due to his right hip disability.  The Veteran described internal hip popping.  Examination showed passive internal rotation to 20 degrees with external rotation to 10 degrees.  The examiner offered an assessment of painful right hip resurfacing and trochanteric bursitis.  A bone scan in February 2009 showed no loosening or fracture in the right hip prosthesis.  A July 2009 orthopedic surgery consultation measured right hip flexion to 110 degrees, internal rotation to 15 degrees and external rotation to 20 degrees.  The right knee demonstrated motion from 0 to 125 degrees.  A December 2009 VA psychology note reflected a GAF score of 55.  The Veteran described marital conflict and depressive symptoms which included depressed mood, sleep disturbance, anhedonia, guilt/worthlessness, concentration problems, appetite fluctuation and psychomotor disturbance.

Thereafter, VA psychology notes reflect GAF scores of 50, 55 and 57 in February, March and April 2010, respectively.  In March 2010, the Veteran underwent right hip arthrogram with injection of lidocaine, Marcaine and Depo-Medrol.

An April 2010 orthopedic surgery consultation included the Veteran's report of a sharp, shooting pain in the inguinal region as well as a deep, constant grinding right hip pain with popping.  Examination was significant for antalgic gait on the right and the greater trochanter being mildly tender to touch.  Right hip motion was functional but painful with internal and external rotation.  The Veteran was offered the surgical option of revision to a total hip arthroplasty (THA).

VA psychiatry notes in May 2010 reflect GAF scores of 50 and 57.  In June 2010, the Veteran had positive PTSD and depression screens with his level of depression described as moderate to severe.  He had continued suicidal ideations without intent or plan.  His mood fluctuated based upon situational and family stressors as well as chronic pain, continued depression and PTSD.  On mental status examination, the Veteran's grooming was described as adequate, and appearance was within normal limits.  Affect was constricted with reactivity.  Mood was neutral.  Speech was linear, goal-directed and normal in rate, tone and prosody.  There were no perceptual disturbances or delusional thinking.  Insight and judgment were adequate.  Memory was adequate and grossly intact.  The Veteran's depressive symptoms waxed and waned.  The examiner offered diagnoses of major depressive disorder, recurrent, severe without psychosis and PTSD.  A GAF score of 57 was assigned.

A July 7, 2010 VA neuropsychology consultation indicated that the Veteran was alert, oriented and fully cooperative.  His mood and affect were depressed, but he denied current suicidal ideation.  The evaluation found deficits in processing speed, variable attention difficulties and diminished semantic fluency which was likely impacted more by speed component than true language deficit.  There was mild retrieval deficit noted on auditory memory/learning tasks.  Severe depression and anxiety was supported by psychological testing.  However, all other neurocognitive domains tested were within normal limits.  The findings contraindicated the presence of neurodegenerative dementia, and the primary factors were judged to be psychological distress including severe depression and severe anxiety.  Chronic pain, sleep difficulties and possible adverse effects of medications could also be contributing factors.

On July 10, 2010, the Veteran's spouse contacted VA to express concerns about the Veteran's behavior at a retirement ceremony wherein he had difficulty remembering the names of his grandchildren, and was found crying in a corner.  On July 26, 2010, the Veteran called to speak to the psychologist wherein he described suicidal ideations without intent or plan.  He was tearful throughout the conversation but also remained logical with a problem solving orientation.  Overall, he presented as depressed but not in a crisis state.  On July 30, 2010, a VA examiner assigned a GAF score of 50.  The Veteran's grooming was described as "fair" and unshaven.  A subsequent pain assessment evaluation reported the Veteran's overall pain level as 9/10 severity due to migraines, right hip, lower back, muscle and joint pains which interfered with general activity, mood, walking ability, relations with other people, sleeplessness, confusion, enjoyment of life and eating.  

At a Board hearing in July 2010, the Veteran's spouse testified that the Veteran avoided interaction with other people, and needed medication just to interact at family functions.  His Valium prescription had been raised from 3 to 4 tablets per day.  He had suicidal ideations, and his wife had co-workers stop by the house in the daytime to check up on the Veteran.  His spouse testified to his increased memory loss.  She recalled one instance where the Veteran could not remember his grandchildren's names.  His physician had excused him from jury duty due to mental incompetence.  The Veteran's right hip disability had worsened since his last surgery.  He used a walker due to instability and he could not walk for a long time without resting.  He had experienced falling episodes.  He was unable to sit without his right leg being out.  The Veteran's wife helped him with toileting and dressing.  He had limited mobility due to his joint pains, and experienced symptoms of popping, stiffness and weakness.  He had been issued a disability certificate from the Department of Motor vehicles.  With respect to his rhinitis and sinusitis, the Veteran asserted that he had minor nasal polyps.  He used Flunisolide nasal spray everyday and Loratadine.  If he did not take his medications, he would experience unstoppable mucus, bleeding and blockage.  

Psychiatric visitations in August and September 2010 reflected no significant changes in the Veteran's mental status.  A GAF score of 58 was provided for each visit.  An October 2010 VA psychiatric consultation included the Veteran's report of having a bad physical week with severe pain, which had adversely affected his mood and PTSD symptoms.  He endorsed symptoms of dysphoria, concentration and attention difficulties, anhedonia, fatigue and irritability.  There were no significant changes in the Veteran's mental status, and a GAF score of 45 was assigned.  

An October 2010 orthopedic surgery consultation reflected the Veteran's report of severe, debilitating right hip pain.  He experienced this pain at rest, with weightbearing or any hip motion.  He described having a poor quality of life, and requested an amputation.  He had obtained only temporary relief with an intraarticular injection.  Examination demonstrated significant pain and guarding with any hip range of motion.  Hip flexion, extension, external rotation and internal rotation were limited due to pain.  The Veteran had a significant antalgic gait, and was walker dependent.  The orthopedic surgeon provided an assessment that the Veteran's right acetabular cartilage had worn significantly following his femoral head resurfacing, which was a known but rare and unpredictable surgical complication.  It was thought that the Veteran may benefit from a total right hip arthroplasty.

From November 2010 to January 2011, VA psychiatry and psychology notes assigned the Veteran GAF scores of 58, 58 and 47.  One examiner noted that the Veteran's depression was not considered severe.  A February 2011 VA psychiatry note provided a GAF score of 58.  The Veteran continued to have ego dystonic suicidal thoughts, but no acute suicidal ideation, intent or plan.  He endorsed PTSD symptoms of repeated disturbing thoughts and dreams of stressor events, reliving stressor events, feeling very upset and having physical reactions with reminders of events, avoidance, difficulty remembering, anhedonia, feeling emotionally distant and numb, having a foreshortened sense of future, sleep difficulty, irritability, anger outbursts, concentration difficulty, hypervigilance and easy startle response.  He had an improvement of depressive symptoms with use of Cymbalta and mirtazapine.

On VA C&P examination in April 2011, the Veteran generally described an inability to stand for more than a few minutes, or walk for more than a few yards.  He always used either a cane or walker for ambulation assistance.  The Veteran was noted to walk with an antalgic gait with no other evidence of abnormal weight bearing.  It was also noted that examination of the Veteran was limited due to his guarding of movements.  The Veteran's subjective complaints, in the examiner's opinion, were out of proportion to objective examination findings.  It was felt that the Veteran demonstrated poor effort.  He also failed to report for left knee x-ray study.

The Veteran reported bilateral knee symptoms of pain, stiffness, weakness, incoordination, and decreased speed of joint motion.  He denied deformity, give-way, instability, episodes of dislocation or subluxation, locking episodes or effusion.  He described severe flare-ups of right knee pain, precipitated by overuse, which occurred every 2 to 3 weeks and lasted for hours in duration.  On examination, the Veteran had bilateral knee motion from 0 to 130 degrees absent objective evidence of pain following repetitive motion, or additional limitations after repetitive testing.

With respect to the left hip, the Veteran endorsed symptoms of deformity, give-way, instability, pain, weakness, incoordination, and decreased speed of joint motion.  He denied stiffness, episodes of dislocation or subluxation, locking episodes, effusions, symptoms of inflammation or flare-ups.  On examination, the Veteran's left hip demonstrated active flexion from 0 to 100 degrees, extension from 0 to 30 degrees, abduction from 0 to 45 degrees, adduction from 0 to 25 degrees, internal rotation from 0 to 40 degrees and external rotation from 0 to 40 degrees.  The Veteran could cross his legs, and toe out greater than 15 degrees.

With respect to the right hip, the Veteran reported symptoms of deformity, give-way, instability, pain, stiffness, weakness, incoordination, decreased speed of joint motion and symptoms of inflammation such as warmth, redness, swelling and tenderness.  He denied episodes of dislocation or subluxation, locking episodes, or effusions.  He described moderate flare-ups of right hip pain, precipitated by overuse, which occurred every 2 to 3 weeks and lasted for hours in duration.  On examination, the Veteran refused range of motion testing for flexion, internal rotation and external rotation.  There was active extension from 0 to 30 degrees, abduction from 0 to 40 degrees, and adduction from 0 to 25 degrees.  The Veteran could cross his legs, and toe out greater than 15 degrees.  A July 2010 x-ray was interpreted as showing a total hip arthroplasty in place with normal alignment, and no hardware failure or loosening.  

The VA examiner opined that the Veteran's orthopedic disabilities prevented him from performing activities of daily living such as chores, shopping, exercise, sports, recreation, traveling, feeding, bathing, dressing, toileting and grooming.  The Veteran reported that his wife helped him with almost all activities of daily living.

On VA mental disorders examination in April 2011, the Veteran reported a daily depressed mood with a desire not to be alive.  He described difficulty arising from bed with frequent irritability and sleep impairment.  He described his symptoms as worsening, which the examiner found to be discrepant from recent treatment note updates.  On examination, the Veteran was described as casually dressed.  His psychomotor activity was lethargic.  He displayed a child-like behavior with his wife upon leaving her in the waiting room.  He reported feeling anxious, but did not seem anxious.  He appeared rather down with a frown upon his face.  His mood was anxious and depressed.  He was fully oriented with intact attention.  Thought process was unremarkable.  His thought content was described as reporting symptoms out of proportion to objective findings and inconsistent with recent treatment notes.  There were no delusions, inappropriate behavior, homicidal thoughts, suicidal thoughts, impairment of impulse control, violent behavior or obsessive/ritualistic behavior.  The Veteran's judgment and insight were intact.  He interpreted proverbs appropriately.  The Veteran described panic attacks, manifested by feeling hot, sweaty and nauseous with a need to escape and impending death, which occurred about once per week.  He was able to maintain minimum personal hygiene, and had no problems with activities of daily living.  The Veteran described an improvement of family relations with a vacation upcoming.  He had no interest in being around friends.  Memory was described as normal, although the Veteran could not recall 3 items after several minutes.  The Veteran reported that his wife reminded him to do certain things.

The examiner offered diagnoses of major depressive disorder and panic disorder, which were in two separate categories of mental disorders under DSM-IV.  The panic disorder symptoms included acute anxiety with physiological arousal and avoidance behaviors, and his depressive symptoms included depressed mood, hopelessness, sleep impairment and social withdrawal.  The examiner offered a GAF score of 60 for major depressive disorder which resulted in reduced reliability and productivity, but did not result in deficiencies in areas such as judgment, thinking, family relations, work, mood or school.  The examiner also offered the following summary:

His service connected Major Depressive Disorder ALONE limits his reliability and productivity due to sleep impairment, concentration decline, low motivation and social withdrawal.  He may not be able to cope with task demands of employment however may be able to perform limited tasks with the ability for flexibility in terms of schedule.

The fact his treatment notes indicate that he will be putting off therapy to take a 3 week vacation (alone) suggests his functioning is better than he portrays behaviorally both in the waiting room and in the exam room.  His subjective report of symptoms is out of proportion with objective findings.

On VA spine examination in April 2011, the Veteran described constant, severe lower back midline pain with pressure with intermittent spasms.  He endorsed additional symptoms of fatigue, decreased motion, stiffness, weakness and spasm.  He had flare-ups, precipitated by overuse, which occurred every 1 to 2 months, and lasted 1 to 2 days in duration.  He had pain radiation, described as shooting electric shock for seconds then numbing pain, to the right side of his thigh and calf to the foot.  He denied urinary or bowel abnormalities.  On examination, the Veteran's thoracolumbar spine demonstrated normal posture, head position and symmetry.  There was no abnormal spinal contour.  The thoracolumbar sacrospinalis was negative for spasm, atrophy, guarding, pain with motion, tenderness or weakness.  There was active thoracolumbar flexion from 0 to 90 degrees, lateral flexion from 0 to 30 degrees bilaterally, and lateral rotation from 0 to 30 degrees bilaterally.  There was no objective evidence of pain following repetitive motion, or additional loss of motion following repetitive testing.  Reflex and sensory examinations were normal.  There was 5/5 motor strength in the lower extremities.  An August 2010 x-ray examination was reported as showing prominent disc space narrowing at L5-S1 level with associated discogenic sclerosis.  The examiner found no evidence of radiculopathy on examination.  The VA examiner opined that the Veteran's thoracolumbar spine disability prevented him from performing activities of daily living such as sports and traveling, and severely affected activities such as chores, shopping, exercise, recreation, feeding, bathing, dressing, toileting and grooming.  The Veteran reported that he could not differentiate the effect of his spine condition from his other disorders.

On VA sinus examination in April 2011, the Veteran described a history of at least 5-6 episodes of sinusitis requiring antibiotic treatment since his last VA examination in 2007.  He denied incapacitating episodes of sinusitis, and reported 5 episodes of sinusitis per year which lasted 1 to 2 days in duration.  He described his sinus disorder as intermittent with remissions.  His symptoms included nasal congestion, excess nasal mucous, itchy nose and watery eyes.  He further described constant breathing difficulty with hoarse speech.  His current treatment included Flunisolide inhalant and Allegra.  On examination, there was a 20 percent obstruction of the left nasal passage and a 30 percent obstruction of the right nasal passage.  There were no nasal polyps, permanent turbinate atrophy, rhinoscleroma, tissue loss, scarring, deformity, or evidence of Wegener's granulomatosis or granulomatous infection.  The Veteran had a deviated nasal septum to the right which was deemed a normal variant.  There was normal breathing through the nose with clear nasal secretion.  There was no watering of the eyes.  An x-ray examination in October 2010 was interpreted as showing hypoplasia of the frontal sinuses which was deemed a normal anatomic variation but was otherwise unremarkable.  The VA examiner opined that the Veteran's respiratory disability prevented him from performing activities of daily living such as sports and traveling, and severely affected activities such as chores, shopping, exercise, recreation, feeding, bathing, dressing, toileting and grooming.  The Veteran reported that he could not differentiate the effect of his spine condition from his other disorders.

In an addendum dated May 2011, the VA examiner opined that there was no clinical evidence that any of the Veteran's disorders had deteriorated/increased in severity since 2007.



Depressive disorder

Applying the criteria to the facts of this case, the Board finds that the criteria for an initial 70 percent rating, but no higher, is warranted for the entire appeal period.  In this respect, the credible lay and medical evidence demonstrates that the Veteran's service-connected depressive disorder has more nearly approximated occupational and social impairment with deficiencies in areas such as work, family relations, thinking and mood due to symptoms of pervasive suicidal thoughts, near-continuous panic or depression affecting the ability to function independently, neurocognitive slowing, and difficulty in adapting to stressful circumstances. 

At the outset, the Board observes that there is some variability regarding the extent and severity of symptoms reported by the Veteran for different times during the appeal period.  For instance, in his statements received in March and April 2007, the Veteran described full-blown panic attacks and severe psychiatric symptoms which rendered him unable to function "on too many days."  On VA C&P examination in July 2007, he denied significant anxiety and reported that his depression remitted when active.  He was next seen in September 2007 reporting a depressed mood which was overwhelming with mental status examination demonstrating impairment of concentration and memory.

The examiner assessments of the Veteran's overall psychological, social and occupational functioning was essentially assessed as mild in July 2007 (GAF 67) and serious in September 2007 (GAF 50).  The Veteran's next two GAF scores were 50 in January 2008 and 40 in March 2008.  As instructed in 38 C.F.R. § 4.126(a), the Board must take a wholistic view of the entire record taking into account the length of periods of remission and not providing an evaluation solely at the particular level of disability at the moment of examination.  

The evidence in this case reflects that, since the inception of this appeal, the Veteran's depressive disorder has resulted in disturbances of mood, affect and motivation.  Of importance, the Veteran has had pervasive suicidal thoughts throughout the appeal which is an example of symptomatology supporting a 70 percent rating under DC 9434.

Additionally, the Veteran and his spouse have consistently described the Veteran has having anxiety/panic attacks with any public event, and episodes of overwhelming depression and anxiety to the extent he cannot leave the household for many days at a time.  The panic attacks were first reported during active service, and an inability to function on "too many days" was reported when the Veteran first filed his claim.  Notably, a VA examiner in 2011 found that the panic symptoms were not considered part of depressive disorder symptoms under DSM-IV.  While this is correct, the Board observes that the Veteran was diagnosed with panic disorder with agoraphobia during service in October 1997.  He is clearly service-connected for this symptomatology, however diagnosed.  The symptomatology described by the Veteran and his wife is deemed credible, and is another one of the examples of symptomatology which support a 70 percent rating under DC 9434.

The Board also notes that there are several opinions that the Veteran is totally disabled and unemployable, in part, due to his service-connected psychiatric disability.  There is also evidence of marital discord due to communication difficulties and mood impairment.  Thus, the evidence demonstrates that the Veteran's service-connected depressive disorder causes occupational and social impairment with deficiencies in areas such as work and family relations.

The Board must also consider the numerous assessments of the Veteran's overall psychological, social and occupational functioning as expressed in GAF scores.  During the appeal, the Veteran's GAF scores have ranged from 40 to 67.  Notably, the VA clinicians have commented that the severity of the Veteran's symptomatology varies with the degree of his situational stressors.  The GAF of 40, which is consistent with major impairment in several areas such as work, family relations, judgment, thinking and mood, tends to favor the award of a 70 percent rating under DC 9434.  

As noted above, the Board must consider all GAF scores in the context of the frequency, severity and duration of psychiatric symptoms, the length of remission and capacity of the Veteran to adjust.  See 38 C.F.R. § 4.26.  For the entire appeal period, the Veteran has not worked and has not been challenged in a work-like setting.  The Board is of the opinion that his GAF score of 40 is the most likely indicator of his ability to respond to an occupational setting.

In light of the above, the Board finds that the Veteran meets some of the criteria for a 70 percent rating under DC 9434.  While recognizing the original GAF score of 67 in July 2007, the Board cannot determine on this record that the symptomatology which led to the GAF score of 50 in September 2007 and GAF score of 40 as early as March 2008 has appreciably changed.  By applying the approximating rules of 38 C.F.R. § 4.7 and the benefit of the doubt standard of 38 U.S.C.A. § 5107(b), the Board finds that the Veteran's service-connected depressive disorder has more nearly approximated the criteria for occupational and social impairment with deficiencies in areas such as work, family relations, thinking and mood due to symptoms of pervasive suicidal thoughts, near-continuous panic or depression affecting the ability to function independently, neurocognitive slowing and difficulty in adapting to stressful circumstances for the entire appeal period.  To this extent only, the appeal is granted.

The Board further finds that the preponderance of the evidence establishes that the criteria for a 100 percent rating under DC 9434 have not been met for any time during the appeal period.  In this respect, the Veteran has not shown any gross impairment of thought processes or communication, or persistent delusions or hallucinations.  His mental status examinations in the clinical setting and during formal examinations have shown essentially normal speech and he has consistently denied having any delusions or hallucinations.  There has also been no evidence of grossly inappropriate behavior.

The Board further finds that the Veteran has not demonstrated being a persistent danger to others.  He has voiced suicidal thoughts throughout the appeal period, but has denied any intent or plan.  He has been evaluated as being a low-risk for suicide.  He denies homicidal thoughts.  

The Veteran has difficulty being able to perform activities of daily living due, in part, to his orthopedic limitations, panic attacks and mood fluctuations.  The Veteran has appeared unshaven at times, but has otherwise been described as capable of minimal hygiene.  On two occasions the Veteran has forgotten the names of his grandchildren, but his memory deficits are not so severe to result in total occupational and social impairment.  A neuropsychiatry consultation in July 2010 essentially showed a slowing of cognitive functioning and mild retrieval deficit.  The VA examination in April 2011 nevertheless showed memory deficits only of being unable to recall 3 items after several minutes.

Again, the Board must also consider numerous assessments of the Veteran's overall psychological, social and occupational functioning during the appeal period as expressed in GAF scores ranging from 40 to 67.  The GAF of 40 represents less than total impairment of occupational and social functioning, and the higher evaluations (which are more frequent) clearly do not support awarding a 100 percent rating under DC 9434.

Taking into account all of these factors, the Board finds that the Veteran does not meet, or more nearly approximate, the criteria for a 100 percent rating under DC 9434 for any time during the appeal period.  In so finding, the Board has found that the descriptions of symptomatology and limitations provided by the Veteran and his spouse are credible and consistent with the evidentiary record.  The severity of the overall disability has been established by a 70 percent schedular rating under DC 9434, and a TDIU rating under 38 C.F.R. § 4.16(a).  To the extent that they argue entitlement to a 100 percent rating under DC 9434, the Board places greater probative weight to the findings and opinions of the VA medical examiners who have greater expertise and training than the Veteran and his spouse in evaluating the nature and severity of an acquired psychiatric disorder.  There is no further doubt of material fact to be resolved in the Veteran's favor.  38 U.S.C.A. § 5107(b).

Thoracolumbar spine disability

Applying the criteria to the fact of this case, the Board finds that the criteria for an initial 40 percent rating, but no higher, is warranted for the chronic orthopedic manifestations of thoracolumbar spine disability beginning on May 15, 2008.  In this respect, the credible lay and medical evidence demonstrates that, prior to May 15, 2008, the Veteran's chronic orthopedic manifestations of service-connected thoracolumbar spine disability were demonstrated by forward flexion to 60 degrees and a combined range of motion of 150 degrees even when considering functional impairment on use.  On May 15, 2008, the Veteran's chronic orthopedic manifestations of service-connected thoracolumbar spine disability were shown to result in forward flexion limited to 30 degrees absent ankylosis.

Additionally, a separate 10 percent rating is warranted for the chronic neurologic thoracolumbar spine manifestation of S1 radiculopathy of the left lower extremity for the entire appeal period.

With respect to the chronic orthopedic manifestations of thoracolumbar spine disability, the Veteran's initial VA examination in July 2007 demonstrated thoracolumbar spine forward flexion to 60 degrees with a combined range of motion of 150 degrees.  These findings fall well short of the criteria for the next higher 40 percent rating under the General Rating Formula for Diseases and Injuries of the Spine.

The Board must also consider functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45.  In July 2007, the Veteran described constant low back pain with stiffness.  He had flares of disability precipitated by standing or walking for prolonged periods of time.  He described an inability to move each day without taking medications.  These complaints are consistent with the entire evidentiary record.

However, even when considering these functional limitations, the Board finds no lay or medical evidence that his thoracolumbar spine disability met, or more nearly approximated, forward flexion limited to 30 degrees or less.  Notably, the Veteran himself did not describe limitation of thoracolumbar spine motion in terms of degrees.  Additionally, on VA examination in July 2007, the VA examiner specifically found no additional range of motion loss with repetitive testing.  Thus, even with consideration of the provisions of 38 C.F.R. §§ 4.40 and 4.45, the lay report and clinical findings fall well short of the criteria for the next higher 40 percent rating under the General Rating Formula for Diseases and Injuries of the Spine.

However, on May 29, 2008, the Veteran underwent VA examination wherein thoracolumbar spine motion was limited to 30 degrees of forward flexion.  This clinical finding meets the criteria for a 40 percent rating under the General Rating Formula for Diseases and Injuries of the Spine.  The record includes a May 15, 2008 orthopedic consultation wherein the Veteran described an inability to bend or put his socks on.  The Board finds that this statement is consistent with the clinical finding presented on May 29, 2008.  Thus, applying the benefit of the doubt, the Board finds that the Veteran's limitation of thoracolumbar spine motion to 30 degrees of forward flexion was first described on May 15, 2008.  The Board can find no combination of lay or medical evidence prior to this time from which it can be factually ascertained that this extent of motion loss occurred prior to May 15, 2008.

The criteria for a higher rating still requires thoracolumbar spine ankylosis.  The clinical findings of record have demonstrated active motion of the thoracolumbar spine, and there is no clinical evidence of fixation of flexion or extension.  The Veteran, while describing some instances of being unable to bend forward, does not describe a chronic fixation of flexion or extension of the thoracolumbar spinal segment.  Additionally, a May 2007 neurology consultation referred to a "fused tendon" in the thoracic nerve muscles without further explanation.  This examiner did not refer to an ankylosis of the vertebral column, as contemplated in Note 5 of the General Formula for Rating Diseases and Injuries of the Spine.  Thus, a higher disability rating is not warranted for the chronic orthopedic manifestations of thoracolumbar spine disability. 

Per the IVDS criteria, the Board may award a separate rating for the chronic neurologic manifestations of thoracolumbar spine disability.  In service, a December 2006 private neurosurgeon diagnosed degenerative disc disease at L5-S1 with sensory radiculopathy involving the left lower extremity.  When filing his service connection claim, the Veteran described left lower extremity pain with paresthesia in the left foot.  The initial VA examination in July 2007, which included the Veteran's complaints of shooting pain and numbness of his left lower extremity, diagnosed radiculopathy by symptoms and MRI examination.  Thus, the Veteran is deemed to have a chronic neurologic manifestation of left lower extremity radiculopathy.

The clinical findings for the Veteran's left lower extremity radiculopathy have been significant only for clinical findings of mildly diminished sensation to pain and temperature with give-way weakness due to pain.  Otherwise, there is no lay or medical evidence of trophic changes, muscle atrophy or significant loss of motor function.  The VA examiner in April 2011 found 5/5 strength of the left lower extremity.  Overall, the Veteran's left lower radiculopathy more closely approximates mild incomplete paralysis of the sciatic nerve with sensory disturbance only.  Thus, a separate 10 percent rating under DC 8720 for neuralgia of the sciatic nerve, and no higher, is warranted.

The record reflects one occasion in January 2008 wherein the Veteran reported right lower extremity numbness when lying in one position for too long.  A May 2008 VA examination included a finding of mildly diminished sensation to pain and temperature with give-way weakness due to pain which has not been replicated on any other examination.  The VA examiner in 2011 specifically found no evidence of right lower extremity radiculopathy on examination as there were no sensory, reflex or motor abnormalities.  On this record, the Board finds that the Veteran does not manifest a chronic neurologic disability of the right lower extremity.

In so finding, the Board is aware that the Veteran has reported on occasion shooting pain and numbness symptoms of both lower extremities.  The Board finds no reason to doubt the Veteran's testimony.  However, the Board places greater probative weight to the VA clinician findings as to whether those complaints warrant a diagnosis of lower extremity radiculopathy as these physicians have greater expertise and training than the Veteran (or his spouse) in diagnosing neurologic abnormalities.   

The Board also recognizes that, on one occasion in May 2008, the Veteran described bladder incontinence as an inability to get to the bathroom on time.  He did not claim any rectal dysfunction, and denied any bladder or bowel complaints on VA examination in April 2011.  There is no clinical assessment of any bladder or bowel incontinence.  As such, the Board finds that there is no basis for any other separate ratings for the chronic neurologic manifestations of thoracolumbar spine disability. 

Finally, the Board may consider whether a higher rating still is warranted for based upon the frequency and duration of incapacitating IVDS episodes.  On VA examination in July 2007, the Veteran described approximately 1 to 11/2 months of incapacitating IVDS episodes in the prior year (which would include active duty service which may not be considered for compensation purposes).  Otherwise, on subsequent examinations, the Veteran denied incapacitating IVDS episodes.

The criteria of DC 5243 specifically states that an incapacitating episode of IVDS requires bed rest prescribed by a physician and treatment by a physician.  On this record, the Board can find no instances of at least 6 weeks or more of incapacitating IVDS episodes which required bed rest prescribed by a physician and treatment by a physician as required by regulation.  The Veteran's recollections in this case are not supported by the documentary evidence of record.

Bilateral knee disabilities

Applying the criteria to the facts of this case, the Board finds that the criteria for initial ratings in excess of 10 percent for service-connected right and left knee disabilities have not been met for any time during the appeal period.  In this respect, the credible lay and medical evidence demonstrates that the Veteran's service-connected right knee degenerative disease of the anterior cruciate ligament with patellofemoral pain syndrome results in painful but noncompensable limitation of motion even when considering functional impairment on use.  Likewise, his service-connected left knee patellofemoral pain syndrome as results in painful but noncompensable limitation of motion even when considering functional impairment on use.  Moreover, neither knee disabilities results in ankylosis, instability or subluxation, dislocated or removed semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum.

With respect to bilateral knee motion, the Veteran has demonstrated right knee motion from 0 to 130 degrees (VA C&P examination dated July 2007), -10 to 100 degrees (VA C&P examination dated May 2008), 0 to 125 degrees (VA clinical record dated July 2009), and 0 to 130 degrees (VA C&P examination dated April 2011).  He has demonstrated left knee motion from 0 to 135 degrees (VA C&P examination dated July 2007), -10 to 120 degrees (VA C&P examination dated May 2008) and 0 to 130 degrees (VA C&P examination dated April 2011).  The VA clinical records do not further describe limitation of motion in terms of degrees of motion lost.

Overall, the clinical findings of record provide highly probative evidence against a compensable rating for the right or left knee disability based upon limitation of motion under DCs 5260 and/or 5261, showing right knee motion of at least -10 to 100 degrees and left knee motion of at least -10 to 120 degrees.  The VA clinical records provide no direct evidence in support of the claim, and the Veteran himself has not expressed motion loss in terms of degrees.

With respect to bilateral knee instability, VA C&P examination in July 2007 found no anterior, posterior, medial or lateral joint instability.  Similarly, VA C&P examination in May 2008 found no evidence of ACL, PCL, MCL or LCL instability.  On VA C&P examination in April 2011, the Veteran himself denied give-way, instability, or episodes of dislocation or subluxation.  The available VA clinical records reflect that the Veteran has been issued a 4-wheel walker due to his right hip disability.  However, these records do not include any clinical description of right or left knee instability during the appeal period.

Overall, the clinical findings of record provide strong evidence against a separate rating based upon instability under DC 5257 for either knee, failing to show any clinical evidence of right or left knee instability or subluxation.  The Board finds that the clinical findings of VA clinicians of no right or left knee instability hold greater probative weight than the Veteran's subjective perceptions, as these examiners possess greater training and expertise than the Veteran and his spouse in evaluating knee instability or subluxation.

The Board also finds no basis to award a rating greater than 10 percent for right and/or left knee disabilities based upon functional loss due to pain, weakness, fatigability, or incoordination.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca, 8 Vet. App. at 204-08 (1995).  In this case, the Veteran describes extreme bilateral knee pain, stiffness, weakness, incoordination, decreased speed of joint motion, uncomfortability, lack of stability and occasional swelling.  He reports that his symptoms are aggravated by barometric temperature changes or overuse which occur several times per month.  

The July 2007 VA examiner found that bilateral knee pain began at the terminal ranges of motion, but that there was no additional motion loss with repetitive testing.  The May 2008 VA examiner found pain throughout bilateral knee motion, but no additional motion loss with repetitive testing.  This examiner also measured hyperextension of 10 degrees.  The VA examiner in April 2011 found no objective evidence of painful motion or additional limitations after repetitive testing.

Notably, the Veteran has already been assigned separate 10 percent ratings based upon painful but noncompensable motion loss of the right knee under DC "5260-5014," which contemplates symptomatic osteomalacia with noncompensable motion loss.  On this record, the Board finds that the specific clinical findings by the VA examiners fall well short of meeting, or more nearly approximating, the criteria for compensable motion loss under DCs 5260 and 5261.  The Veteran himself does not specifically describe motion loss comparable to flexion limited to 45 degrees or extension limited to 10 degrees.  As such, further compensation is not warranted with consideration of the provisions of 38 C.F.R. §§ 4.40 and 4.45.

As noted above, there is no lay or medical evidence of ankylosis, dislocated semilunar cartilage, symptomatic removal of semilunar cartilage, impairment of the tibia and fibula or genu recurvatum.  As such, the criteria of DCs 5256, 5258, 5259, 5262 and 5263 are not for application.

In so holding, the Board has carefully considered the symptomatology and functional limitations voiced by the Veteran and his spouse.  However, the Board has placed greater probative weight to the actual clinical findings of the VA clinicians who have greater expertise and training than the Veteran and his spouse in evaluating the nature and severity of the Veteran's bilateral knee disability.  There is no doubt of material fact to be resolved in the Veteran's favor.  38 U.S.C.A. § 5107(b).

Bilateral hip disabilities 

Applying the criteria to the facts of this case, the Board finds that the criteria for an initial rating greater than 10 percent for left hip disability have not been met for any time during the appeal period.  In this respect, the credible lay and medical evidence demonstrates left hip disability manifested by painful but noncompensable motion loss even when considering functional impairment on use.

With respect to the right hip disability, the Board also finds that, for the time period from May 1, 2007 to February 19, 2008, the criteria for an initial rating greater than 10 percent for right hip disability were not met as the credible lay and medical evidence demonstrates right hip disability manifested by painful but noncompensable motion loss even when considering functional impairment on use.

However, for the time period beginning on April 1, 2009 (the period of time following a 100 percent rating following placement of prosthetic device), the Board finds that the criteria for the maximum 90 percent rating have been met.  In this respect, the credible lay and medical evidence demonstrates post right hip resurfacing arthroplasty residuals of 4-wheel walker dependence due to painful motion and weakness and the medical need for total hip replacement.

With respect to left hip motion, the Veteran's left hip has demonstrated flexion from 0 to 90 degrees (VA examination dated July 2007), 0 to 80 degrees (VA examination dated May 2008) and 0 to 100 degrees (VA examination dated April 2011).  The VA clinical records contain no range of motion findings.  These findings fall well short of the criteria of flexion limited to 45 degrees for a 10 percent rating under DC 5252.

The Veteran has demonstrated left hip extension from 0 to 20 degrees (VA examination dated July 2007), 0 to 20 degrees (VA examination dated May 2008) and 0 to 30 degrees (VA examination dated April 2011).  The VA clinical records contain no range of motion findings.  These findings fall well short of the criteria of extension limited to 5 degrees for a 10 percent rating under DC 5251.

The Veteran has demonstrated left hip adduction from 0 to 25 degrees (VA examination dated July 2007), 0 to 15 degrees (VA examination dated May 2008) and 0 to 25 degrees (VA examination dated April 2011).  He has shown left hip abduction from 0 to 30 degrees (VA examination dated July 2007), 0 to 30 degrees (VA examination dated May 2008) and 0 to 45 degrees (VA examination dated April 2011).  There has been left hip external rotation of 45 degrees (VA examination dated July 2007), 0 to 20 degrees (VA examination dated May 2008) and 0 to 40 degrees (VA examination dated April 2011).  Additionally, left hip internal rotation has been measured as 30 to 40 degrees (VA examination dated July 2007), 0 to 10 degrees (VA examination dated May 2008) and 0 to 40 degrees (VA examination dated April 2011).  The VA clinical records contain no range of motion findings.  The VA examination in April 2011 determined that the Veteran could cross his legs, and toe out greater than 15 degrees.

Overall, the range of motion findings do not describe limitation of adduction wherein the Veteran cannot cross his legs, or limitation of rotation wherein the Veteran cannot toe out more than 15 degrees, or limitation of abduction with motion loss beyond 10 degrees.  Thus, the Veteran does not meet the criteria for a compensable rating under DC 5253.

The Board also finds no basis to award a rating greater than 10 percent for left hip disability based upon functional loss due to pain, weakness, fatigability, or incoordination.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca, 8 Vet. App. at 204-08 (1995).  In this case, the Veteran describes left hip symptoms of extreme pelvic pain, daily pain, restrictiveness, instability, stiffness, deformity, incoordination, decreased speed of joint motion, weakness and impairment of gait.  His pain symptoms can occur with rest, but are exacerbated by use.  He has daily flare-ups of pain of 9/10 severity.  His symptoms limit his ability to engage in any type of activity, and require spousal assistance.

The July 2007 VA examiner found that there was evidence of guarding but no evidence of left hip instability.  The limitation of left hip motion began at the terminal ranges of motion, and there was no additional limitation of motion with repetitive testing.  The May 2008 VA examiner found that range of motion testing was unchanged with repetitive testing.  

Here, the Veteran has already been assigned a 10 percent rating based upon painful but noncompensable motion loss of the left hip under DC "5252-5019" which contemplates symptomatic bursitis with noncompensable motion loss.  On this record, the Board finds that the specific clinical findings by the VA examiners fall well short of meeting, or more nearly approximating, the criteria for compensable motion loss under DCs 5251, 5252 or 5253.  The Veteran himself does not specifically describe motion loss comparable to flexion limited to 45 degrees, extension limited to 5 degrees, an inability to cross his legs, or limitation of rotation wherein he cannot toe out more than 15 degrees, or limitation of abduction with motion loss beyond 10 degrees.  As such, further compensation is not warranted with consideration of the provisions of 38 C.F.R. §§ 4.40 and 4.45.

With respect to the left hip, there is no lay or medical evidence of ankylosis, flail joint, or impairment of the femur due to nonunion, fracture or malunion.  As such, the criteria of DCs 5250, 5254 and 5255 are not for application.

With respect to right hip motion, VA examination in July 2007 demonstrated right hip motion from 0 to 90 degrees in flexion, 0 to 20 degrees in extension, 0 to 25 degrees in adduction, 0 to 30 degrees in abduction, 45 degrees of external rotation, and 30 to 40 degrees of internal rotation.  These findings fall well short of motion loss comparable to flexion limited to 45 degrees, extension limited to 5 degrees, an inability to cross his legs, limitation of rotation wherein he cannot toe out more than 15 degrees, or limitation of abduction with motion loss beyond 10 degrees.  

The Veteran described constant, severe unremitting right hip pain which radiated to the buttock and was exacerbated by pivoting motion and walking short distances.  His symptoms, which could occur at rest, restricted his activities and resulted in instability.  He reported the need for spousal assistance with bathing, grooming and dressing.

However, the July 2007 VA examiner found that the Veteran's limitation in right hip motion due to pain began at the terminal ranges of motion with no additional limitation of motion on repetitive testing.  The 10 percent rating assigned from the date of discharge until right hip surgery on February 19, 2008 contemplates painful but noncompensable motion loss of the right hip.  On this record, the Board finds that the specific clinical findings by the July 2007 VA examiner falls well short of meeting, or more nearly approximating, the criteria for compensable motion loss under DCs 5251, 5252 or 5253.  The Veteran himself did not specifically describe motion loss comparable to flexion limited to 45 degrees, extension limited to 5 degrees, an inability to cross his legs, or limitation of rotation wherein he cannot toe out more than 15 degrees, or limitation of abduction with motion loss beyond 10 degrees.  As such, further compensation is not warranted with consideration of the provisions of 38 C.F.R. §§ 4.40 and 4.45.

As reported above, the Veteran underwent right hip resurfacing arthroplasty on February 19, 2008.  The RO awarded a 100 percent rating effective to March 31, 2009, and has assigned a 30 percent rating effective April 1, 2009.

The Veteran has consistently reported a worsening of right hip pain since the February 19, 2008 surgery which included an additional symptom of internal popping.  He has been medically described as walker-dependent as a result of the surgery.  A June 2008 VA physical therapy consultation reflected 2/5 strength with external rotation, 1/5 strength with internal rotation, and 3/5 strength for adduction and abduction.  A January 2009 orthopedic surgery consultation described internal rotation to 20 degrees and external rotation to 10 degrees and resulted in a diagnosis of painful right hip resurfacing and trochanteric bursitis.  

According to a VA orthopedic surgeon in October 2010, the Veteran has experienced a significant wearing of his right acetabular cartilage which is known as a rare but unpredictable surgical complication.  A total hip arthroplasty has been recommended.  That examination demonstrated significant pain and guarding in all right hip motion planes with all planes limited due to pain.  

The Board first takes judicial notice that a right hip resurfacing arthroplasty involves a partial prosthetic hip replacement.  See generally http://orthoinfo.aaos.org/topic.cfm?topic=A00586.  The Veteran has been medically described as walker dependent due to painful motion and weakness, and is a surgical candidate for total hip replacement.  The Board finds that these findings approximate the criteria for the maximum 90 percent rating under DC 5054.  As such, a 90 percent rating is awarded effective April 1, 2009 (the period following the convalescence period for implantation of prosthesis).  There are no schedular criteria for a higher rating still.

Sinusitis and rhinitis

Applying the criteria to the facts of this case, the Board finds that a compensable rating is not warranted for the Veteran's rhinitis disability for any time during the appeal period.  In this respect, the credible lay and medical evidence demonstrates that the Veteran's service-connected allergic rhinitis with polyposis has not been manifested by greater than 50 percent nasal passage obstruction on both sides, complete nasal obstruction on one side, or nasal polyps.  

The Board further finds that an initial 10 percent rating, but no higher, is warranted for his sinusitis disability.  In this respect, the credible lay and medical evidence demonstrates a sinusitis disability manifested by 5-6 three non-incapacitating episodes of sinusitis per year characterized by headaches, pain, and purulent discharge or crusting, but no incapacitating episodes of sinusitis requiring prolonged antibiotic treatment.

With respect to his rhinitis disability, the Veteran has generally reported persistent congestion and terrible airflow with excess nasal mucous, itchy nose and watery eyes.  On VA examination in July 2007, he described obstructed nose breathing only in the early morning.  During his hearing in July 2010, the Veteran claimed to manifest minor nasal polyps and described unstoppable mucus, bleeding and blockage if he didn't take his medications.  On VA examination in April 2011, he described constant breathing difficulty with hoarse speech.

The July 2007 VA examination was significant only for a 50 percent right nasal obstruction and mild tenderness of the maxillary sinus region.  There were no polyps, rhinoscleroni, purulent discharge, crusting, or adventitious breath sounds.  The April 2011 VA examination found a 20 percent obstruction of the left nasal passage, and a 30 percent obstruction of the right nasal passage.  There were no nasal polyps, permanent turbinate atrophy, rhinoscleroma, tissue loss, scarring, deformity, or evidence of Wegener's granulomatosis or granulomatous infection.

Overall, while the Veteran describes nasal obstruction, the Veteran has not specifically described either a 50 percent nasal passage obstruction on both sides, or complete nasal obstruction on one side.  To the extent that his allegations may be construed as such, the clinical findings on VA examinations in July 2007 and April 2011 did not find either a 50 percent nasal passage obstruction on both sides, complete nasal obstruction on one side.  Notably, the extensive VA clinical records of file do not document any nasal obstruction.  The Board holds that the specific findings of obstruction percentage by the VA examiners hold substantially greater probative weight than the generalized descriptions of obstruction provided by the Veteran, as these examiners hold greater expertise in evaluating the extent of nasal obstruction.

Furthermore, while the Veteran claims to manifest minor polyps, the Board also holds that the specific findings of no nasal polyps by the VA examiners hold substantially greater probative weight than the self-diagnosis by the Veteran, as these examiners hold greater expertise in evaluating and diagnosing nasal polyps.

With respect to the sinusitis disability, the Veteran has not reported any incapacitating episodes of sinusitis, and denied such on VA examinations in July 2007 and April 2011.  The extensive VA clinical records of file document no instances of sinusitis requiring bed rest and treatment by a physician with antibiotic treatment lasting at least 4 weeks.  Thus, there is no evidence of incapacitating sinusitis episodes during the appeal period.

With respect to non-incapacitating episodes of sinusitis, the Veteran has variously reported persistent sinus pain and bleeding associated with congestion and terrible airflow (Veteran's statements received in March and April 2007), suffering from bleeding, pus and headaches (Veteran's statement received in May 2008), nasal discharge and blood from the nose episodes occurred two times per week (VA examination dated July 2007), and unstoppable mucus, bleeding and blockage if he didn't take his medications (July 2010 Board hearing).  At his examination in April 2011, the Veteran described 5 to 6 episodes of sinusitis over a 4 year period requiring antibiotic treatment and otherwise described 5-6 episodes of sinusitis per year which lasted one to two days in duration.

Here, the VA examinations in July 2007 and April 2011 were significant only for tenderness of maxillary sinus and clear nasal secretion.  The extensive clinical records document no clinical findings or treatment for sinusitis.  An October 2010 sinus x-ray was unremarkable for sinusitis.  Thus, the clinical evidence of record does not support the criteria for a compensable rating.

However, the Veteran has reported 5-6 episodes of sinusitis per year which lasted one to two days in duration.  The Veteran has a history of sinusitis extending to active service, and is deemed competent to describe an awareness of sinusitis symptomatology.  In the absence of any evidence which contradicts the Veteran's testimony, the Board finds that the Veteran's description of 5-6 episodes of sinusitis per year which last one to two days in duration satisfies the criteria for a 10 percent rating under DC 6514.  

Notably, a higher rating under DC 6514 is not warranted as there is no lay or medical evidence of more than 6 non-incapacitating episodes of sinusitis per year.



Extraschedular consideration

To accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment.  38 C.F.R. § 3.321(b)(1).

The provisions of 38 C.F.R. § 3.321(b) state as follows: 

Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience.  To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service- connected disability or disabilities.  The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 

In Thun v. Peake, 22 Vet. App. 111 (2008), the Court specified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted.  The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology.  Id. at 115.  If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops.  Id.

If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization.  Id. at 116.  If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating.  Id.

VA's General Counsel has stated that consideration of an extra-schedular rating under 3.321(b)(1) is only warranted where there is evidence that the disability picture presented by the Veteran would, in that average case, produce impairment of earning capacity beyond that reflected in the rating schedule or where evidence shows that the Veteran's service-connected disability affects employability in ways not contemplated by the rating schedule.  See VAOPGCPREC 6-96 (Aug. 16, 1996). 

In Thun, the Court further explained that the actual wages earned by a particular Veteran are not considered relevant in the calculation of the average impairment of earning capacity for a disability, and contemplate that Veterans receiving benefits may experience a greater or lesser impairment of earning capacity than average for their disability.  The Thun Court indicated that extraschedular consideration cannot be used to undo the approximate nature of the rating system created by Congress. 

The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance.  However, the Board is not precluded from raising this question, see Floyd v. Brown, 9 Vet. App. 88 (1996), and addressing referral where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual.  Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). 

The Board is aware of the Veteran's complaints as to the effects of his service-connected depressive disorder, thoracolumbar spine disability, bilateral knee disability, bilateral hip disability, allergic rhinitis and sinusitis have had on his activities of work and daily living.  In the Board's opinion, all aspects of these disabilities are adequately encompassed in the assigned schedular ratings. 

As instructed in Mauerhan, the Board has considered all of the Veteran's reported psychiatric symptomatology in the assigned 70 percent rating.  With respect to the thoracolumbar spine, the Board has awarded compensation for the orthopedic aspects involving limitation of motion as well as the neurologic impairment involving the left lower extremity.  The Board has also considered whether a higher rating still is warranted based upon the frequency and duration of IVDS episodes.  With respect to the bilateral knee and left hip disabilities, the Veteran has been awarded compensation based upon painful motion and multiple diagnostic criteria were considered ruling out further compensation.  The evaluation for the right hip contemplates all functional limitations reported by the Veteran.  The Veteran's sinusitis and rhinitis symptomatology is also contemplated by the applicable schedular criteria.  In short, the Board finds that the assigned schedular evaluations are adequate.  As such, there is no basis for extraschedular referral in this case.  See Thun, 22 Vet. App. 111, 114-15 (2008).

TDIU & SMC

The Board notes that, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a total rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record.  Here, the Veteran has been awarded TDIU effective to the day following his separation from service.  Therefore, the TDIU benefit has already been awarded to the greatest extent possible.

Additionally, as noted in the Introduction, any inferred issues regarding entitlement to SMC based on the Board's decision are referred to the AOJ for appropriate action.    



ORDER

An initial 70 percent evaluation, but no higher, for depressive disorder is granted, subject to applicable law and regulations governing the award of monetary benefits.  

Prior to May 15, 2008, an initial evaluation in excess of 20 percent for the chronic orthopedic manifestations of the thoracolumbar spine disability is denied.

As of May 15, 2008, an initial 40 percent evaluation, but no higher, for the chronic orthopedic manifestations of the thoracolumbar spine disability is granted, subject to applicable law and regulations governing the award of monetary benefits.

For the entire appeal period, a separate initial evaluation of 10 percent, but no higher, for the chronic neurologic manifestation of left lower extremity radiculopathy is granted, subject to applicable law and regulations governing the award of monetary benefits.  

An initial evaluation in excess of 10 percent for right knee degenerative disease of the anterior cruciate ligament with patellofemoral pain syndrome is denied. 

An initial evaluation in excess of 10 percent for left knee patellofemoral pain syndrome is denied.

An initial evaluation in excess of 10 percent for status post right hip resurfacing arthroplasty prior to February 19, 2008 is denied.

As of April 1, 2009, an initial evaluation of 90 percent, but no higher, for status post right hip resurfacing arthroplasty is granted, subject to applicable law and regulations governing the award of monetary benefits.  

An initial evaluation in excess of 10 percent for left hip femoral head avascular necrosis is denied.

An initial compensable evaluation for allergic rhinitis with polyposis is denied.

An initial 10 percent evaluation, but no higher, for sinusitis is granted, subject to applicable law and regulations governing the award of monetary benefits.



____________________________________________
A. JAEGER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs