Citation Nr: 1309243	
Decision Date: 03/19/13    Archive Date: 04/01/13

DOCKET NO.  10-42 852	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUE

Entitlement to an increased rating for degenerative joint disease (DJD) of the left hip, rated 10 percent disabling.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

J. Fussell, Counsel



INTRODUCTION

The Veteran had active service from January 2, 1976, to March 1, 1976 in the Marines and from March 1979 to March 1982 in the Army.  

This matter comes before the Board of Veterans' Appeals (Board) from a June 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which denied a rating in excess of 10 percent for DJD of the left knee and denied reopening of claims for service connection for a left knee disorder, a low back disorder, and residuals of a left leg (tibial) fracture.  The Veteran initiated an appeal as to each of the issues.  A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal, except as otherwise stated herein.  

In the Veteran's October 2010 VA Form 9, Appeal to the Board, he requested a hearing before a Veterans Law Judge at the local RO (commonly called a travel Board hearing).  However, in May 2011 he withdrew his request for a travel Board hearing.  Also, in July 2011 the Veteran withdrew his appeal as to the denials of his applications to reopen claims for service connection for a left knee disorder, a low back disorder, and residuals of a left leg (tibial) fracture.  This was acknowledged in the January 2013 Informal Hearing Presentation.  

The Veteran now has a combined disability rating of 40 percent but this does not meet the criteria under 38 C.F.R. § 4.16(a) for a schedular total disability rating based on individual unemployability due to service-connected disabilities (TDIU rating).  

At the 2010 VA examination it was noted that the Veteran was currently disabled from a nonservice-connected bipolar disorder and did not do any work.  The evidence does not otherwise show that the service-connected disabilities cause the Veteran to be unable to obtain or retained substantially gainful employment and, so, there is no inferred claim for an extra-schedular TDIU rating under 38 C.F.R. § 4.16(b).  Generally see Rice v. Shinseki, 22 Vet. App. 447 (2009) (per curiam); Roberson v. Principi, 251 F.3d 1378, 1384 (Fed.Cir. 2009); and Norris v. West, 12 Vet. App. 413 (1999).  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

The Veteran's DJD of the left hip is manifested by full extension, abduction, adduction, external rotation, and internal rotation but a noncompensable limitation of flexion with pain throughout all planes of motion, pain, weakness, and fatigue after repetitive flexion; but his need for a cane as an ambulatory aid and left lower extremity shortening are due to nonservice-connected residuals of reconstruction left knee surgery, following a postservice vehicular accident; and there is no ankylosis of the hip and no actual episodes of dislocation; and there is no impairment of the left femur, including no malunion, and there is not more than slight hip disability. 


CONCLUSION OF LAW

The criteria for a rating in excess of 10 percent for DJD of the left hip are not met.  38 U.S.C.A. § 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.2, 4.7, 4.10, 4.21, 4.40, 4.41, 4.45, 4.59, Diagnostic Codes 5003 and 5252 (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim.  38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159. 

Duty to Notify

Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of: (1) any information and medical or lay evidence needed to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion thereof the claimant is to provide.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).  The VCAA notice was intended to be provided before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

In a claim for increase, the VCAA notice requirements include notice to provide, or ask VA to obtain, medical or lay evidence of increased severity and the impact thereof on employment to substantiate the claim; and providing examples of types of medical or lay evidence that may be submitted, or that VA can be asked to obtain, which are relevant to establishing an increased rating.  Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), affm'd in part by Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed.Cir. 2009).  The notice should also inform the claimant as to how disability ratings and effective dates are assigned.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  

The RO provided the Veteran with pre-adjudication VCAA notice by letter, dated in February 2010 which complied with the VCAA requirements, including the holding in Vazquez-Flores, Id.  The notice included the type of evidence needed to substantiate the claim for increase, namely, evidence of an increase in severity and the types of evidence the Veteran was expected to provide, including the information VA would need in order obtain, on his behalf, any private, VA or other Federal records.  

Moreover, as the claim for an increased rating is denied, no effective matter will be at issue and, so, there is no prejudice to the Veteran.  Dingess, 19 Vet. App. 473 (2006); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993).  


Duty to Assist

As required by 38 U.S.C.A. § 5103A, VA has made reasonable efforts to identify and obtain relevant records in support of the claim.  The Veteran was afforded the opportunity to testify at a hearing in support of his claim but declined that opportunity.  The RO has obtained the Veteran's service treatment records (STRs), private clinical records, and VA treatment records.  

The Veteran was afforded VA examinations for the claim for a higher rating.  McLendon v. Nicholson, 20 Vet. App. 79 (2006); Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003).  38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i).  The examination reports adequately reported the Veteran's clinical history and the examinations themselves were sufficiently in-depth and extensive in nature so as to provide an adequate basis, when taken together with the evidence as a whole, for rating purposes.  The adequacy of the examination obtained has not been challenged.  The Board is entitled to assume the competence of a VA examiner and the adequacy of a VA medical examiner's opinion unless either is challenged.  See Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011); Bastien v. Shinseki, 599 F.3d 1301, 1307 (Fed.Cir. 2010); Rizzo v. Shinseki, 580 F.3d 1288, 1290-91 (Fed. Cir. 2009); and Cox v. Nicholson, 20 Vet. App. 563, 569 (2007); and Hilkert v. West, 12 Vet. App. 145, 151 (1999).  

As there is neither an indication that the Veteran was unaware of what was needed for claim substantiation nor any indication of the existence of additional evidence for claim substantiation, the Board concludes that there has been full VCAA compliance.  

Background

Private clinical records show that the Veteran underwent reconstructive surgery of his left knee in June 1983.  

VA X-rays of both hips in July 1998 revealed mild degenerative changes involving both hips with evidence of a small amount of bony overgrowth of the right and left acetabular roofs.  Both hip joint spaces were pretty well maintained.  The impression was mild degenerative changes involving both acetabular roofs; and mild degenerative changes involving the left hip.  X-rays of the left femur revealed no bone trauma or destruction of the left femoral shaft. 

An August 1998 VA outpatient treatment (VAOPT) shows that the Veteran was seen for left lower extremity shortening.  He reported that he had injured his left knee in a motor vehicle accident (MVA) in 1983 which required two arthroscopic surgeries for menisceal tears.  On examination his left lower extremity was 1/2 inch shorter than on the right.  The assessments were left knee DJD and left lower extremity shortening.  

A report of VA examination in 1998 reflects that past X-rays had revealed degenerative changes in the Veteran's left hip.  

On VA examination in September 2009 to determine the severity of the Veteran's service-connected right tibial fracture residuals, his claim files were reviewed.  He denied any particular history of injury to his left hip and had no history of surgery on his left hip.  He had had reconstructive left knee surgery in 1983 after an MVA.  His leg length discrepancy (left being shorter than the right) was noted and he reported having progressive problems with left hip pain and dysmobility developing over the last few years as a result.  He rated his left hip pain at about 7 or 8 on a scale of 10.  He noted fatigability and lack of endurance.  He had no swelling, redness or warmth.  In addition to left hip pain and stiffness, he had noted giving way of the left hip but no locking of the joint.  He indicated he had rare episodes of dislocation of the left hip in the past, but none recently.  He had a feeling of giving way with apparent episodes of dislocation of the left hip about once every 2 weeks or so.  It was reported that X-rays revealed an orthopedic staple in the left medial femoral condyle with chondrocalcinosis of the medial meniscus.  Left hip X-rays in May 2004 had revealed mild degenerative changes of the left hip but were otherwise unremarkable.  

On physical examination the Veteran used an elastic brace on his left knee most of the time.  He used a cane as an ambulatory aid and used an orthotic lift in his left shoe.  No episodes of dislocation or recurrent subluxation were noted.  It was indicated that inflammatory arthritis was not applicable to the Veteran.  He had noted chronic pain as well as weakness and instability/dysmobility of the lower extremities, especially the lower legs and left hip.  From his history, he indicated that he had "moderate to severe (more moderate)" effects on activities of daily living.  He had a moderately ataxic gait with abnormal carriage.  He tended to hobble from right to left with a limp of the right lower extremity to aid ambulation.  He had moderate functional limitations with standing, walking, weight-bearing, and propulsion.  His left lower extremity was 1 centimeter, or about 0.5 inches, shorter than the right lower extremity.  

On examination of the Veteran's left hip, he had tenderness but no swelling, redness or warmth.  There was no ankylosis or deformities of the left hip and no particular instability.  Actively and passively, range of motion of the left hip was to 100 degrees of flexion with pain throughout movement.  Extension was to 20 degrees with pain throughout movement.  Adduction was to 25 degrees and abduction was to 45 degrees, with pain throughout both movements.  External rotation was to 50 degrees and internal rotation to 30 degrees, with pain throughout both movements.  Repetitive flexion movement of the left hip caused increased pain with fatigability, weakness, and lack of endurance, and some instability noted after about 4 repetitive flexion movements.  But, flexion range of motion in the left hip remained the same, i.e., to 100 degrees, during and after repetitive movements.  Pain with fatigability, weakness, lack of endurance, and instability were the major impacting factors in the left hip with repetitive motion.  

X-rays revealed chronic post-traumatic/surgical arthropathy changes in the left knee.  X-rays of the left hip were read as essentially normal but it was noted that prior X-rays in 2004 had revealed apparent mild degenerative changes.  The pertinent diagnosis was left hip degenerative arthritis with chronic left hip arthralgia and dysmobility.  It was felt that the Veteran's left hip problems were at least partly related to his history of left knee surgery and left leg shortening but it appeared reasonable to assume that his current degenerative left hip arthritis with chronic left hip arthralgias and dysmobility were at least as likely as not directly related to and caused by or aggravated by his service-connected residuals of a right tibial avulsion fracture.  

On VA examination in March 2010 the Veteran's electronic medical records and six volumes of claims files were available, and the Veteran's military medical records contain in the first volume were reviewed.  The Veteran's complaints include left hip pain.  It was reported that he had weakness, stiffness, and instability and that he also had lack of endurance and effusion but had not had any dislocations of the left knee or hip.  The signs of inflammation were swelling, heat, redness, and tenderness.  He now took medications, including Vicodin, without any side-effects.  

It was reported that the Veteran complained of flare-ups of left knee pain and used a brace on his left knee, as well as a corrective shoe lift in the left shoe of about 1/2 inch.  He had had reconstructive left knee surgery in 1983.  He reported that he could stand for about 30 minutes and that he could walk for about 150 feet.  He reported that on the way to the examination he had had to stop twice to rest and relieve his discomfort.  

On physical examination the Veteran took off his socks and shoes without any problems.  He also removed a left knee brace.  He was barely able to walk across the room without the knee brace.  He was unable to walk on his heels or on his toes.  He was unable to stand on either leg or hop on either leg.  He was not able to squat due to weakness in his legs.  When on the examining table his legs appeared normal.  There was no evidence of significant edema or swelling of the joints.  There were postoperative scars on the left knee.  Flexion of the left hip was to only about 100 degrees, and extension was to zero (0) degrees.  Left hip adduction was to 25 degrees and abduction was to 45 degrees.  Left hip external rotation was to 40 degrees and internal rotation was to 30 degrees.  It was noted that he had, and complained of, pain in his left knee and left hip when performing motion.  His shoes did not have any unusual wear pattern.  He had some increased pain with fatigability, weakness, and lack of endurance and, so, the examiner concluded that the "DeLuca" findings were positive.  

The examiner noted that left hip X-rays in March 2010 appeared to be normal.  Also, upon feeling the Veteran's left hip there was no evidence of abnormality, although when the Veteran moved across the room it did pop slightly; but, otherwise, no abnormality was found.  The pertinent diagnosis was left hip pain of undetermined etiology.  

On VA examination in May 2010 to determine if the Veteran's left hip DJD was associated with the service-connected residuals of an avulsion fracture of the right tibia, the Veteran's claims files were available for review and the examiner specifically noted having reviewed the Veteran's STRs and two prior examination reports.  A review of the records found that he had not had left hip surgery.  Left hip X-rays in May 2004 had revealed mild degenerative changes but a March 2010 left hip X-ray was reportedly normal.  The left knee reconstructive surgery was due to a 1983 car accident while not on active duty.  The examiner opined that the residuals of the right tibial avulsion fracture could not be linked with the "perceived but not demonstrated degenerative changes of arthritis in the left hip.  

The Veteran's electronic CAPRI records found in Virtual VA reflect in March 2012 the Veteran sought treatment for what he described as dislocations of the left hip.  In 2000 such a "dislocation" was reduced by a physician who had moved the Veteran's leg in a circular motion, without any anesthetic.  Three years ago his left hip had again popped and he had had increased pain.  Two weeks ago, while asleep, he rolled over on his left side and the left hip went out of place.  However, he was able to hobble to a recliner and upon rubbing the hip it went back into place.  He now had pain about the posterior aspect of the greater trochanter.  On entering the examining room he leaned heavily on a cane, using both hands.  He limped favoring his left lower extremity.  He wore a left knee brace.  Rotator motions of both hips were normal except to cause discomfort along the posterior aspect of the left greater trochanter.  He had exquisite tenderness of the left greater trochanter, and somewhat on the right side.  It was reported that X-rays, as interpreted by the examining physician and by another physician, revealed the Veteran's left hip was normal.  The diagnoses were a snapping left hip, and traumatic arthritis of the left knee.  The examiner pointed out that the Veteran had not dislocated his left hip.  He might have dislocated his fascia lata over the greater trochanter, which was what moved to and fro, and caused a sensation of snapping.  The Veteran was informed that he would just have to live with this and he was instructed on how to push the fascia lata back into place.  Thus, the Veteran had three sources of discomfort, spinal degenerative disc disease, snapping left hip, and his left knee.  

Rating Principles

Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment.  38 C.F.R. § 4.10.  When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. §§ 3.102, 4.3

The Veteran's entire history is to be considered when making disability evaluations.  See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  38 C.F.R. § 4.10.  Also, separate ratings may be assigned either initially or during any appeal for an increased rating for separate periods of time based on facts found, a practice known as "staged ratings."  Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). 

Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate DCs for the specific joint(s) involved.  38 C.F.R. § 4.71a, DC 5003.  Under 38 C.F.R. § 4.71(a) DC 5003, if degenerative arthritis is established by X-rays, compensation may be awarded under three circumstances: (1) when limitation of motion meets the schedular criteria for the joint(s) affected and is objectively confirmed, such as by swelling, muscle spasm, or satisfactory evidence of painful motion; (2) when objectively confirmed limitation of motion is not sufficient to warrant a compensable schedular evaluation, 10 percent is assigned for each major joint or minor joint group affected; (3) when there is no limitation of motion, 10 or 20 percent will be assigned depending on the degree of incapacity, if there is X-ray evidence of 2 or more major joints or minor joint groups.  Hicks v. Brown, 8 Vet. App. 417, 420 (1995).  

Together, 38 C.F.R. § 4.59 and DC 5003 deems painful motion from X-ray documented arthritis to be limited motion, even without actually limited motion and even though motion is possible beyond where pain sets in, and warrants a minimum 10 percent rating for each joint affected.  Hicks v. Brown, 8 Vet. App. 417, 420-21 (1995) (citing Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991) and Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991)).  Further, an evaluation in excess of that solely for limitation of motion may be assigned because there may be additional disability as a result of pain or pain on repeated use of a joint.  Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991); Hicks v. Brown, 8Vet. App. 417, 420-21 (1995); and DeLuca v. Brown, 8 Vet. App. 202, 204-08 (1995).  In other words, when rating for limitation of motion, a higher rating may be assigned if there is additional limitation of motion from pain or limited motion on repeated use of the joint.  

In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for consideration.  See DeLuca v. Brown, 8 Vet. App. 202 (1995).  Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. § 4.40.  

With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes.  Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse.  38 C.F.R. § 4.45.  The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59.  This regulation also provides that the intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability, and that crepitation should be noted carefully as points of contact which are diseased. 

Thus, when assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria.  DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995).

Limitation of extension of the thigh warrants a 10 percent rating if extension is limited to 5 degrees.  38 U.S.C.A. § 4.71a, DC 5251.  

Limitation of flexion of a thigh warrants a 10 percent rating if flexion is limited to 45 degrees, a 20 percent rating is warranted if flexion is limited to 30 degrees, a 30 percent rating is warranted if flexion is limited to 20 degrees, and a 40 percent rating is warranted if flexion is limited to 10 degrees.  38 C.F.R. § 4.71a, DC 5252.  

Limitation of adduction of the thigh, with an inability to cross the legs, or limitation of rotation of the thigh, with an inability to toe-out more than 15 degrees, warrants a 10 percent rating.  Limitation of abduction of the thigh, with motion lost beyond 10 degrees, warrants a 20 percent rating.  38 C.F.R. § 4.71a, DC 5253.  

Normal extension of the hip is to aero (0) degrees and normal flexion is to 125 degrees.  Normal abduction is to 45 degrees.  38 C.F.R. § 4.71a, Plate II.  

A flail hip joint warrants an 80 percent rating.  38 C.F.R. § 4.71a, DC 5254.  

Impairment of the femur with malunion and slight knee or hip disability warrants a 10 percent rating; with moderate knee or hip disability a 20 percent rating is warranted, and with marked knee or hip disability a 30 percent rating is warranted.  38 C.F.R. § 4.71a, DC 5255.  

Impairment of the femur with fracture of the surgical neck of the femur with false joint, warrants a 60 percent rating.  With fracture of the shaft of the femur or the anatomical neck of the femur with nonunion, without loose motion but with weight-bearing preserved with the aid of a brace, a 60 percent rating is warranted.  With fracture of the shaft of the femur or the anatomical neck of the femur with nonunion with loose motion (spiral or oblique fracture) an 80 percent rating is warranted.  38 C.F.R. § 4.71a, DC 5255.  

Ankylosis of a hip when favorable, in flexion at an angle between 20 degrees and 40 degrees, and slight adduction or abduction, warrants a 60 percent rating.  Ankylosis of a hip in an intermediate position warrants a 70 percent rating.  Unfavorable ankylosis, with the foot not reaching the ground, necessitating the use of crutches, warrants a 90 percent rating and entitlement to special monthly compensation.  38 C.F.R. § 4.71a, DC 5250.  

In determining the proper rating for a service-connected disability, VA is responsible for considering both the positive and negative evidence.  If the evidence, as a whole, is supportive or is in relative equipoise (i.e., about evenly balanced), then a veteran prevails.  Conversely, if the preponderance of the evidence is negative, then service connection must be denied.  See 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  

Analysis

The Board finds that, under the applicable rating criteria, even considering pain and functional loss due to pain and reported dysmobility, the findings of range of motion testing which show flexion to 100 degrees, a loss of 25 degrees of full flexion, do not more nearly approximate or equate to a compensable degree of limitation of flexion, under DC 5252 (providing for evaluation based on limited hip flexion).  Likewise, range of motion tests have not revealed any limitation of external rotation to 15 degrees, or limitation of adduction, with both being of full range of motion, and so a 10 percent rating is not warranted under DC 5253.  And because he has full abduction to 45 degrees, a 20 degrees rating is not warranted under the DC 5253.  There is also no evidence of limitation of extension and, so, a 10 percent rating is not warranted under DC 5251.  Similarly, there is no evidence of ankylosis or flail joint of the left hip and, so, ratings under DCs 5250 and 5254 are not warranted.  

While the evidence suggests that there may be some abnormality of the left femoral head, at the knee, from past postservice injury or past postservice left knee reconstructive surgery, there is also no evidence of any bony trauma or fracture of the left femur or the left hip, much less the left femoral shaft, anatomical neck of the left femur, or the surgical neck of the left femur.  And, since there was no left femoral trauma, there is no malunion of the femur by which any degree of left hip disability can be used for assigning a disability rating under DC 5255 for left femur impairment. 

On the other hand, there are conflicting findings as to whether the Veteran actually has degenerative arthritis of the left hip.  Favorably resolving doubt in his favor, the Board finds that he does has left hip degenerative arthritis.  This, together with his pain and complaints relative to his fascia lata are sufficient to warrant the current 10 percent rating assigned.  However, consideration may not be given to impairment due to nonservice-connected left knee disability.  As to this, it is apparent that his left lower extremity shortening is a major cause of his impaired gait and limitation of mobility.  Nevertheless, in light of findings of pain, weakness, and fatigue after repetitive flexion, the current rating of 10 percent is justified.  

However, the current findings do not warrant a rating in excess of 10 percent.  As to this, the Veteran's major left hip complaint is that the hip at times dislocates.  However, the recent evaluation in 2012 noted, in essence, that if in fact his left hip had dislocated, surgical reduction would be required.  The fact that the Veteran was able to, in substance, self-reduce, the putative dislocations was actually proof that the fascial lata, which is not part of the bony portion of the hip, at times improperly transverses across of the left hip.  Even considering this as part of the service-connected left hip disorder, the Veteran's use of a cane is clearly necessitated due to his service-connected left knee disability together with the nonservice-connected left lower extremity shortening.  In other words, his impaired gait is not shown to be in any part due to the service-connected left hip DJD or any putative "dislocations" of the left hip.  

The Board has carefully reviewed and considered the Veteran's statements regarding the severity of his left hip and the Board acknowledges that the Veteran, in advancing this appeal, believes that the disability on appeal has been more severe than the assigned disability rating reflects.  Moreover, the Veteran is competent to report observable symptoms.  Layno v. Brown, 6 Vet. App. 465 (1994).  In this case, however, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; and the medical evidence also largely contemplates the Veteran's descriptions of symptoms.  The lay statements have been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. 

Thus, the Board concludes that the record as a whole does not show persistent symptoms that equal or more nearly approximate the criteria for an evaluation higher than 10 percent for the service-connected left hip disability at any time during the time frame which is relevant to this appeal.  Hart, supra.  In other words, the left hip disability has been no more than 10 percent disabling during the relevant time period covered by this appeal, so the rating cannot be "staged" because the 10 percent rating is the greatest level of functional impairment during this time period.  

Extraschedular

The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance but not from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for an extraschedular rating.  The threshold factor in this determination is whether there is such an exceptional disability picture that the available schedular ratings criteria are inadequate.  This is done by comparing the level of severity and symptomatology of the service-connected disability with the established criteria.  If the criteria reasonably encompass the assigned disability level and the symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate and referral for an extraschedular rating is not required.  Thun v. Peake, 22 Vet. App. 111, 115 (2008); aff'd Thun v. Peake, 572 F.3d 1366 (Fed.Cir. 2009).  Significantly, since under 38 U.S.C.A. § 1155 provides that the basis of a disability rating is the "reduction in earning capacity," any compensable rating encompasses employment interference.  

Comparing the Veteran's current disability levels and symptoms to the Rating Schedule, the degree of disability is contemplated by the Rating Schedule and the assigned schedule rating is adequate.  The symptoms shown are not exceptional or unusual for a musculoskeletal disability.  The service-connected disability is orthopedic in nature, and a wide range of signs and symptoms are contemplated in the applicable rating criteria, including pain, loss of motion, painful motion, muscle spasm, strength, fatigue, and endurance.  

In fact, 38 C.F.R. § 4.40 requires consideration of functional loss, including  the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, pain, weakness, and atrophy.  Likewise, 38 C.F.R. § 4.45 requires consideration of, in part, incoordination, impaired ability to execute skilled movements, painful motion, swelling, deformity, disuse atrophy, instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing.  Also, 38 C.F.R. § 4.59 requires consideration of such matters as unstable or malaligned joints, and crepitation.  

Nevertheless, the primary complaint in this case which is pain is not, alone, sufficient to warrant a separate rating because the orthopedic component, by itself, contemplates the production of pain.  See Deluca, Id.  

With respect to the initial inquiry posed by Thun, the Board has been unable to identify an exceptional or unusual disability picture with respect to the Veteran's service-connected left hip disability.  The medical evidence fails to demonstrate symptomatology of such an extent or of such nature that the application of the ratings schedule would not be appropriate.  In fact, the symptomatology associated with the service-connected left hip disorder, principally pain and limitation of motion is specifically contemplated under the appropriate rating criteria.  Admittedly, his overall functional impairment due to his service-connected left hip disability would hamper his performance in some respects, as encompassed in the 10 percent rating now assigned, but certainly not to the level that would require extra-schedular consideration since those provisions are reserved for very special cases of impairment that simply is not shown here.  

Accordingly, the Veteran's disability picture is sufficiently contemplated by the ratings schedule.  Since the available schedular evaluation adequately contemplates the level of disability and symptomatology, the second and third questions posed by Thun become moot.  Thus, no referral for extraschedular consideration is required.  See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).  


ORDER

A rating in excess of 10 percent for DJD of the left hip is denied.  


____________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs