Citation Nr: 1310240 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 04-09 117 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for degenerative arthritis of the left hip. 2. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The Veteran served on active duty from September 1982 to July 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision entered in April 2003 by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The Board by its May 2007 decision adjudicated certain issues, including a claim for an increased rating for a left hip arthritis, which were denied, while remanding the issue of TDIU entitlement so that additional development could be undertaken. The Board's denials were then appealed to the U.S. Court of Appeals for Veterans Claims (Court) and the parties to that appeal jointly moved the Court to vacate the Board's denials and remand same for further review, which it did by way of its May 2008 order. The Board by its February 2009 decision determined that new and material evidence had not been received by VA to reopen a previously denied claim for service connection for lumbar disc disease, and remanded the issues involving claims for increase for rheumatoid arthritis with degenerative joint disease of the ankles, right knee, right hip, and right hand; degenerative arthritis of the left hip; and a TDIU, for additional actions. The Board by its October 2010 decision denied entitlement to a rating in excess of 40 percent for rheumatoid arthritis and remanded to the VA's Appeals Management Center (AMC) the issues relating to claims for increase for left hip arthritis and TDIU entitlement. Further remand of the same issues was undertaken by the Board in its June 2012 action. Following the AMC's attempts to complete the actions on appeal, the case has since been returned to the Board for further review. The issue of TDIU entitlement is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the AMC. FINDINGS OF FACT 1. Throughout the period in question, the Veteran's left hip arthritis has been manifested by complaints of pain and a showing of not more than a noncompensable limitation of left hip motion in association with a mild arthritic process; no additional motion loss due to pain and functional impairment is indicated and there is no showing of ankylosis, flail joint, or femur impairment. 2. The schedular criteria for rating of the Veteran's left hip arthritis are adequate for the symptoms and manifestations of disablement demonstrated to be present and the assigned evaluation adequately compensates the Veteran for the degree of disability shown. CONCLUSION OF LAW The criteria for the assignment of a rating in excess of 10 percent for degenerative arthritis of the left hip have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003-5253 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Remand Compliance This matter was previously remanded by the Board in February 2009, October 2010, and June 2012 in order to accomplish certain development, including the conduct of one or more VA medical examinations. All of the actions sought by the Board through its prior development requests as to the matter herein addressed on its merits now appear to have been completed as directed, and it is of note that neither the Veteran, nor his representative, contends otherwise. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). Duties to Notify and Assist Before addressing the merits of the Veteran's claim on appeal, the Board is required to ensure that the VA's duties to notify and assist have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; see Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000). The notification obligation in this case was accomplished by way of letters from the RO to the Veteran in April 2002, October 2002, and March 2006. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice is to be furnished to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini, supra. Here, full VCAA notice, including that pertaining to the assignment of disability ratings and effective dates, necessarily occurred subsequent to the RO's initial adjudicatory action in April 2003, in contravention of Pelegrini. Any error as to the timing of the notice provided, however, was cured by the RO's and AMC's readjudication and issuance of additional decisional documents at a point in time subsequent to the Veteran's receipt of full VCAA notice. See Prickett v. Nicholson, 20 Vet. App. 370, 376-78 (2006). In light of the foregoing, and in the absence of any allegation of prejudice by the Veteran or his representative, the Board cannot conclude that any defect in the timing or substance of the notice provided affected the essential fairness of the adjudication, with resulting prejudice to the Veteran. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the Veteran's service treatment records, VA medical treatment records, and various other items of evidence have been made a part of the Veteran's claims folder for review by the RO, AMC, and Board. Id. Records have also been obtained from the Social Security Administration and associated with the other evidence on file. It, too, is noted that on remand efforts were made to obtain the Veteran's VA vocational rehabilitation training files, but it was determined by the AMC in August 2012 that the folders in question had been destroyed and that the records were unavoidably unavailable. Also, the Veteran has not made the RO, AMC, or Board aware of any additional evidence that needs to be obtained in order to decide fairly the claim herein addressed on its merits and has not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced him in the adjudication of his appeal. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). The record indicates that VA has afforded the Veteran multiple VA medical examinations in order to ascertain the nature and severity of the disability in question. The reports from these examinations, and the record as a whole, are found to be sufficiently detailed as to permit fair and equitable consideration of the merits of the issue presented. As such, further development action relative to the disability herein at issue is not required. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In view of the forgoing, the Board finds that VA has satisfied its duties to notify and assist under the governing law and regulations. Legal Authority Governing Claims for Increased Ratings Disability ratings are intended to compensate impairment in earnings capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes (DCs) identify the various disabilities. Id. Evaluation of a service-connected disorder requires a review of the Veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2012). Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. Id.; Esteban v. Brown, 6 Vet. App. 259 (1994). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an award of service connection for a disability has been granted and the assignment of an initial evaluation is at issue, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 126 (2001). In Hart v. Mansfield, 21 Vet. App. 505 (2007), it was held that "staged ratings are appropriate for an increased-rating claim when the factual findings shown distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings." When assigning a disability rating for a musculoskeletal disorder it is necessary to consider functional loss due to flare-ups, fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). Under 38 C.F.R. §§ 4.40, 4.45, 4.59, the rating for an orthopedic disorder must reflect functional limitation which is due to pain, as supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is also as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity, or the like. Consideration of pain and functional loss is required only with respect to those DCs where the basis for rating is limitation of motion. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). Analysis In this instance, the RO by its rating decision in August 1999 established service connection for degenerative arthritis of the left hip. At that time, a 10 percent rating was assigned under DC 5003-5253, effective from November 1998. No subsequent change in the rating assigned or the DC utilized for rating of that disorder is indicated. This appeal stems from the Veteran's claim for increase received by VA in March 2002, alleging that the 10 percent rating is inadequate for the level of impairment he experiences that is largely due to pain. Degenerative arthritis is rated in accordance with 38 C.F.R. § 4.71a, DC 5003, which provides that when arthritis is established by x-ray findings it will be rated on the basis of limitation of motion under the appropriate DCs for the specific joint or joints involved. Where the limitation of motion of the specific joint involved is noncompensable under the appropriate DCs, a 10 percent rating 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. Under 38 C.F.R. § 4.71a, DC 5253, impairment of the thigh manifested by limitation of adduction, with the inability to cross legs, or rotation and inability to toe-out more than 15 degrees on the affected leg, warrants a 10 percent evaluation. A 20 percent evaluation is warranted for limitation of abduction of the thigh if motion is lost beyond 10 degrees. The normal range of motion for the hip is from 125 degrees flexion to 0 degrees extension and from 45 degrees abduction to 0 degrees adduction. 38 C.F.R. § 4.71, Plate II. Other potentially applicable DCs include 5251 and 5252, providing that where extension of the thigh is limited to 5 degrees, an evaluation of 10 percent is for assignment. A 10 percent requires flexion of the thigh limited to 45 degrees. A 20 percent evaluation requires flexion limited to 30 degrees, while a 30 percent evaluation requires flexion limited to 20 degrees and a 40 percent evaluation requires flexion limited to 10 degrees. Ankylosis of the hip, rated according to DC 5250, that is favorable and in flexion at an angle between 20 and 40 degrees and slight adduction or abduction results in a 60 percent evaluation. A 70 percent evaluation requires intermediate ankylosis. Unfavorable or extremely unfavorable ankylosis where the foot does not reach the ground and crutches are needed warrants a 90 percent evaluation and entitles the Veteran to special monthly compensation. Under DC 5254, an 80 percent rating is assigned for hip, flail joint. Under DC 5255, for impairment of the femur manifested by malunion thereof with slight knee or hip disability warrants a 10 percent evaluation; malunion with moderate knee or hip disability warrants a 20 percent evaluation; malunion with marked knee or hip disability warrants a 30 percent evaluation. Fracture of the surgical neck of the femur, with false joint, warrants a 60 percent evaluation, as does fracture of the shaft or anatomical neck of the femur with nonunion, without loose motion, and where weight bearing is preserved with the aid of a brace. The highest evaluation of 80 percent is warranted for fracture of the shaft or anatomical neck of the femur with nonunion and with loose motion (spiral or oblique fracture). Review of the record, including reports of VA medical examinations in 2002, 2008, 2009, and 2012, indicates that radiographs identify mild osteoarthritis of the left hip, with reduced range of motion, but not to a compensable degree. When seen on an outpatient basis in November 2001, range of motion of the left hip was described by an attending medical professional as "good." The Veteran voluntarily resisted all motion of the hip when evaluated by VA in May 2002, but testing disclosed motion of the left hip from 0 to 120 degrees, without pain or weakness; a mild lack of endurance was noted, without incoordination. A significant psychological overlay to his hip symptoms was found to be present. On examination in December 2008, abduction was to 32 degrees, adduction to 24 degrees, external rotation to 55 degrees, internal rotation to 29 degrees, and flexion to 95 degrees with pain. With three repetitions, flexion was to 101 degrees. In April 2009, external rotation was to 55 degrees and internal rotation was to 14 degrees. Abduction was to 27 degrees, adduction to 17 degrees, and extension was to 30 degrees. Three repetitions of range of motion produced no additional motion loss. When an unrelated disability was examined by VA in July 2009, the Veteran indicated that he had deferred surgery on his left hip as a result of shoulder problems, which precluded use of ambulatory aids. A VA outpatient treatment note in June 2010 includes a diagnostic impression of a labral tear of the left hip. Medical examination in June 2010 on behalf of the Social Security Administration nonetheless indicated that forward flexion of the left hip was possible from 0 to 90 degrees and backward extension was possible from 0 to 20 degrees. Abduction was from 0 to 25 degrees; adduction was from 0 to 15 degrees. The Veteran was subsequently found to be disabled by the Social Security Administration from April 2011, but not prior thereto, on the basis of multiple physical and mental impairments, including degenerative joint disease. When the Veteran was examined by VA in July 2012, flexion was possible to 90 degrees, with there being no objective evidence of pain. Extension was greater than 5 degrees, without pain. Abduction was not lost beyond 10 degrees, adduction was not limited such that the Veteran was unable to cross his legs, and rotation was not limited such that he could not toe-out more than 15 degrees. No change in the foregoing was found with repetitive movement; pain, fatigue, weakness, incoordination, or lack of endurance did not further reduce range of motion. Functional loss or impairment was limited to less movement than normal and pain on movement. No loss of muscle strength or indicia of ankylosis were identified. Malunion or nonunion of the femur, flail hip joint, or leg length discrepancy was absent. In all, there is no showing of a limitation of adduction or abduction to permit the assignment of a higher schedular evaluation than 10 percent under DC 5253. Ankylosis is not demonstrated, nor is there any indication that a limitation of extension or flexion is present, as would warrant a compensable evaluation under DCs 5251 or 5252. Flail joint or femur impairment is not demonstrated, and to the extent that a labral tear is shown, its effects are limited to reduced motion and subjective complaints of pain. Pain and functional loss, to the extent shown and as manifested at time by a lack of endurance and painful motion, are not determined by attending or reviewing medical professionals to result in any further diminution in range of motion. The Veteran avers that pain and reduced motion involving his left hip are disabling and warrant more than a 10 percent rating. He surely is competent to state what comes to him through his senses, to include the occurrence and frequency of pain, see Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). While his complaints of pain are credible and otherwise substantiated by the record when evaluated at times during the course of the instant appeal, his contention that an increased rating is warranted is not corroborated by the evidence on file. Rather, a preponderance of the evidence is against the assignment of a schedular evaluation in excess of 10 percent under DC 5253 or any analogous DC, or on the basis of pain and functional loss, per 38 C.F.R. §§ 4.40, 4.45, 4.59 and DeLuca, supra. In addition, consideration of extraschedular criteria for the assignment of an increased evaluation is required. See Barringer v. Peake, 22 Vet. App. 242 (2008). Here, the record does not establish that the rating criteria are inadequate for rating of the Veteran's service-connected left hip disorder. That disability is manifested chiefly by subjective complaints of pain and a showing of mild arthritic involvement and an associated noncompensable limitation of motion. The competent medical evidence of record shows that the manifestations and the effects of the Veteran's disability have been fully considered and are contemplated in the rating schedule; hence, referral for an extraschedular rating is unnecessary at this time. Thun v. Peake, 22 Vet. App. 111, 115 (2008). A preponderance of the evidence is against the assignment of an increased rating for degenerative arthritis of the left hip at any time during the appeal period, see Mansfield, supra, and to that extent, the benefit sought on appeal must be denied. ORDER An increased rating for degenerative arthritis of the left hip, currently evaluated as 10 percent disabling, is denied. REMAND By its most recent remand, the Board directed the AMC to undertake a social and industrial survey of the Veteran in order to better assess his educational and employment background. This was to be followed by the conduct of a VA examination in order to ascertain employability. On remand, the social and industrial survey was undertaken by way of a psychological interview of the Veteran which was conducted in January 2013. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (substantial, not absolute, compliance with remand directives is required). However, that evaluation was preceded by the VA examination and opinion concerning TDIU entitlement, which occurred in July 2012. This represents a violation of the Court's holding in Stegall, supra. Moreover, there are conflicting entries in the July 2012 and January 2012 examinations as to the Veteran's current or recent employment. Notably, the VA staff psychologist in January 2013 indicated that the Veteran was unemployed and had not worked since May 2009, while the VA clinician in July 2012 reported that the Veteran was then working at a new church as a bishop who oversaw many churches and was responsible for the training of pastors. It was also set forth that over the prior six weeks he had been working about 12-16 hours weekly and had also been producing a radio show. Further remand is necessary for clarification of the Veteran's work status and earnings from employment, with subsequent determination by the AMC as to whether the Veteran is currently gainfully employed or not, or but marginally employed. Accordingly, the case is REMANDED for the following actions: 1. Ascertain whether the Veteran is currently employed, be it full-time or part-time, and the income received from those employment activities. If no current employment is identified, then ascertain at what point in time, if any, he was last gainfully, as opposed to marginally employed. 2. Then, return the report of the VA examination conducted in July 2012 by E.A. Carson-Sanchez, M.D., to Dr. Carson-Sanchez to permit her to review the claims folder in detail, prior to the preparation of an addendum to her earlier report as to the Veteran's TDIU entitlement. If Dr. Carson-Sanchez is unavailable, then another VA medical professional should be directed to prepare the addendum. The Veteran's VA claims file must be furnished to Dr. Carson-Sanchez or her designee for use in the study of this case and the author of the addendum should indicate whether the claims folder was provided and reviewed. Following a review of the claims folder, Dr. Carson-Sanchez or other VA medical professional is asked to address the following question, providing a complete rationale with citation to the record for the opinion furnished: Is it at least at likely as not (50 percent or greater probability) that the Veteran's service-connected disabilities, alone, preclude him now or have precluded him at any point from November 2001 to the present from obtaining and maintaining substantially gainful employment of any type, based on his educational and occupational background? When providing the opinion Dr. Carson-Sanchez or her designee should not consider the Veteran's nonservice-connected disabilities or his age. Dr. Carson-Sanchez or her designee is advised that the term as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of unemployability as to find against unemployability. More likely and as likely support unemployability; less likely weighs against the claim. 3. Lastly, readjudicate the issue of TDIU entitlement and incorporate therein findings as to the Veteran's current and last employment and whether he is now or has been marginally employed during the appeal period. If the benefit sought is not granted, then provide the Veteran a supplemental statement of the case and afford him a reasonable period to respond, before returning the case to the Board for further review. No action by the Veteran is required until he receives further notice. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs