Citation Nr: 1311969 Decision Date: 04/10/13 Archive Date: 04/19/13 DOCKET NO. 05-35 963 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts THE ISSUES 1. What evaluation is warranted for residuals of a right hip injury from August 30, 2004 to March 26, 2007? 2. What evaluation is warranted for residuals of a right hip injury from March 27, 2007 to November 20, 2011? 3. What evaluation is warranted for residuals of a right hip injury from November 21, 2011? REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The appellant served on active duty for training from March to October 1989. She is service-connected for a right hip disability incurred during that time period and is therefore considered a Veteran for VA purposes. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the RO in Boston, Massachusetts. In September 2007, the Board denied the claim. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In November 2008, the Court granted a Joint Motion for Remand. After further development was conducted, the Board again denied the claim in December 2010. The Veteran again appealed to the Court, and in June 2011, the Court granted a new Joint Motion for Remand. In October 2011 and October 2012, the Board remanded the appeal for additional development consistent with the terms of the joint motion. The case has since returned to the Board. FINDINGS OF FACT 1. From August 30, 2004 to March 26, 2007 residuals of a right hip injury were not manifested by a limitation of flexion to 30 degrees or by limitation of abduction with motion lost beyond 10 degrees. 2. From March 27, 2007 to November 20, 2011, residuals of a right hip injury were manifested by limitation of abduction with motion lost beyond 10 degrees. 3. From November 21, 2011, the residuals of the right hip injury were not manifested by limitation of flexion to 20 degrees or less. CONCLUSIONS OF LAW 1. From August 30, 2004 to March 26, 2007, residuals of a right hip injury did not meet the criteria for an initial evaluation greater than 10 percent. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.71a, Diagnostic Code 5253 (2012). 2. From March 27, 2007 to November 20, 2011, with resolution of reasonable doubt in the Veteran's favor, residuals of a right hip injury met the criteria for a 20 percent evaluation. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5253. 3. From November 21, 2011, the criteria for an evaluation in excess of 20 percent for residuals of a right hip injury have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5253. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Because service connection, an initial rating, and an effective date have been assigned, the notice requirements of the Veterans Claims Assistance Act (VCAA), 38 U.S.C.A. § 5103(a) have been met. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Consequently, discussion of VA's compliance with VCAA notice requirements as they relate to the increased rating claim would serve no useful purpose. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claim, and as warranted by law, affording VA examinations. For the reasons discussed below, the Board finds that the examinations are adequate to make a determination on the issue addressed herein on the merits. In October 2012, the Board remanded the claim, in part, to assist the Veteran in obtaining private treatment records from Brockton Hospital. In November 2012, the Appeals Management Center sent the Veteran a letter and requested that she complete and return an authorization form (VA Form 21-4142) so that it could assist her in obtaining these records. Although the Veteran responded by submitting a statement in support of her claim along with some additional private medical records, she did not submit an authorization form. In December 2012, the Appeals Management Center sent her another letter requesting that she complete and return an authorization form for Brockton Hospital. She did not respond. The Board finds that VA has fulfilled its duty to assist the Veteran in this regard and notes that a claimant must cooperate fully with VA's reasonable efforts to obtain relevant records from non-Federal custodians. 38 C.F.R. § 3.159(c)(1)(i). In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Analysis In a November 2004 rating decision, the RO granted service connection and assigned an initial 10 percent rating for residuals of a right hip injury, effective August 30, 2004. In a February 2013 rating decision, the Appeals Management Center increased the rating to 20 percent effective November 21, 2011. For the reasons discussed below and after resolving reasonable doubt in the Veteran's favor, the Board finds that a rating in excess of 10 percent is not warranted between August 30, 2004 and March 26, 2007; that a 20 percent rating, but no higher, is warranted from March 27, 2007 to November 20, 2011; and that a rating in excess of 20 percent is not warranted at any time since November 21, 2011. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects her ability to function under the ordinary conditions of daily life, including employment, by comparing her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Where the claimant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant 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. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. The Court has held that pain alone does not constitute functional loss under VA regulations that evaluate disabilities based upon loss of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Disabilities of the hip and thigh are evaluated under 38 C.F.R. § 4.71a, Diagnostic Codes 5250 through 5255. The Veteran's hip disability is currently evaluated under Diagnostic Code 5253, which pertains to impairment of the thigh. Under this code, a 20 percent rating is warranted for limitation of abduction of the thigh with motion lost beyond 10 degrees. 38 C.F.R. § 4.71a. Diagnostic Code 5251 (limitation of extension of the thigh) need not be considered, as it does not provide a rating in excess of 10 percent. Id. Diagnostic Code 5252 (limitation of flexion of the thigh) assigns a 20 percent rating for flexion limited to 30 degrees, and a 30 percent rating for flexion limited to 20 degrees. Id. Normal range of motion of the hip is from 0 to 125 degrees on flexion and 0 to 45 degrees on abduction. 38 C.F.R. § 4.71, Plate II. In the absence of ankylosis, hip flail joint, or impairment of the femur, Diagnostic Codes 5250, 5254, and 5255 need not be considered. Id. In a September 2004 written statement, the Veteran reported having daily hip pain. During the October 2004 VA examination, the Veteran primarily complained of pain in her left hip. She also reported some right hip pain. She reported having a sedentary job and had occasional pain, which caused her limp on her left side. On physical examination, there was slight tenderness over both hip protrusions on both sides. Range of motion of the hips was completely normal in abduction, adduction, internal rotation, and external rotation. There was no pain associated with range of motion and no evidence of any muscular atrophy. She had good peripheral pulses. X-rays revealed no significant or minor abnormality. A February 2007 private treatment record from Boston Medical Center reflects the Veteran's complaints of a five year history of right hip pain. She said that the pain did not radiate and was worse when walking or laying on it. She said the pain had been continuous lately. It was noted that there was pain in resisted abduction and tenderness over the right trochanter. She was referred for physical therapy. Physical therapy records dated from March to May 2007 reflect that the Veteran complained of moderate to severe pain and demonstrated an antalgic gait. She was issued a straight cane to improve her gait. On March 27, 2007, active flexion was limited to 96 degrees, and active abduction was limited to 8 degrees. Passive flexion was limited 108 degrees; passive abduction was limited to 10 degrees. In May 2007, active flexion was limited to 100 degrees; active abduction was limited to 10 degrees. Passive flexion was limited to 110 degrees; passive abduction was limited to 14 degrees. In a June 2007 letter, the Veteran stated that she had a significant amount of right hip pain. She reported being unable to clean her house efficiently, exercise, or lift her son. She asserted that she constantly had to have people help her with daily routine tasks. A January 2008 private treatment record from Brockton Hospital reflects that the Veteran received an epidural steroid injection of the right hip. During a January 2008 VA examination, the Veteran reported that she used a cane for walking and was unable to stand for more than a few minutes or walk more than a few yards. The examiner indicated that the Veteran had an antalgic gait with poor propulsion. Active and passive flexion of the hip was limited to 110 degrees; extension was limited to 20 degrees; internal rotation was limited to 20 degrees, and external rotation was limited to 15 degrees. The examiner reported adduction twice - limited to 20 degrees and limited to 15 degrees. The examiner did not note when pain began and ended, but noted that there was no additional limitation on repetitive use. It was noted that the Veteran could not cross her right leg over her left and that she had tenderness, painful movement, and right hip weakness. The examiner opined that the Veteran's hip pain was more likely than not due to post-traumatic degenerative joint disease and that her occupational activities were affected by decreased mobility and pain. A September 2008 VA rheumatology note reflects that the Veteran complained of constant pain. She said that the pain was not aggravated by walking. She said she had trouble sleeping and morning stiffness. Range of motion was slightly diminished. In March 2009, it was noted that the pain had somewhat affected her work and her exercise program. During a November 2009 VA examination, the Veteran complained that her right hip had been progressively getting worse. She said she had constant aching pain in her hips, which decreased her ability to perform the activities of daily living. She reported being unable to stand longer than 10 minutes, or walk more than 100 feet. She alleged that she was unable to squat, and could not do walking exercise. She denied any lower extremity sensory deficit. It was noted she walked with the assistance of a cane. On physical examination, there was tenderness, weakness, and guarding of movement of the right hip. There was tenderness to palpation at the greater trochanter area. Range of motion of the right hip was limited to 100 degrees on flexion, to 20 degrees on extension, and to 30 degrees on abduction. She could cross her right leg over her left and could toe out more than 15 degrees. The examiner noted that the Veteran refused repetitive testing due to pain. The diagnoses were hip pain, greater trochanteric bursitis, and degenerative joint disease. The examiner indicated that the hip disability affected occupational activities with decreased mobility, lack of stamina, weakness or fatigue, decreased strength and lower extremity pain, which resulted in increased tardiness. A November 2009 VA rheumatology note reflects that the Veteran complained of pain on the outside of her hips aggravated by weightbearing and walking. It was noted that she walked with limp. On physical examination, she had normal range of hip motion, but there was marked tenderness over the greater trochanter, right greater than left. X-rays from two days prior showed normal hip and sacroiliac joints. The assessment was probable trochanteric bursitis. A September 2011 VA physical therapy record notes that the Veteran worked in contracting. Flexion of the hip was limited to 110 degrees. Strength and motor control was within functional limits, but it was noted that strength was 3+/5 in abduction secondary to lateral hip pain, which was indicative of bursitis. During a November 2011 VA examination, the Veteran complained of bilateral hip pain. She reported having had physical therapy in the past with good but temporary results. She reported applying steroid patches up until one month prior. Range of motion of the right hip was limited to 90 degrees on flexion and greater than 5 degrees on extension with pain at the endpoints. Abduction was lost beyond 10 degrees. Adduction was not limited such that she could not cross her legs and rotation was not limited such that she could not toe-out more than 15 degrees. After repetitive-use testing, flexion and extension did not change. The examiner opined that the Veteran had less movement than normal, weakened movement, excess fatigability, incoordination and impaired ability to execute skilled movements smoothly, pain on movement, and swelling. There was localized tenderness or pain to palpation of the joint. Muscle strength testing was 4/5 (active movement against some resistance) on hip flexion, extension, and abduction. There was no ankylosis, malunion or nonunion of the femur, or flail hip joint. It was noted that the Veteran occasionally walked with a cane. X-rays did not show degenerative or traumatic arthritis. The diagnosis was chronic hip strain. The examiner opined that the hip condition did not impact the Veteran's ability to work. It was noted that she could ride an exercise bike and use the elliptical machine under guidance of a trainer, but did not participate in sports or other recreational activities. In a December 2012 statement, the Veteran reported that she had bilateral hip pain and sometimes had to sit down while walking when the pain became intense. She said she recently went to Brockton Hospital to get an X-ray and was prescribed patches and Ibuprofen for the pain. She attached prescription notes from Signature Healthcare; X-rays were ordered and she was prescribed Ibuprofen and Lidoderm patches in November 2012. In this case, the Board finds that there is some evidence supporting a 20 percent evaluation for the Veteran's right hip symptomatology under Diagnostic Code 5253 for limitation of abduction with motion lost beyond 10 degrees. Beginning March 2007, physical therapy records showed that active abduction was limited to 10 degrees on one occasion and limited to 8 degrees during a March 27, 2007 physical therapy session. A September 2011 physical therapy record noted that muscle strength was normal except for in abduction, which was 3+/5. Furthermore, the November 2011 VA examiner noted that abduction was lost beyond 10 degrees. There also is evidence that does not support a 20 percent rating. In October 2004, range of right hip motion was normal. In 2007, although active abduction motion was lost beyond 10 degrees, passive abduction was not. In September 2008, it was noted that range of motion was only slightly diminished. In November 2009, abduction was limited to only 30 degrees. While the Veteran has consistently complained of pain and an inability to stand or walk for long periods of time, on balance, the Board finds that objective findings addressing the extent of her limitation of hip motion prior to the March 27, 2007 finding of abduction limited to 8 degrees are more persuasive than her complaints of pain. Mitchell. That is, the objective examination reports which showed a range of abduction greater than 10 degrees preponderate against the assignment of a rating in excess of 10 percent prior to that March 27, 2007 date. The Board does find, however, that effective March 27, 2007, that a 20 percent evaluation is in order because of the decreased range of right hip abduction as referenced above. At no point, however, has the Veteran's right hip disability warranted an evaluation greater than 20 percent during the relevant time period. To warrant a higher 30 percent rating under Diagnostic Code 5252, flexion must be limited to 30 degrees. Here, at worst, right hip flexion was limited to 90 degrees in November 2011. As regards the DeLuca factors, the Board acknowledges the evidence of pain on motion and the Veteran's functional limitations and has considered these factors in the assignments discussed above. Increased ratings, however, are not warranted based on these factors. In this regard, the January 2008 and November 2011 VA examiners indicated that there was no additional limitation of motion with repetitive testing. Based on this evidence, the Board finds insufficient medical evidence to support that the Veteran's pain, weakness, or fatigability is so disabling as to actually or effectively limit flexion of the thigh to such an extent as to warrant assignment of a higher rating under 38 C.F.R. § 4.71a , Diagnostic Code 5252. Furthermore, the evidence does not indicate any right hip ankylosis, flail hip joint, or impairment of the femur. Therefore, higher ratings are not warranted under Diagnostic Codes 5250, 5254, or 5255. In reaching these decisions, the Board considered the Veteran's lay statements. The Veteran is competent to report her observations with regard to the severity of her right hip disability, including reports of pain and limited mobility. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board also finds her statements to be credible and consistent with the ratings assigned. To the extent she argues her symptomatology is more severe, her statements must be weighed against the other evidence of record. Here, the Board finds the specific examination findings of trained health care professionals to be of greater probative weight than the Veteran's more general lay assertions. As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. The discussion above reflects that most of the right hip symptoms described by the Veteran are contemplated by the applicable rating criteria. Limitation of motion is broad enough to encompass functional limitation due to pain, stiffness, and weakness. Although the Veteran has described difficulty sleeping due to pain, which is not specifically contemplated in the rating criteria, the evidence does not reflect that there has been marked interference with employment or frequent hospitalization. Although the evidence indicates that her mobility is affected, her work is sedentary and she has not reported fatigue or daytime sleepiness impacting her ability to work. Furthermore, the November 2011 VA examiner opined that her hip disorder did not impact her ability to work. The Board finds that the degree of impairment in this case does not rise to the level that application of the regular schedular standards are impractical. Therefore, referral for consideration of an extraschedular rating for residuals of a right hip injury is not warranted. 38 C.F.R. § 3.321(b)(1) . The Board acknowledges that in the recent case of Johnson v. Shinseki, the Court found that VA's disability-by-disability interpretation of 38 C.F.R. § 3.321(b)(1) was consistent with its statutory and regulatory scheme. __Vet. App. __, No. 10-1785, 2013 WL 1224810, *6 (Vet. App. March 27, 2013). However, even if the Board considers the Veteran's combined symptomatology resulting from her service-connected disabilities (i.e., right and left hip conditions), there is no evidence of marked interference with employment or frequent hospitalization. Hence, referral for consideration of an extraschedular rating would not be warranted even on a combined basis. The Board has also considered the Court's decision in Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). In Rice, the Court held that a claim for total disability rating based on individual unemployability is part of an increased rating claim when such claim is raised by the record. Here, however, the Veteran has not claimed nor does the evidence indicate that she is unemployable due to her service-connected right hip disability. The Board notes that records from the Social Security Administration indicate that she applied for disability benefits, in part, due to a hip disability; however, in 2007, she was found not to be disabled. In September 2011, she reported that she was working in the contracting field. Accordingly, a claim of entitlement to a total disability evaluation based on individual unemployability due to right hip disability is not deemed to be a component of the current appeal. In this case, the Board concludes that a rating in excess of 10 percent for residuals of right hip injury is not warranted from August 30, 2004 to March 26, 2007; that a 20 percent rating is warranted from March 27, 2007, and that rating in excess of 20 percent is not warranted from November 21, 2011. In reaching these decisions, the Board has favorably applied the benefit-of-the-doubt doctrine; however, the Board finds that the preponderance is against assignment of any higher ratings. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER For the period from August 30, 2004 to March 26, 2007, entitlement to an initial evaluation above 10 percent for residuals of a right hip injury is denied. For the period from March 27, 2007 to November 20, 2011, entitlement to an initial 20 percent evaluation, but no higher, for residuals of right hip injury is granted, subject to the laws and regulations governing the payment of monetary benefits. For the period from November 21, 2011, entitlement to an evaluation in excess of 20 percent for residuals of right hip injury is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs