Citation Nr: 1313239 Decision Date: 04/19/13 Archive Date: 05/02/13 DOCKET NO. 10-09 142 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a rating in excess of 30 percent from June 1, 2010 to February 25, 2012 and in excess of 50 percent thereafter for residuals of a right hip replacement. ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty from February 1997 to October 2000. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee that denied a rating in excess of 10 percent for degenerative joint disease of the right hip. In May 2010, while the appeal to the Board was pending, the RO granted a temporary total rating for a period of convalescence following surgery on the right hip, effective April 2 to July 31, 2009, and thereafter continued the prior 10 percent rating, effective August 1, 2009. See 38 C.F.R. § 4.30 (2012). In May 2011, the Board remanded the case for additional development. In March 2012, while the case was in remand status, the Appeals Management Center (AMC) granted a total (100 percent) rating for a right hip replacement, effective April 2, 2009 to May 31, 2010, with a 30 percent rating thereafter under 38 C.F.R. § 4.71a, Diagnostic Code 5054. The RO also granted service connection for a painful surgical scar of the right buttock, evaluated as 10 percent disabling under 38 C.F.R. § 4.118, Diagnostic Code 7804 (2012). The Veteran has not expressed disagreement with the 10 percent rating assigned for his surgical scar. See 38 C.F.R. §§ 20.200, 20.201 (2012). In December 2012, the Board denied a rating in excess of 10 percent prior to April 2, 2009 and remanded the issue of a rating in excess of 30 percent for residuals of a right hip replacement effective June 1, 2010. Accordingly, the issue on appeal has been characterized as set forth on the title page. When the Board remanded this case in May 2011 and December 2012, it referred to the RO the matter of the Veteran's entitlement to service connection for reduced mental clarity and/or a psychiatric disorder as secondary to his service-connected right hip disability. As it does not appear that any action has been taken on that matter, it is again referred to the RO. Finally, The Board notes that the United States Court of Appeals for Veterans Claims (Court) held in Rice v. Shinseki, 22 Vet. App. 447 (2009) that every claim for a higher evaluation includes a claim for a total rating based on individual unemployability (TDIU) where the Veteran claims that his service-connected disabilities prevent him from working. The Board notes that the Veteran is currently employed. As such, the Board finds that Rice is not applicable to the current appeal. There must be cogent evidence of unemployability in the record. See Rice, 22 Vet. App. 447, citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). Thus, any further discussion of an issue of entitlement to TDIU is not necessary. See Rice, supra. FINDINGS OF FACT 1. From June 1, 2010 to February 25, 2012, the Veteran's right hip prosthesis was properly positioned in good condition with no osseous deficits. Residuals manifested as greatly decreased hip pain with only a slightly less than normal range of motion. The Veteran was able to stand for indefinite periods of time, walk several miles without an assistive device, and return to work full time. 2. Effective February 25, 2012, the residuals of the Veteran's right hip replacement manifested as a moderately severe weakness and pain but with a normal range of motion. The Veteran was unable to sit and concentrate for long periods of time because of hip pain, used over the counter medication for pain, used a cane for ambulation, and was unable to perform some physical activities at work. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent from June 1, 2010 to February 25, 2012 and in excess of 50 percent thereafter for residuals of a right hip replacement are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, Diagnostic Code 5054 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA must 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. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The 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). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Board finds that VA has satisfied its duty to notify. In letters sent to the Veteran in December 2006, November 2007, and February 2009, the AOJ informed the Veteran that, in evaluating his disability, it would consider evidence of the nature and symptoms of his condition; the severity and duration of his symptoms; and the impact of his condition and symptoms on employment. He was notified of the general manner in which disability ratings are assigned, and examples of the types of evidence he could submit, or ask VA to obtain, were also provided. See, e.g., Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (holding that generic notice in response to a claim for an increased rating is all that is necessary). No corrective action is necessary. VA must also make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c), (d) (2012). VA must help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination and/or opinion when necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Board finds that the duty to assist has been fulfilled with respect to the matter that is currently being adjudicated. The Veteran's service treatment records have been obtained, as have records of relevant post-service private medical care. He has also been examined in March 2010, July 2011, February 2012, and January 2013. The Veteran has not provided releases for any additional private evidence. No further development action is required. The Veteran contends that the residuals of a total right hip replacement in April 2009 are more severe than are contemplated by the current staged ratings. Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. When making determinations as to the appropriate rating to be assigned, VA must take into account the veteran's entire medical history and circumstances. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). If there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). VA regulations define disability of the musculoskeletal system primarily as "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." 38 C.F.R. § 4.40. Section 4.40 provides that: The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is 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. With regard to disorders of the joints, applicable regulations provide that "the factors of disability reside in reductions of their normal excursion of movements in different planes." 38 C.F.R. § 4.45. To that end, the regulations provide that, when rating disabilities of the joints, inquiry will be directed to considerations such as: (a) Less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.). (b) More movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.). (c) Weakened movement (due to muscle injury, disease, or injury of peripheral nerves, divided or lengthened tendons, etc.). (d) Excess fatigability. (e) Incoordination, impaired ability to execute skilled movements smoothly. (f) Pain on movement, swelling, deformity or atrophy of disuse. Id. The regulations further provide that instability of station, disturbance of locomotion, and interference with sitting, standing, and weight bearing are also to be considered. Id. § 4.45(f). See also 38 C.F.R. § 4.59 ("The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability"); DeLuca v. Brown, 8 Vet. App. 202 (1995). For a prosthetic replacement of the head of the femur or of the acetabulum, a 100 percent rating is assigned for the one year period following implantation of prosthesis. Thereafter, a 90 percent rating is warranted for painful motion or weakness such as to require the use of crutches. A 70 percent rating is warranted for markedly severe residual weakness, pain, or limitation of motion. A 50 percent rating is warranted for moderately severe residuals of weakness, pain, or limitation of motion. A minimum rating of 30 percent is assigned after the one year period following the prosthetic replacement of hip joint. 38 C.F.R. § 4.71a, Diagnostic Code 5054. Normal range of motion of the hip is zero to 125 degrees flexion and zero to 45 degrees abduction. 38 C.F.R. § 38 C.F.R. § 4.71, Plate II (2012). The Board has also considered whether a higher rating is warranted under a different Diagnostic Code. However, there is no evidence of a fracture of the shaft or surgical neck of the femur, with false joint; or with nonunion, without loose motion, and with weight bearing preserved with the aid of a brace (60 percent under Diagnostic Code 5255). There is also no evidence of ankylosis (Diagnostic Code 5250) or flail joint of the hip (Diagnostic Code 5254). Further, the Board considered the applicability of Diagnostic Codes 5251-5253 for limitation of motion. Although potentially applicable, the evidence showed that rating under these Diagnostic Codes would not provide higher ratings and evaluation of the same manifestations under different diagnostic codes is to be avoided. 38 C.F.R. §§ 4.14, 4.71a, Diagnostic Codes 5250-5255 (2012). The Veteran underwent the placement of a right hip prosthesis in April 2009. Records of private follow-up care and assessments are of record and show that the Veteran participated in physical therapy and made a satisfactory recovery. In March 2010, a VA orthopedic surgeon noted the Veteran's report that his right hip pain improved dramatically after the surgery. The physician noted no instability, pain, stiffness, weakness, or incoordination. The Veteran reported that he could stand for indefinite periods of time and walk one to three miles without assistive devices but with a slight antalgic gait favoring the left hip. Range of motion was 90 degrees flexion, 20 degrees extension, and 45 degrees abduction. The Veteran was able to the right leg over the left and move toes outward 15 degrees. There was no additional loss of function on repetition. X-rays showed proper placement of the prosthesis with no hardware failure, fracture, dislocations, or osseous lesions. Since the surgery, the Veteran lost 12 weeks of work for convalescence but returned to work full time. The surgeon noted a moderate impairment of sports and exercise but no impairment of other activities. In July 2011, a VA physician performed another examination of the Veteran's right hip prosthesis noting substantially identical observations and conclusions. On February 25, 2012, the same physician noted a review of the claims file and the Veteran's report of pain on motion of the right hip and the use of a cane. Range of motion was 125 degrees flexion, greater than 5 degrees extension, greater than 10 degrees abduction with the ability to cross the right leg over the left and toe out 15 degrees. The physician did not observe pain on motion testing or any additional loss of function on repetition. Muscle strength was normal. However, without explanation, the physician concluded that the residuals of the right hip replacement imposed an intermediate degree of residual weakness, pain, and limitation of motion. The physician also noted that the Veteran was unable to sit and concentrate for long periods of time because of hip pain. In January 2013, the same VA physician examined the Veteran for the third time. The Veteran reported continued difficulty sitting and concentrating for long periods of time, use of over the counter medication for pain, occasional use of a cane, and an inability to perform physical activities at work such as pushing, pulling, carrying or lifting. Range of motion was 125 degrees flexion, greater than 5 degrees extension, greater than 10 degrees abduction with the ability to cross the right leg over the left and toe out 15 degrees. The physician did not observe pain on motion testing but noted that there was additional function loss in the form of reduced standing, sitting, and weight bearing endurance after repetitive use. The physician noted pain on palpation of the joint but normal muscle strength. The Board concludes that a rating in excess of 30 percent for residuals of a right hip replacement prior to February 25, 2012 is not warranted. The examination in March 2010 showed greatly decreased hip pain with only a slightly less than normal range of motion. The prosthesis was in place in good condition with no osseous deficits. The Veteran was able to stand for indefinite periods of time and walk several miles without an assistive device. He was able to return to work full time with functional limitations only in exercise and sports. A rating higher than the minimum 30 percent rating was not warranted as the Veteran did not display moderately severe residuals of weakness, pain, or limitation of motion. The Board concludes that a rating in excess of 50 percent, effective February 25, 2012, the date of a VA examination, is not warranted. In that examination, the physician noted improvement in the range of pain-free range of motion but also that the Veteran was using a cane and was unable to sit and concentrate for long periods of time because of hip pain. As the physician concluded that the Veteran displayed an intermediate degree of residual weakness, pain, and limitation of motion, the Board concludes that the residuals are best evaluated as moderately severe. A higher rating for markedly severe residuals is not warranted. Even though the Veteran has difficulty with sitting, standing, and walking endurance and is unable to perform certain manual labor at work, the Veteran is able to continue to work full time in an administrative position. The Veteran occasionally uses over the counter but not prescription medication for pain and occasionally uses a cane but not crutches. There is no lay or medical evidence that he is unable to accomplish most activates of daily living such as driving an automobile or ambulating in and out of the home. Additionally, the Board has considered whether the rating should be referred for extra-schedular consideration. An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). The determination of whether a claimant is entitled to an extra-schedular rating under § 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. There must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, 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. Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. Id. The rating criteria contemplate pain at rest and at motion, muscle weakness, limitation of motion and endurance in the subjective assessments of moderately severe, markedly severe, and sufficiently severe to require the use of crutches without any weight bearing. In this case, the criteria encompass the Veteran's symptoms and limitations and provides for higher ratings for more severe symptoms that are not currently demonstrated in the examination records. Although not enumerated in the criteria, the Board considered the use of medication, support devices, endurance, and physical limitations at work in determining the appropriate subjective description of the disability. The Veteran has not received any follow-up surgical or inpatient care for his well-functioning prosthesis and he is able to work full time at his previous occupation. Therefore, the Board concludes that the rating criteria adequately contemplate the entire range of the Veteran's right hip symptoms and functional incapacities. As the preponderance of the evidence is against higher staged ratings, the "benefit of the doubt" rule is not for application, and the Board must deny the claim. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A rating in excess of 30 percent from June 1, 2010 to February 23, 2012 and a staged rating in excess of 50 percent thereafter for residuals of a right hip replacement is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs