Citation Nr: 1314252 Decision Date: 04/30/13 Archive Date: 05/15/13 DOCKET NO. 10-00 215A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUE Entitlement to a rating in excess of 10 percent for right hip trochanteric bursitis with degenerative changes. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from April 1985 to May 1991 and from January 2006 to January 2007. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the Reno, Nevada Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, the RO granted service connection for right hip trochanteric bursitis with degenerative changes, rated 10 percent, effective October 24, 2008. The Veteran's claims file is currently in the jurisdiction of the Sioux Falls, South Dakota RO. In January 2011, a videoconference hearing was held before the undersigned. A transcript of the hearing is associated with the claims file. In March 2011 and in June 2012 the Board remanded this matter for further development. The Veteran had also been pursuing an appeal in the matter of service connection for residuals of a right knee injury. A June 2012 rating decision granted service connection, and assigned a rating and effective date, for such disability. Therefore, that matter is no longer before the Board. FINDING OF FACT At no time during the appeal period is the Veteran's service-connected right hip trochanteric bursitis with degenerative changes disability shown to have been manifested by flexion limited to 30 degrees or less, or abduction limited to motion lost beyond 10 degrees. CONCLUSION OF LAW A rating in excess of 10 percent is not warranted for the Veteran's right hip trochanteric bursitis with degenerative changes disability. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (Codes) 5010, 5252, 5253 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (including as amended effective May 30, 2008, 73 Fed. Reg. 23353 (April 30, 2008)). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Mayfield v. Nicholson, 444 F 3d. 1328 (Fed. Cir. 2006). This appeal is from an initial rating assigned with a grant of service connection. The statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, statutory notice has served its purpose, and its application is no longer required because the claim has been substantiated. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The November 2009 statement of the case (SOC), and August 2011 and December 2012 supplemental SOCs (SSOCs) provided notice on the "downstream" issue of an increased initial rating, and readjudicated the matter after the Veteran had opportunity to respond. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). She has not alleged any prejudice from a notice defect. See Goodwin v. Peake, 22. Vet. App. 128 (2008). The Veteran's pertinent treatment records have been secured. She was afforded VA examinations in April 2009, July 2011, and September 2012. The September 2012 examination report contains sufficient clinical findings, and informed discussion, and is adequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007) The Board finds that there has been substantial compliance with the Remand directives. See D'Aries v. Peake, 22 Vet. App. 97 (2008). VA's duty to assist the Veteran in the development of facts pertinent to her claim is met. Legal Criteria, Factual Background, and Analysis Initially, the Board notes that it has reviewed all of the evidence in the Veteran's claims file and in Virtual VA, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Disability ratings are determined by application of a schedule of ratings, based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. 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. Where there is a question as to which of two evaluations applies, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for such rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In a claim disagreeing with the initial rating assigned with a grant of service connection, as here, separate ratings may be assigned for separate periods of time, based on the facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's service-connected right hip disability is currently rated under Codes 5010-5253 (for traumatic arthritis with painful motion and some thigh impairment). Arthritis shown by x-ray is rated based on limitation of motion of the affected part under the appropriate code for the affected joint. When there is arthritis with at least some limitation of motion, but which would be rated noncompensable under a limitation of motion code, a 10 percent rating may be assigned for each major joint. 38 C.F.R. § 4.71a, Codes 5003, 5010. Limitation of hip motion is rated under Codes 5251, 5252, and 5253 (and 5250 if there is ankylosis; here, there is none). Notably, of these, only Codes 5252 and 5253 provide for ratings in excess of 10 percent. Under Code 5252 (for limitation of flexion), a 20 percent rating is warranted where flexion is limited to 30 degrees, a 30 percent rating is warranted where the limitation is to 20 degrees; and a 40 percent rating is warranted where the limitation is to 10 degrees. Under Code 5253, a 20 percent evaluation is warranted where there is limitation of abduction, motion lost beyond 10 degrees. 38 C.F.R. § 4.71. Normal range of motion of the hip is from 0 to 125 degrees of flexion and 0 to 45 degrees of abduction. 38 C.F.R. § 4.71, Plate II. 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. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which the case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). On April 2009 VA joints examination, the Veteran reported that she had a gradual onset of right hip symptoms while stationed in Iraq, and was on physical (limited duty) profile throughout her active duty. She reported that she continued to have right hip pain and could not sleep on her right side because of the pain. She was unable to run because of right hip pain. She had pain with walking, and could not wear heels 21/2 inches high or higher because they aggravated the right hip pain. The examiner noted (regarding the right hip) that there was no deformity, giving way, instability, weakness or episodes of dislocation or subluxation, or locking. There was pain, stiffness, incoordination and decreased speed of joint motion. There were no effusions, or symptoms of inflammation of the right hip. There were moderate flare-ups of joint disease that occurred weekly and would last one to two days. The Veteran had a shuffling gait and decreased range of motion. There were no constitutional symptoms of arthritis, or incapacitating episodes of arthritis. She could stand up to one hour, and walk one to three miles. On physical examination, her gait was normal. There was tenderness, weakness, and guarding of movement. Right hip flexion was to 125 degrees, extension to 30 degrees, and abduction to 40 degrees. She could not cross her right leg over her left leg. She could toe-out 15 degrees. There was no objective evidence of pain following repetitive motion or additional limitations after three repetitions of range of motion. X-rays of the hips and pelvis showed minimal symmetrical degenerative changes. The diagnosis was right trochanteric bursitis (with pain and decreased motion). It was noted that the Veteran was employed as an accountant (full-time). She had not missed any time from work during the last 12-month period due to her right hip disability. The impact of her right hip disability on occupational activities was decreased mobility and pain. She stated that she must take breaks from sitting to walk around a little because the right hip becomes stiff and achy. It was noted that her right hip had a mild effect on activities such as chores, shopping and driving, a moderate effect on traveling and dressing, and a severe effect on exercise and recreation. She stated that she takes breaks with shopping and does not shop as long as previously. She cannot hike, run, play softball, or volleyball. She must stop and stretch with driving and motorcycle riding. She has discomfort with long plane flights. She has trouble donning shoes and socks. On July 2011 VA joints examination, the examiner focused primarily on the Veteran's right knee disability, providing only ranges of motion for the Veteran's hips. Right hip flexion was to 110 degrees, extension to 20 degrees and abduction to 30 degrees. She could cross her right leg over her left leg. She could toe-out 15 degrees. There was objective evidence of pain following repetitive motion. There were no additional limitations after three repetitions of range of motion. In a September 2012 VA Hip and Thigh Conditions Disability Benefits Questionnaire (DBQ) (pursuant to June 2012 remand), it was noted that the Veteran had degenerative joint disease of the right hip (X-rays in 2008 showed right hip arthritis.). She reported that running and other impact activities produced right hip pain. The pain was moderately severe, and she is unable to sleep on the right side. She reported difficulty climbing stairs. She had received three cortisone injections (the annual maximum), which she reported provided only temporary relief. She reported worsening of right hip pain with cooler weather. She reported limitations with impact and weight bearing activities due to pain. She stated that the baseline level of pain varies; at its best it is a 3 and at its worst it reaches a 7. Flare-up pain is a 10 constantly during the flare-up. Right hip flexion was to 110 degrees, with objective evidence of painful motion beginning at 80 degrees; extension ended at greater than 5 degrees, with objective evidence of painful motion at 5 degrees. There was no abduction lost beyond 10 degrees; and abduction was not limited such that the Veteran could not cross her legs. Rotation was not limited such that she could not toe-out more than 15 degrees. After three repetitions right hip flexion was to 110 degrees, extension ended at 5 or greater, there was no abduction loss beyond 10 degrees; and rotation was not limited such that the Veteran could not toe-out more than 15 degrees. She did not have additional limitation in range of motion of the right hip following repetitive-use testing. There was functional loss and/or functional impairment of the right hip and thigh that resulted in less movement than normal, weakened movement, pain on movement, and interference with sitting, standing and or weight-bearing. There was localized tenderness or pain to palpation of the right hip. On muscle strength testing, right hip flexion was 4/5, abduction was 4/5, and extension was 5/5. There was no ankylosis, malunion or nonunion of the femur, flail hip joint or leg length discrepancy. She had not had hip surgery, and did not have any scars related to the right hip disability. There were no other pertinent physical findings, complications, conditions, signs and/or symptoms related to her right hip disability. She did not require use of an assistive device. The pelvis was symmetric with minimal degenerative change noted, with no acute abnormality. The Veteran reported that her right hip disability impacts her ability to work. She stated that she is employed at VA and works in accounting. Her position is primarily sedentary and the prolonged sitting increases the pain and stiffness in her right hip. She stated that the position does require some bending, and stooping in the process of handling files, and she reported that she has significant difficulty with bending and stooping due to pain and stiffness of the right hip. The 90 percent rating currently assigned for x-ray confirmed arthritis and some limitation of motion of the right hip is the maximum schedular rating afforded for a single joint under Codes 5003, 5010. Accordingly, the analysis must proceed to consideration of Codes 5252 and 5253 (the diagnostic codes that allow for a rating in excess of 10 percent given the pathology shown). The record does not show that at any time during the period under consideration the Veteran's right hip disability was manifested by limitation of flexion to 30 degrees, so as to warrant the next higher (20 percent) rating under Code 5252 or that abduction was limited to the extent of motion lost beyond 10 degrees, so as to warrant the next higher (20 percent) rating under Code 5253. On April 2009 examination the Veteran's right hip flexion was to 125 degrees and abduction was to 40 degrees; on July 2011 VA examination right hip flexion was to 110 degrees and abduction was to 30 degrees; and on September 2012 VA DBQ evaluation, right hip flexion was to 110 degrees and it was noted that motion beyond 10 degrees was not lost on abduction. While examination found some further limitations due to pain, and repetitive use, as well as some weakness, such factors did not result in additional loss of function equivalent to any criteria for the next higher rating. Accordingly, a higher rating under Codes 5252 or 5253 is not warranted. There is no evidence of ankylosis of the right hip, of a fail joint, or impairment of the femur, so as to warrant consideration of Codes 5250, 5254, and 5255. The Board has also considered whether referral for extraschedular consideration under 38 C.F.R. § 3.321(b) is indicated. The evidentiary record does not show (nor has the Veteran alleged) any manifestations or associated functional impairment due to the right hip disability that are not encompassed by the schedular criteria. The limitations she has described such as some impairment in bending/stooping, stiffness with prolonged sitting, inability to run, some difficulty climbing stairs, etc. are all encompassed in the criteria for the 10 percent rating assigned. Therefore, those criteria are not inadequate, and referral for extraschedular consideration is not warranted. 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111 (2008). Finally, as the record shows that the Veteran has been employed throughout. Therefore, the matter of entitlement to a total disability rating based on individual unemployability is not raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The preponderance of the evidence is against this claim; consequently, the benefit of the doubt doctrine does not apply. The appeal for an increased rating must be denied. See Gilbert, 1 Vet. App. at 55. ORDER A rating in excess of 10 percent for a right hip bursitis is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs