Citation Nr: 1315241	
Decision Date: 05/08/13    Archive Date: 05/15/13

DOCKET NO.  06-02 267	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington


THE ISSUES

1.  Entitlement to an evaluation in excess of 10 percent for left hip synovial chondromatosis with degenerative arthritis (left hip disability), on an extraschedular basis per 38 C.F.R. § 3.321(b)(1) (2012), for the period prior to June 9, 2008.

2.  Entitlement to an evaluation in excess of 30 percent for left hip synovial chondromatosis with degenerative arthritis (left hip disability) as of August 1, 2009.


ATTORNEY FOR THE BOARD

M.W. Kreindler, Counsel



INTRODUCTION

The Veteran served on active duty from June 1980 to September 1987.

This matter came before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision of the Seattle, Washington, Department of Veterans Affairs (VA) Regional Office (RO).

In an October 2008 rating decision, the Veteran was awarded a temporary total disability evaluation based on surgical replacement of the hip, effective from June 9, 2008, to July 31, 2009.  Effective August 1, 2009, his left hip disability was evaluated as 30 percent disabling.  The temporary total disability rating represents a complete grant of the benefit sought for the time period it encompasses.  

In April 2009, the Board remanded this case in order to schedule a Board hearing.  The Veteran, then, withdrew his request for a hearing in a June 2010 letter.

In a September 2010 decision, the Board, in pertinent part, denied entitlement to an evaluation in excess of 10 percent for left hip disability for the period prior to June 9, 2008.  The issues of entitlement to an evaluation in excess of 10 percent for left hip disability on an extraschedular basis for the period prior to June 9, 2008, and entitlement to an evaluation in excess of 30 percent for left hip disability for the period from August 1, 2009, were remanded for further development.

In July 2012, the Board remanded the issues of entitlement to an evaluation in excess of 10 percent for left hip disability on an extraschedular basis for the period prior to June 9, 2008; entitlement to an evaluation in excess of 30 percent for left hip disability for the period from August 1, 2009; and, entitlement to a total disability rating due to individual unemployability (TDIU) as a result of service-connected disabilities.  

In a February 2013 rating decision, the RO granted entitlement to a TDIU, effective June 27, 2005.  The grant of a TDIU constituted a full award of the benefit sought on appeal as to that issue.  See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997).  To date, the Veteran has not submitted a jurisdiction-conferring notice of disagreement as to the down-stream element of effective date within the applicable time period.  Thus, that issue is not currently in appellate status.  Id.

As detailed in the Introduction of the July 2012 Board Remand, the Veteran has submitted statements highlighting his concern that he has not been able to receive treatment for a heart disability with associated gum sores.  It is unclear whether the Veteran wishes to file an additional claim of entitlement to service connection for a heart disability.  To the extent that this issue has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over it.  Thus, it is referred to the AOJ for appropriate action.


FINDINGS OF FACT

1.  For the period prior to June 9, 2008, the Veteran's left hip synovial chondromatosis with degenerative arthritis does not result in marked interference with employment or frequent periods of hospitalization.

2.  For the period from August 1, 2009, there was no showing of moderately severe residuals of weakness, pain or limitation of motion; flexion limited to 10 degrees; unfavorable or favorable ankylosis; a flail joint; or, malunion, nonunion, or fracture of the femur or surgical neck.


CONCLUSIONS OF LAW

1.  For the period prior to June 9, 2008, the criteria for an extraschedular rating for left hip synovial chondromatosis with degenerative arthritis have not been met.  38 C.F.R. § 3.321(b)(1) (2012).

2.  For the period from August 1, 2009, the criteria for a rating in excess of 30 percent for left hip synovial chondromatosis with degenerative arthritis have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5003, 5020, 5054 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).  

Proper notice from VA must inform the claimant of any information and medical or lay 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.  

VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  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); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).

In January 2005, the Veteran was sent a letter pertaining to his increased rating claim.  That communication provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal.  Additional notice was issued to the in November 2010 and August 2012 pertaining to the claim for an increased rating pursuant to the schedular and extraschedular criteria, and such notices also explained what type of information and evidence was needed to establish an effective date.  

The Board acknowledges that, in the present case, complete notice was not issued prior to the adverse determination on appeal.  However, fully compliant notice was later issued in the November 2010 and August 2012 communications, and the claim was thereafter readjudicated in a statement of the case.  Accordingly, any timing deficiency has here been appropriately cured.  Mayfield, 444 F.3d 1328 (Fed. Cir. 2006).  Accordingly, no further development is required with respect to the duty to notify.

Next, VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting him 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.  

The Board also finds that VA has complied with all assistance provisions of VCAA, to include substantial compliance with the instructions in the Board Remands.  D'Aries v. Peake, 22 Vet. App. 97, 105 (2008).  His VA outpatient treatment records, records from the Social Security Administration (SSA), and private treatment records have been obtained.  The Board does not have notice of any additional relevant evidence that is available but has not been obtained.

The Veteran was afforded VA examinations in conjunction with his left hip increased rating claim, which will be discussed below.  The September 2010 Board Remand instructed that the Veteran should be requested to submit evidence of interference with employment or episodes of hospitalization pertaining to his left hip, and information pertaining to past employers; the Veteran did not respond.  As will be discussed below, the Board finds that submission to the Director, Compensation and Pension Service or the Under Secretary for Benefits for extraschedular consideration is not necessary.  

For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claims for an increased ratings for left hip disability.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Extraschedular evaluation for left hip disability for the period prior to June 9, 2008

Initially, the Board notes that entitlement to a total disability rating due to individual unemployability as a result of service-connected disabilities was established effective June 27, 2005.  To date, the Veteran has not expressed disagreement with the effective date assigned.

Pursuant to 38 C.F.R. § 3.321(b)(1), ratings shall be based as far as practicable on the average impairment of earning capacity with the additional proviso that the Secretary shall from time to time readjust the schedule of ratings in accordance with experience.  

To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Director of Compensation and Pension Service, upon field examination submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability.  

An extraschedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture.  An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization.  Id. at 115-116.  When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating.  Otherwise, the schedular evaluation is adequate, and referral is not required.  38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116.

For the period prior to June 9, 2008, a 10 percent schedular disability rating is in effect for left hip synovial chondromatosis with degenerative arthritis per 38 C.F.R. § 4.71a, Diagnostic Code 5020 (synovitis).  Entitlement to a schedular disability rating in excess of 10 percent for the period prior to June 9, 2008, was denied in the Board's September 2010 decision.

In November 2010 VA correspondence to the Veteran, he was requested to submit evidence of interference with employment or episodes of hospitalization, to include information pertaining to past employers and dates of employment, and treatment records.  He did not identify or provide VA with any additional evidence pertaining to interference with employment or episodes of hospitalization, and did not submit any lay statements with regard to this specific aspect of his claim.  

The Board has determined that the evidence of record does not reflect an unusual or exceptional disability pattern that would render application of the regular rating criteria as impractical, nor does the evidence necessitate referral to the Director, Compensation and Pension Service, for an opinion as to whether an extraschedular evaluation is warranted.

For the period prior to June 9, 2008, the evidentiary record does not demonstrate that the symptomatology consistently associated with the service-connected left hip condition is not wholly contemplated by the criteria utilized to assign the schedular evaluation.  The 10 percent schedular rating was assigned to the Veteran's left hip disability for the period prior to June 9, 2008 in contemplation of his symptomatology.  

In this case, the schedular evaluation is adequate.  An evaluation in excess of the assigned 10 percent rating is provided for certain manifestations of the service-connected left hip disability, but the medical evidence for such time period reflects that those manifestations are not present for the period prior to June 9, 2008.  Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the various aspects of the Veteran's disorder. 

The Board finds that Diagnostic Code 5020 (synovitis) is an adequate schedular evaluation for the assigned evaluation.  When substantiated by x-ray findings synovitis is rated as degenerative arthritis.  Per Diagnostic Code 5003, degenerative arthritis is rated on the basis of limitation of motion for the specific joint involved.  The Board determined in September 2010 that the 10 percent rating adequately compensates him for his functional loss due to pain and stiffness, and that range of motion, even in consideration of additional loss with repeated movement, does not nearly approximate that of a 20 percent evaluation per Diagnostic Code 5252 (limitation of motion of flexion of the hip).  Indeed, there is no indication that the Veteran experiences symptoms that are outside the range of that contemplated by the relevant diagnostic codes.  Accordingly, referral for extraschedular consideration is not for application here. 

Increased rating for left hip disability from August 1, 2009

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.  When a question arises as to which of two ratings apply under a particular diagnostic code, the higher rating 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. § 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).  Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods.

It should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination.  

As detailed in the Introduction, a 100 percent rating was assigned, effective June 9, 2008, pursuant to 38 C.F.R. § 4.30 and 38 C.F.R. § 4.71a, Diagnostic Code 5054, due to left hip total replacement; and, a 30 percent disability rating was assigned, effective August 1, 2009.  See 38 C.F.R. § 4.71a, Diagnostic Code 5055.

Pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5054, a 100 percent rating is warranted for 1 year following implantation of prosthesis in the case of prosthetic replacement of the head of the femur or of the acetabulum.  Note (1) states that the 100 percent rating for 1 year following implantation of prosthesis will commence after initial grant of the 1-month total rating assigned under 38 C.F.R. § 4.30 following hospital discharge.  Note (2) states that special monthly compensation is assignable during the 100 percent rating period the earliest date permanent use of crutches is established.  

In a December 2010 rating decision, special monthly compensation was established from June 9, 2008 to August 1, 2009.  Following a total rating for 1 year, a 30 percent rating is the minimum rating for hip replacement (prosthesis).  A 50 percent rating is warranted for moderately severe residuals of weakness, pain or limitation of motion; a 70 percent rating is warranted for markedly severe residual weakness, pain or limitation of motion following implantation of prosthesis; and a 90 percent rating is warranted for painful motion or weakness such as to require the use of crutches following implantation of prosthesis.  

Normal range of hip flexion is from 0 to 125 degrees.  Normal hip abduction is from 0 to 45 degrees.  38 C.F.R. § 4.71a, Plate II.  Under Diagnostic Code 5251, a maximum 10 percent disability rating is warranted for thigh limitation of extension limited to 5 degrees. 

Limitation of motion of flexion of the hip is rated under Diagnostic Code 5252.  A 30 percent rating is assigned for flexion in the thigh limited to 20 degrees.  A 40 percent rating is assigned for flexion in the thigh limited to 10 degrees. 

Pursuant to Diagnostic Code 5003, arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint or joints involved.  When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  In the absence of limitation of motion, x-ray evidence of involvement of 2 or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations warrants a 20 percent evaluation.  X-ray evidence of involvement of 2 or more major joints or 2 or more minor joints warrants a 10 percent evaluation.  See 38 C.F.R. § 4,71a, Diagnostic Code 5003.

With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints.  Muscle spasm will greatly assist the identification.  The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight- bearing and, if possible, with the range of the opposite undamaged joint.  38 C.F.R. § 4.59.

A September 2010 x-ray examination reflects that left total hip arthroplasty appears in place and intact without signs of loosening or dehiscence.  Soft tissues were unremarkable.  

In January 2011, the Veteran's left hip was evaluated by a VA examiner.  He reported walking with a cane when walking more than short distances but he tried to walk 2 miles regularly in order to stay in shape, which usually exacerbated the pain in his left hip.  He took no medications.  Motion was limited secondary to pain and there was no additional limitation of motion during flare-ups.  With physical exertion, his left hip felt weak and fatigued and he experienced muscle spasm.  There was no incoordination.  Lack of endurance was due to pain.  

On physical examination, he had mild, waddling, left antalgic gait.  There was mild to moderate tenderness to palpation over the left hip joint.  Flexion was 0 to 95 degrees, extension was 0 to 10 degrees, adduction was 0 to 10 degrees, abduction was 0 to 40 degrees, external rotation was 0 to 45 degrees, and internal rotation was 0 to 15 degrees.  Repetitive motion produced moderate pain and mild spasm with all degrees of adduction, abduction, external rotation, internal rotation, and extension, but does not further limit the range of motion movement.  With flexion, there was no pain on initial movement, but moderate pain occurred after 80 degrees flexion without additional limitation of the range of motion.  There was no incoordination.  The examiner's assessment was residuals of total left hip arthroplasty with left leg longer than right, strain, and limitation of motion.  The examiner commented that the Veteran was able to perform his activities of daily living.  

As noted previously, a 30 percent disability rating is in effect residuals of left hip replacement surgery pursuant to Diagnostic Code 5054.  A 50 percent rating is not warranted as moderately severe residuals of weakness, pain or limitation of motion has not been shown.  While objective examination clearly shows weakness and pain affecting the hip and limitation of motion with pain, the findings do not reflect moderately severe residuals.  As detailed, the January 2011 VA examiner described the Veteran's pain as moderate on repetitive motion but there was no further limitation of range of motion. 

Considering the DeLuca factors and the evidence of record, the Board finds that the current 30 percent rating more than adequately compensates the Veteran for any functional loss due to pain and weakness.  DeLuca, 8 Vet. App. at 204-7.  Again, the examiner found no additional loss of motion on repetitive motion, and there was no incoordination.  Moreover, the Veteran was able to perform his activities of daily living and denied any flare-ups of left hip symptoms.  

The evidence of record shows that that no time during the applicable appeal period did the Veteran have flexion limited to 10 degrees or less.  At the most recent VA examination, flexion was to 95 degrees, albeit with pain at 80 degrees.  Thus, there is no basis for a rating in excess of 30 percent pursuant to Diagnostic Code DC 5252 for the Veteran's left hip disability from August 1, 2009. 

The Board has considered other applicable diagnostic codes but finds that there is no basis for a higher rating.  This is because the evidence of record does not show that the Veteran has ankylosis, a flail joint, or impairment of the femur such that a fracture of the shaft or anatomical neck nonunion or malunion such as to enable a higher rating under Diagnostic Codes 5250, 5254, 5255. 

The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  The Board finds that the severity of the Veteran's service-connected disability is fully contemplated by the rating criteria.  There is nothing exceptional about the Veteran's service-connected disability.  The degree of disability exhibited is contemplated by the rating schedule, specifically residuals of left hip replacement.  See 38 C.F.R. § 4.71a, Diagnostic Code 5054.  Thus, the Board finds that the threshold test is not met for referral for extraschedular consideration for the period from August 1, 2009.  38 C.F.R. § 4.16(b); Thun v. Peake, 22 Vet. App. 111 (2008).

Where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  However, the evidence reflects that his symptoms have remained relatively constant throughout the course of the period on appeal and, as such, additional staged ratings are not warranted.


ORDER

For the period prior to June 9, 2008, entitlement to an evaluation in excess of 10 percent for left hip synovial chondromatosis with degenerative arthritis on an extraschedular basis per 38 C.F.R. § 3.321(b)(1) is denied.

For the period from August 1, 2009, entitlement to an evaluation in excess of 30 percent for left hip synovial chondromatosis with degenerative arthritis is denied.



____________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs