Citation Nr: 1315832 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 08-09 139 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for right inferior pubic ramus stress fracture (referred to hereinafter as "right pelvis fracture") for the period beginning July 8, 2008. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD T. Adams, Counsel INTRODUCTION The Veteran served on active duty from September 2004 to June 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. In January 2012, the Board denied an initial rating in excess of 10 percent for a right pelvis facture for the period through July 7, 2008, and remanded for further development the issue of a rating in excess of 10 percent for a right pelvis fracture for the period beginning July 8, 2008. The Board notes that, in Rice v. Shinseki, the Court held that a TDIU claim cannot be considered separate and apart from an increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Instead, the Court held that a TDIU claim is an attempt to obtain an appropriate rating for a service-connected disability. The Court also found in Rice that, when entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. The record in this case indicates that the Veteran has essentially asserted that she is not employable solely by reason of her claimed service-connected disabilities. While a December 2012 memorandum from the Appeals Management Center reflects that this issue was referred back to the RO for development and consideration, a review of the claims file does not show that this issue has been adjudicated by the RO. The Board has reviewed the Veteran's claims file and the record maintained in the Virtual VA paperless claims processing system. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT For the period from July 8, 2008 to the present, the competent medical evidence of record does not demonstrate that the Veteran's right pelvis fracture was manifested by flexion of the thigh limited to 30 degrees or less or abduction of the thigh lost beyond 10 degrees. CONCLUSION OF LAW For the period from July 8, 2008 to the present, the criteria for a rating in excess of 10 percent for a right pelvis fracture have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2. 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5250, 5252, 5253 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify & to Assist Before addressing the merits of the remaining issue on appeal, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. This appeal arises from disagreement with the initial evaluation following the grant of service connection for right inferior pubic ramus stress fracture. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Regardless, the RO provided notice as to how VA assigns disability ratings in a letter sent to the Veteran in April 2010. Under the VCAA, VA also has a duty to assist the Veteran in the development of a claim. This includes assisting the Veteran in procuring service treatment records (STRs) and other relevant treatment records and providing a VA examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, VA obtained the Veteran's STRs. Also on file are pertinent outpatient treatment records. The file also contains statements and contentions made by the Veteran and her representative. The Board notes that neither the Veteran nor her representative has indicated any symptomatology relevant to her increased rating claim or have alleged that the right pelvis disability has increased in severity since the last examination. Thus, the Board finds that remand for an additional VA examination is not required in this instance. Accordingly, the Board concludes that during the administrative appeal process, the Veteran was provided the information necessary such that the purposes of the notification have been met. Moreover, there has been substantial compliance with the 2012 Board remand instructions and additional outpatient treatment records have been associated with the claims file; therefore, no further remand is required. See also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall where Board's remand instructions were substantially complied with). Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. Increased Rating Claim In this case, the Veteran claims that his currently service-connected right pelvis fracture is more severe than indicated by her 10 percent evaluation. The Board points out that disability evaluations are based upon the average impairment of earning capacity as contemplated by the schedule for rating disabilities. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (2002). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. See Francisco v. Brown, 7 Vet. App. 55 (1994). In cases in which a reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the Veteran. See 38 C.F.R. § 4.3 (2012). VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating." See Fenderson v. West, 12 Vet. App 119 (1999). In this case, the evidence of record does not establish additional, distinct time periods in which the issue on appeal resulted in symptoms that would warrant staged ratings. Where 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 for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2012). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3 (2012). In evaluating the Veteran's right pelvis fracture higher rating claim, the Board also must consider a Veteran's pain, swelling, weakness, and excess fatigability when determining the appropriate rating for a disability using the limitation of motion diagnostic codes. 38 C.F.R. §§ 4.40, 4.45; see Johnson v. Brown, 9 Vet. App. 7, 10 (1996); DeLuca v. Brown, 8 Vet. App. 202 (1995). Within the January 2012 Board decision, the Board examined the Veteran's STRs and VA examination reports. As such, all evidence discussed in the January 2012 Board decision is incorporated herein. The Veteran's service-connected right pelvis fracture currently is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5099-5003. 99 in the first four digits indicates that the Veteran's disability is not listed in the Schedule for Rating Disabilities, while 50 indicates that it is related most closely to the listed musculoskeletal disabilities. See 38 C.F.R. §§ 4.20, 4.27. Degenerative arthritis (hypertrophic or osteoarthritis), the subject of Diagnostic Code 5003, is the disability found to be most analogous. Id. Under Diagnostic Code 5003, evaluations for degenerative arthritis established by X-ray findings shall be rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. If, however, evaluation on this basis results in a noncompensable rating, the Veteran shall be awarded a 10 percent rating for each major joint or group of minor joints affected by limitation of motion, to be combined but not added. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of any limitation of motion, X-ray evidence showing involvement of 2 or more major joints or 2 or more minor joint groups warrants a 10 percent rating, and the same with occasional incapacitating exacerbations warrants a 20 percent rating. 38 C.F.R. § 4.71a, Diagnostic Codes 5250 through 5253, address hip/thigh limitation of motion. Under Diagnostic Code 5251, extension of the thigh limited to 5 degrees results in the maximum rating of 10 percent. A 10 percent rating under Diagnostic Code 5252 is for flexion of the thigh limited to 45 degrees. A 20 percent rating requires flexion limited to 30 degrees, while a 30 percent rating requires flexion limited to 20 degrees. The maximum rating of 40 percent is reserved for flexion limited to 10 degrees. Pursuant to Diagnostic Code 5253, impairment of the thigh manifested by limitation of adduction, with the inability to cross legs, or rotation, with the inability to toe-out more than 15 degrees on the affected leg, warrants a 10 percent rating. The maximum 20 percent rating is mandated 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. § 4.71a, Plate II. Ankylosis of the hip, rated according to Diagnostic Code 5250, that is favorable combined with 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 under this provision requires intermediate ankylosis. Unfavorable or extremely unfavorable ankylosis where the foot does not reach the ground and crutches are needed warrants the maximum 90 percent evaluation and entitles the Veteran to special monthly compensation. Other Diagnostic Codes pertaining to disabilities of the hip/thigh include Diagnostic Code 5254 for hip flail joint and Diagnostic Code 5255 for impairment of the femur as evidenced by malunion, nonunion with and without loose motion, or fractures to include with false joint. For the period from July 8, 2008 to the present, the pertinent evidence of record includes VA treatment records dated from October 2007 to May 2012. An April 2011 report documents that a 2007 X-ray revealed left-sided sacroiliitis without erosions or joint space narrowing. In a December 2011 report, the Veteran complained of pelvic pain that radiated to her lower back for which she took Toradol which provided some pain relief. A May 2012 report reflects a complaint of left-sided pelvic pain. A diagnosis of endometriosis was noted. The remaining medical evidence is void of any treatment or complaints pertaining to the Veteran's right pelvis fracture. Based on the evidence of record, the Board finds that a rating in excess of 10 percent for the Veteran's right pelvis disability, for the period from July 8, 2008 to the present, is not warranted under any applicable diagnostic code. Since July 8, 2008, the competent medical evidence of record does not show that the Veteran has ankylosis of the right hip, limitation of motion of the right hip manifested by flexion limited to 30 degrees, limitation of abduction of the thigh motion lost beyond 10 degrees, flail joint of the right hip, or impairment of the femur. Therefore, Diagnostic Codes 5250, 5252, 5253, 5254 and 5255 cannot serve as a basis for an increased rating. 38 C.F.R. § 4.71a. While Diagnostic Code 5251 which pertains to limitation of extension of the thigh is potentially applicable, the maximum schedular rating under that code is 10 percent. As the Veteran is already in receipt of a 10 percent rating, Diagnostic Code 5251 cannot serve as a basis for an increased rating. The Board also finds that the Veteran is not entitled to an increased rating for her right pelvis disability under Diagnostic Code 5003. Limitation of motion is conceded. However, even presuming there is limited albeit noncompensable motion, the next highest rating of 20 percent would be permitted only if more than one major joint or group of minor joints were affected. Only the Veteran's right hip/thigh is affected here. The hip constitutes one major joint. 38 C.F.R. § 4.45. In addition, the Board further finds that there is no additional limitation of motion due to pain, fatigue, or similar symptoms as contemplated by DeLuca. VA treatment records reflect the Veteran's complaints of right pelvis pain. However, the Board finds that the Veteran's complaints of pain and functional impairment are consistent with, and encompassed by, the assigned 10 percent disability rating for the period from July 8, 2008 to the present. As such, the preponderance of the evidence is against a rating in excess of 10 percent, for the period from July 8, 2008, to the present. In reaching the above conclusions, the Board has also not overlooked the Veteran's statements in support of her claim. In this regard, the Veteran is competent to report on factual matters of which she has first-hand knowledge, e.g. right pelvis pain. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, while the Board may consider the Veteran's subjective statements regarding the severity of the disability, the Board notes that with respect to the Rating Schedule, the criteria set forth therein generally require medical expertise which the Veteran has not been shown to have. See King v. Shinseki, 700 F.3d 1339, 1344 (Fed. Cir. 2012). Furthermore, the Board finds the objective medical findings provided in the VA treatment records should be accorded the greater probative weight. See Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches . . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators."). The above determination is based upon consideration of applicable rating provisions. It should also be noted that there is no showing that the Veteran's disability has reflected so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis. See 38 C.F.R. § 3.321(b) (1). In this case, there has been no showing that the Veteran's disability picture for her right pelvis fracture could not be contemplated adequately by the applicable schedular rating criteria discussed above. The criteria provide for higher ratings, but as has been explained thoroughly herein, the currently assigned rating adequately describes the severity of the Veteran's symptoms for this disability during the period of appeal, namely, pain and limitation of motion. Given that the applicable schedular rating criteria are adequate, the Board need not consider whether the Veteran's right pelvis disability picture includes such exceptional factors as periods of hospitalization and interference with employment. Referral for consideration of the assignment of a disability rating on an extraschedular basis is not warranted. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). As previously noted, there may be evidence of marked interference with employment in this case. As the Board finds that the issue of a TDIU is inextricably intertwined with the decisions made herein, the Board, in the section below, will remand the issue of the Veteran's eligibility for an award of TDIU. In light of the foregoing, the Board finds that a rating in excess of 10 percent for the Veteran's right pelvis fracture as manifestations of this disability were not shown to meet the criteria for a higher rating under any applicable Diagnostic Code. As such, the preponderance of the evidence is against the Veteran's claim. Because the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's claim for a rating in excess of 10 percent for a right pelvis fracture from July 8, 2008, to the present, must therefore be denied. ORDER A rating in excess of 10 percent for right pelvis fracture, for the period from July 8, 2008 to the present, is denied. REMAND As noted above, a request for TDIU is reasonably raised by the evidence of record. Rice v. Shinseki, 22 Vet. App. 447 (2009). A TDIU rating may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.34l, 4.16(a) (2012). The record reflects that the Veteran is currently service connected for depressive disorder, NOS, associated with right inferior pubic ramus stress fracture, rated as 50 percent disabling; lumbar strain, myositis associated with right inferior pubic ramus stress fracture, rated as 40 percent disabling; and right inferior pubic ramus stress fracture, rated as 10 percent disabling. Her combined disability evaluation is 70 percent. The physical and psychiatric disabilities stem from a common etiology-a basic training injury. Thus, she clearly meets the minimum percent rating requirement of 38 C.F.R. § 4.16(a) and the schedular standards for consideration of a TDIU under 38 C.F.R. § 4.16(a) are met. As previously stated, the Board notes that in a May 2012 statement, the Veteran stated that she stopped working due to her service-connected disabilities. In a May 2012 letter, physician and employer Dr. P.A.B.T. stated that the Veteran was no longer working in their office as a dental assistant due to problems with her mobility and concentration which directly affected her daily work functions. He stated, "Apparently, the conditions acquired during her military service do not allow [her] to be able to move adequately and quickly which is necessary for the basic daily functions of our office." Dr. P.A.B.T. stated that the Veteran had significant absences due to the worsening of her condition and was therefore unable to continue to provide her services to their office. Even though the Veteran currently meets the schedular requirements for a TDIU, the Board cannot currently determine, based on the medical evidence found within the claims file, whether the Veteran is unable to secure and follow substantially gainful employment by reason of her service-connected disabilities. As stated by the Court in Friscia v. Brown, 7 Vet. App. 294, 297 (1994), the Board may not reject a claim for a TDIU without producing evidence, as distinguished from mere conjecture, that the Veteran can perform work that would produce sufficient income to be other than marginal. Therefore, because the Board cannot adequately determine from the existing record how the Veteran's service-connected disabilities collectively affect her employability, the Board finds that the Veteran should be afforded an appropriate VA examination(s) and/or social and industrial survey to determine whether she is unable to secure or maintain substantially gainful employment as a result of her service-connected disabilities. In addition, a review of the Veteran's Virtual VA electronic claims file, shows that the most recent records are dated in March 2012. Thus, the Veteran's outstanding VA treatment records, if extant, must be secured on remand. See 38 C.F.R. § 3.159(c) (2), (c)(3) (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992) (because VA is deemed to have constructive knowledge of all VA records and such records are considered evidence of record at the time a decision is made). Accordingly, the case is REMANDED for the following actions: 1. The RO shall provide the Veteran and his accredited representative with a letter pertaining to his TDIU claim that complies with the notification requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The letter shall explain what information or evidence (medical or lay) is necessary to substantiate the TDIU element of the Veteran's claim. It shall indicate the information and evidence that is to be provided by the Veteran, including a formal application form and an employment information form, and what information VA will attempt to obtain on her behalf. It also shall include information concerning the assignment of disability ratings and effective dates. 2. Obtain the Veteran's VA outpatient treatment records for the period since March 2012. If such records do not exist or are otherwise not available after reasonable efforts, such circumstances shall be fully documented in the claims file. 3. After the above actions are completed, take any additional developmental matter deemed necessary, to include affording the Veteran an opportunity to attend a VA examination(s) and/or social and industrial survey to determine the impact of her service-connected disabilities on her employability. 4. Thereafter, the issue on appeal should be readjudicated. If the benefit sought on appeal is not granted to the Veteran's satisfaction, she and her representative should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the ultimate outcome of the case. The appellant 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). ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs