Citation Nr: 1316574 Decision Date: 05/21/13 Archive Date: 05/29/13 DOCKET NO. 10-04 598 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an initial compensable evaluation for degenerative arthritis and mild acetabular dysplasia of the right hip (formerly generalized osteopenia, bilateral hips and pelvis), claimed as bone spurs, bilateral hips, for the period prior to March 13, 2009. 2. Entitlement to an initial compensable evaluation for degenerative arthritis and mild acetabular dysplasia of the left hip (formerly generalized osteopenia, bilateral hips and pelvis), claimed as bone spurs, bilateral hips, for the period prior to March 13, 2009. 3. Entitlement to an initial compensable evaluation for generalized osteopenia, bilateral feet (claimed as bone spurs, bilateral feet), for the period prior to March 13, 2009. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The Veteran served on active duty from August 2006 to April 2007. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. Although the RO characterized the issues as entitlement to an effective date earlier than March 13, 2009, for the assignment of 10 percent ratings for the Veteran's service-connected right and left hip and bilateral feet disabilities as arising from an April 2009 rating decision that assigned compensable ratings for the Veteran's right and left hip and bilateral feet disabilities effective March 13, 2009, it is evident from the record that the Veteran initiated an appeal of the earlier September 2007 rating decision that granted service connection for right and left hip disabilities and bilateral feet disabilities and assigned each disability a noncompsenable rating. In this regard, the Veteran filed a timely notice of disagreement, in September 2007, stating that she disagreed with the noncompensable ratings. This was followed by the issuance of a statement of the case in April 2009, and substantive appeal (VA Form 21-4138) in April 2009. 38 C.F.R. § 20.200. In short, whether the issue is framed as an earlier effective date or as higher initial ratings, the substance of the claim is not changed as the material issue for consideration is whether the criteria for a 10 percent rating for right and left hip disabilities and bilateral feet disability, or higher, were met at any time during the period prior to March 13, 2009. Under either theory of entitlement, i.e., as a staged rating or as an effective date, the effective date would be fixed in accordance with facts found. Consequently, the issues being decided herein are appropriately reflected on the title page of this decision. As to entitlement to higher initial ratings for the period from March 13, 2009, the Veteran stated in writing in April 2009 that she agreed with the (combined) 30 percent rating for these disabilities (made effective March 13, 2009). Thus, consideration of higher ratings for the period from March 13, 2009, is not warranted. See AB v. Brown, 6 Vet. App. 35 (1993) (a Veteran is presumed to be seeking the highest possible rating, unless he/she expressly indicates otherwise). In March 2013, the Veteran testified before the undersigned Veterans Law Judge at a Board hearing at the RO. A transcript of the hearing is of record. FINDINGS OF FACT 1. As of April 11, 2007, the Veteran's degenerative arthritis and mild acetabular dysplasia of the right hip (formerly generalized osteopenia, bilateral hips and pelvis), was more likely than not manifested by objective evidence of painful motion. 2. As of April 11, 2007, the Veteran's degenerative arthritis and mild acetabular dysplasia of the left hip (formerly generalized osteopenia, bilateral hips and pelvis), was more likely than not manifested by objective evidence of painful motion. 3. As of April 11, 2007, the Veteran's generalized osteopenia, bilateral feet (claimed as bone spurs, bilateral feet), was more likely than not manifested by objective evidence of painful motion. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, from April 11, 2007, the criteria for an initial rating of 10 percent, but no more, for degenerative arthritis and acetablular dysplasia of the right hip (claimed as bone spurs) have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code (Code) 5003, 5013 (2012). 2. Resolving reasonable doubt in the Veteran's favor, from April 11, 2007, the criteria for an initial rating of 10 percent, but no more, for degenerative arthritis and acetablular dysplasia of the left hip (claimed as bone spurs) have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code (Code) 5003, 5013 (2012). 3. Resolving reasonable doubt in the Veteran's favor, from April 11, 2007, the criteria for an initial rating of 10 percent, but no more, for generalized osteopenia, bilateral feet (claimed as bone spurs, bilateral feet) have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code (Code) 5003, 5013 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 Initially, the Board notes that, in November 2000, the Veterans Claims Assistance Act of 2000 (VCAA), was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). To implement the provisions of the law, VA promulgated regulations published. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The United States Court of Appeals for Veterans Claims' (Court's) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits. In the present appeal, since the appellate issues are downstream issues from that of service connection (for which a May 2007 VCAA letter was duly sent), another VCAA notice is not required. See VAOPGCPREC 8-2003. The Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 472 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. The Court held that upon receipt of an application for a service- connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Dingess/Hartman, supra. With respect to the claims presently on appeal, the Veteran was informed of the degree of disability and effective date elements in the May 2007 letter noted above. The Board finds that all necessary assistance has been provided to the appellant and the RO has made reasonable and appropriate efforts to assist her in obtaining the evidence necessary to substantiate her claims for higher, compensable, ratings for her hip and feet disabilities. VA has obtained identified medical evidence and afforded the appellant an examination. To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examination report on file in June 2007 contains sufficient findings with which to properly evaluate the appellant's service-connected hip and feet disabilities and is thus deemed adequate for rating purposes. See also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The examination report is predicated on a physical examination and contains the findings necessary to evaluate the appellant's hip and feet disabilities under the applicable rating criteria. The appellant has not indicated that any additional pertinent evidence exists with respect to the claim, and there is no indication that any such evidence exists. Moreover, during the March 2013 Board hearing, the undersigned explained the issues on appeal and asked questions designed to elicit evidence that may have been overlooked with regard to the claims. These actions provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments in compliance with 38 C.F.R. § 3.103(c). As is explained below, the appellant has argued that the June 2007 examination report was based on an incorrect and inaccurate examination as it did not objectively find painful motion. However, also as is explained below, the Board has carefully weighed the evidence to find in the Veteran's favor with respect to painful motion. Thus, further development on this matter is not indicated. As noted, the appellant provided testimony to the Board in March 2013, and at that hearing she was provided notice of the elements pertinent to her increased rating claim and ensured that all pertinent evidence was on file or would be submitted. The Veteran's contentions were discussed and are part of the transcript. As noted, such actions supplement the VCAA and comply with 38 C.F.R. § 3.103. Under these circumstances, the Board finds that VA has fulfilled its duty to notify and assist the appellant in the claims on appeal presently being decided and that adjudication of the claims at this juncture, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the appellant. See, e.g., Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The appeal is now ready to be considered on the merits. II. Pertinent Law and Regulations Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. §§ 3.102, 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where, as here, a Veteran appeals the initial rating assigned for a disability when a claim for service connection for that disability has been granted, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an [initial] rating on appeal was erroneous . . . ." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. When evaluating disabilities of the joints, VA's Rating Schedule provides for consideration of additional functional impairment due to pain, weakness, fatigue, incoordination, and lack of endurance when assigning evaluations. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012); see DeLuca v. Brown, 8 Vet. App. 202 (1995). Under VA's Rating Schedule, arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71, Diagnostic Codes 5003, 5010. When 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. Id. For the purpose of rating disability for arthritis, the hip and ankles are considered major joints. 38 C.F.R. § 4.45(f). Evaluations for limitation of flexion of the thigh are assigned as follows: flexion limited to 45 degrees is 10 percent; flexion limited to 30 degrees is 20 percent; flexion limited to 20 degrees is 30 percent rating; and flexion is limited to 10 degrees is 40 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5252. Under Diagnostic Code 5253, where there is limitation of rotation of the thigh to the point that the claimant cannot toe-out more than 15 degrees, a 10 percent evaluation is assigned. A 10 percent rating is also assigned where there is limitation of abduction to the point at which the claimant cannot cross his legs. A 20 percent rating is assigned where there is limitation of abduction of the thigh, motion lost beyond 10 degrees. Normal hip motion is defined as flexion from zero to 125 degrees and abduction from zero to 45 degrees. 38 C.F.R. § 4.71, Plate II. Under Code 5284, a 10 percent rating is warranted for a moderate foot injury, a 20 percent rating for a moderately severe foot injury, and a 30 percent rating for a severe foot injury. Terms such as "slight," "moderate," and "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C.A. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Analysis Review of the record reveals that service connection was granted for these disorders with a noncompensable rating assigned effective April 11, 2007. This is the day following the Veteran's separation from service. Subsequently, following examination on March 13, 2009, the 10 percent ratings herein discussed were assigned. As note, appellant is satisfied with the ratings, but asserts they should be assigned from the earlier effective date. The evidence of record regarding the hips does not provide a basis for assigning a compensable rating under Diagnostic Codes 5251, 5252, or 5253 based on a strict adherence to the rating criteria for the period prior to March 13, 2009. In this regard, the June 2007 examiner found that flexion was no less than 125 degrees and extension was only limited to 30 degrees. He also found that adduction was to 25 degrees, abduction was to 45 degrees, external rotation was to 60 degrees, and internal rotation was to 40 degrees. These findings do not meet the criteria under Codes 5251, 5252, 5253 or 5254 for a compensable rating. That is, flexion was not limited to 45 degrees nor was extension limited to 5 degrees. Also, limitation of abduction was not shown to produce lost motion beyond 10 degrees, and in regard to adduction, there is no evidence that the Veteran could not cross her legs. Also, there is no showing with respect to limitation of rotation that the Veteran was unable to toe-out more than 15 degrees in either leg. The Board has also considered whether a rating could be assigned under the other previously mentioned diagnostic codes for rating disability of the hip prior to March 13, 2009. However, as ankylosis, flail joint, or femur impairment are not shown, ratings under these codes are not applicable. See 38 C.F.R. § 4.71a, Diagnostic Codes 5250, 5254, 5255. As for the feet, the Veteran reported at the June 2007 examination experiencing constant pain at the bottom of her feet. She assessed the pain at a level 3 out of 10 (10 being the worst), and said she is able to function with the pain if she takes medication. She said standing and walking elicited sharp, throbbing pain. Examination of the feet did not reveal tenderness, painful motion, weakness, edema, atrophy or disturbed circulation. She was not found to have any limitation with standing and walking and did not require any type of support with her shoes. X-rays of both feet revealed generalized osteopenia (which is subsequently manifested as arthritis). In light of these findings showing that the Veteran had no limitation with standing and walking, did not require any type of support for her shoes, and per her report is able to function despite the pain with medication, the evidence does not approximate the criteria for a moderate foot disability under Code 5284. Notwithstanding the above, the Board notes that although arthritis of the hips and feet was not specifically shown during the period prior to March 2009, a rating by analogy to arthritis can be considered on the basis of objective evidence of painful motion. This is particularly so in light of findings of osteopenia which is similar to osteoporosis and an apparently precursor to the later diagnosed arthritis. See Diagnostic Code 5013, calling for ratings for osteoporosis based on limitation of motion of the affective part as arthritis, degenerative under Diagnostic Code 5003, with a 10 percent rating available under this code for noncompensable limitation of motion of a major joint, which is confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. See also Diagnostic Code 5003. At the outset, the Board notes that the evidence is inconsistent with respect to objective evidence of painful motion for the period prior to March 13, 2009. The Veteran contends that the examination findings in June 2007 finding essentially normal range of motion and no additional limitation due to pain, fatigue, lack of endurance or incoordination after repetitive use is inaccurate and incorrect. More specifically, she asserts that the examiner spent less than five minutes evaluating her and did not evaluate her accurately or correctly since she does in fact have reduced range of motion limited by factors such as pain. She testified in March 2013 that her symptoms were the same in June 2007 as they were in a subsequent examination in March 2009 at which time objective evidence of painful motion was shown. The Veteran's credible assertions are supported by her service treatment records which include a February 2007 record noting that pain was elicited by hip motion (as well as tenderness with ambulation of the hips). This record further shows that pain was elicited by motion of the foot. This record is dated just four months prior to the June 2007 postservice examination. There are also VA outpatient records, dated in May 2007 and June 2008, containing the Veteran's history of hip arthralgia, pain on rotation. In light of the above and resolving all reasonable doubt in the Veteran's favor, the Veteran finds that separate compensable, 10 percent ratings, by analogy to Diagnostic Codes 5003, 5013, are warranted for the right and left hip disabilities as well as for the bilateral feet disability from the April 2007 date of claim. See 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5003; Hicks v. Brown, 8 Vet. App. 417, 421 (1995) (holding that painful motion of a major joint is deemed limited motion). The Board further finds that the preponderance of the evidence is against the assignment of an initial rating in excess of 10 percent for the appellant's service-connected right and left hip and bilateral feet disabilities. As delineated in detail above, although the appellant has consistently reported right and left hip pain and bilateral feet pain, findings prior to March 2009 as recorded on outpatient records and the June 2007 examination report do not show findings that meet the criteria under Codes 5251, 5252, 5253 or 5284 for compensable ratings, much less ratings in excess of 10 percent. The Board additionally finds that the objective evidence does not reflect the functional equivalent of symptoms, supported by adequate pathology, required for the assignment of ratings in excess of 10 percent. The correct effective date for this pathology is April 11, 2007 as to all ratings assigned. ORDER As of April 11, 2007, a compensable rating, to 10 percent, for degenerative arthritis and mild acetabular dysplasia of the right hip (formerly generalized osteopenia, bilateral hips and pelvis) is granted, subject to the law and regulations governing the award of monetary benefits. As of April 11, 2007, a compensable rating, to 10 percent, for degenerative arthritis and mild acetabular dysplasia of the left hip (formerly generalized osteopenia, bilateral hips and pelvis) is granted, subject to the law and regulations governing the award of monetary benefits. As of April 11, 2007, a compensable rating, to 10 percent, for generalized osteopenia, bilateral feet (claimed as bone spurs, bilateral feet) is granted, subject to the law and regulations governing the award of monetary benefits. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs