Citation Nr: 1317532	
Decision Date: 05/29/13    Archive Date: 06/06/13

DOCKET NO.  10-01 912	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to a rating higher than 50 percent since October 1, 2008, for a left total hip replacement.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Harold A. Beach, Counsel



INTRODUCTION

The Veteran served on active duty from February 1953 to June 1984.  He had tours in the Republics of Korea and Vietnam, and his awards and decorations include the Silver Star Medal, the Distinguished Flying Cross, the Purple Heart Medal, the Combat Infantryman Badge, the Senior Parachutist Badge, the Ranger Tab, and the Master Army Aviator Badge.

This appeal to the Board of Veterans' Appeals (Board/BVA) concerns May 2008 and more recent decisions of the Department of Veterans Affairs (VA) Regional Office (RO).

This case was previously before the Board in April 2012 and February 2013.  Each time the Board remanded the claim for further development.

In the April 2012 remand, the Board directed the Appeals Management Center (AMC) in Washington, DC, to ask the Veteran to identify the sources of all additional evaluation or treatment he had received for his left hip disability since December 2007.  The Board also directed the AMC to return the claims file to the VA examiner who had performed a VA compensation examination in January 2011.  The VA examiner was to review the claims file and provide supplemental comment concerning the severity of the left hip disability (prosthesis) in terms of the specific rating criteria mentioned in 38 C.F.R. § 4.71a, Diagnostic Code 5054.  That supplemental report was provided in July 2012.

Following that requested development, the AMC confirmed and continued the 50 percent rating for the Veteran's service-connected left total hip replacement.  Thereafter, the case was returned to the Board for further appellate consideration.

But in February 2013, after reviewing the claims file, the Board found the July 2012 supplemental report deficient and therefore again remanded the claim - requesting return of the claims file to that VA examiner for still additional information.  In April 2013, the VA examiner performed an additional examination and provided the additionally requested information.

But after again reviewing the claim, the AMC again confirmed and continued the 50 percent rating for the Veteran's service-connected left total hip replacement, a rating he has had effectively since October 1, 2008.  So this claim is again before the Board.

Please also note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

The Veteran's left total hip replacement is manifested primarily by severe painful motion and weakness necessitating the regular use of a cane for ambulation.


CONCLUSION OF LAW

The criteria are met for a higher 70 percent rating, though no greater rating, for the left total hip replacement.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5054 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA's Duties to Notify and Assist

Prior to considering the merits of this appeal, the Board must determine whether VA has met its statutory and regulatory duties to notify and assist the Veteran in the development of this claim.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159.


In September 2007, VA received his claim of entitlement to service connection for a left total hip replacement.  Following receipt of that application, VA informed him of the criteria for service connection, as well as those for rating service-connected disabilities and for assigning effective dates, should service connection be granted.  See Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007) (indicating the notice concerning a claim for service connection should additionally apprise the Veteran of these "downstream" disability rating and effective date elements of the claim, that is, in addition to the elements requiring that he establish his status as a Veteran, that he has the disability claimed, and that there is a relationship or correlation between the disability and his military service).  VA also notified him of the information and evidence necessary to substantiate and complete his service-connection claim, including the evidence to be provided by him personally versus the evidence VA would attempt to obtain for him.  38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).

In a May 2008 decision, the RO granted his claim for service connection for his left total hip replacement and assigned an initial 100 percent schedular evaluation retroactively effective from August 22, 2007, the date of his surgery.  It initially was anticipated that a lesser 30 percent rating would take effect prospectively as of October 1, 2008.  But another RO decision since issued in November 2009 determined he was additionally entitled to the temporary 100 percent rating as of August 22, 2007, under the provisions of 38 C.F.R. § 4.30 ("Paragraph 30") to compensate him for surgical or other treatment for this disability necessitating convalescence.  The 100 percent rating for this disability also was continued from October 1, 2007 to October 1, 2008, so for another year, at which time a lesser 50 percent rating took effect.  The RO also determined he was entitled to special monthly compensation (SMC ) from August 22, 2007 to October 1, 2008, when he had those 100 percent ratings, because he was housebound.  Those actions were taken in accordance with the criteria set forth in 38 C.F.R. § 4.71a, Diagnostic Code 5054.


He since has continued to appeal, requesting a rating higher than 50 percent for this disability since October 1, 2008, i.e., for when he did not have a 100 percent rating.  See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (it is presumed a Veteran is requesting the highest possible rating for a disability for all time periods at issue, unless he expressly indicates otherwise).

So this appeal concerns a "downstream" issue, namely, the propriety of this eventual 50 percent rating after determining this is a service-connected disability.  Grantham v. Brown, 114 F.3d 1156 (1997).  Although VA has not specifically notified him of the information and evidence necessary to substantiate this increased-rating claim, such notice is not required.  In December 2003, VA's General Counsel issued a precedential opinion concluding that, if VA receives a notice of disagreement (NOD) in response to a decision on a claim for which VA already has sent the Veteran a duty to assist letter, and the NOD raises a new issue, the duty to assist the Veteran does not require that VA also provide notice of the information and evidence necessary to substantiate the newly raised "downstream" issue.  See VAOGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004).  The Board is bound by this General Counsel's opinion as Chief Legal Officer for the Department.  38 U.S.C.A. § 7104(c) (West 2002).

According to the holdings in Goodwin v. Peake, 22 Vet. App. 128 (2008) and Dunlap v. Nicholson, 21 Vet. App. 112 (2007) and their progeny, instead of issuing an additional VCAA notice letter in this situation concerning the "downstream" disability rating element of the claim, the provisions of 38 U.S.C.A. § 7105(d) require VA to issue a statement of the case (SOC) if the disagreement is not resolved, and this occurred in this particular instance.  The SOC (and supplemental SOCs (SSOCs) since issued) cited the applicable statutes and regulations governing the rating of this disability and contained discussion of the reasons and bases for assigning the ratings that have been assigned in favor of higher ratings.

The Veteran therefore has received all required notice concerning this claim.


VA also has a duty to assist him in developing this claim, including by providing an examination for a medical opinion when needed to decide the claim.

To this end, during the course of this appeal, VA obtained or ensured the presence in the file of records and reports dated in August and December 2007 concerning his total left hip replacement performed by C. G. S., M.D., at the Hugheston Clinic.  VA also received multiple pieces of correspondence from the Veteran regarding that surgery and the residuals of it, as grounds for assigning a higher rating.

Also, in January 2011 and again in April 2013, VA had him examined to determine the level of impairment attributable to his left total hip replacement, including one year after his surgery.  38 C.F.R. § 4.71a, Diagnostic Code 5054.  In July 2012, the VA examiner reviewed the record and submitted additional comment concerning the post-operative residuals of that surgery.  In addition to reviewing the Veteran's medical history, the VA examination reports show, generally, that the VA examiner interviewed and evaluated the Veteran, documented the manifestations of his left total hip replacement, and rendered diagnoses and opinions consistent with the remainder of the evidence of record.  Taken together, the VA examinations and supplemental comments are adequate for purposes of evaluating this disability.  See 38 C.F.R. § 4.2 (2009); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate).

In his January 2009 substantive appeal to the Board (on VA Form 9), VA offered the Veteran an opportunity to present additional evidence and argument at a hearing.  To date, however, he has declined to accept that offer.

Furthermore, in April 2012, during its development of the record, VA requested that he identify any additional treatment or evaluations of his total left hip replacement from C. G. S., M.D.  VA also requested all additional records of the Veteran's treatment or evaluations by VA and non-VA health care providers since December 2007.  But, to date, he has not identified any additional sources of records, and there is no reason to believe that further efforts to obtain any such evidence would be any more productive.  Further development in this regard, then, would unnecessarily impose additional burdens upon VA with no reasonable possibility of any benefit flowing to him.  And these types of remands, which have no useful or meaningful purpose, are to be avoided. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991).

In sum, the Veteran has been afforded a meaningful opportunity to participate in the development of his claim.  He has not identified any outstanding evidence that would tend to support his claim.  And there is no suggestion of any VA error in notifying or assisting him that could result in prejudice to him or that could otherwise affect the essential fairness of the adjudication.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).

Accordingly, the Board is proceeding to the merits of this appeal.

The Merits of the Appeal

The Veteran contends that the 50 percent rating for his service-connected left total knee replacement does not adequately reflect the level of his disability on account of this disorder, hence, reason he is entitled to a higher rating.  After considering the claim in light of the record and applicable law, the Board agrees.  Accordingly, the appeal is being granted to the extent indicated.

Disability evaluations are determined by comparing the manifestations of a particular disability with the criteria set forth in the Diagnostic Codes of the Schedule for Rating Disabilities.  38 U.S.C.A. § 1155, 38 C.F.R. Part 4 (2012).  The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity (in civilian occupations) resulting from service-connected disability.  38 C.F.R. § 4.1.


The Veteran's total left hip replacement is rated in accordance with the criteria set forth in 38 C.F.R. § 4.7a, Diagnostic Code 5054.  A 100 percent disability rating is warranted for the year following implantation of the prosthesis.  Thereafter, a 90 percent rating is warranted when the prosthesis causes painful motion or weakness so as to require the use of crutches.  A 70 percent rating is warranted for markedly severe residual weakness, pain or limitation of motion following implantation of prosthesis.  A 50 percent rating is warranted for moderately severe residuals of weakness, pain or limitation of motion.

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.  All reasonable doubt material to the determination is resolved in the Veteran's favor.  38 C.F.R. § 4.3.

In determining the adequacy of assigned disability ratings, consideration is given to factors affecting functional loss.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  Such factors include a lack of normal endurance and functional loss due to pain and pain on use, specifically limitation of motion due to pain on use including that experienced during flare ups.  38 C.F.R. § 4.40.  Consideration is also given to weakened movement, excess fatigability, and incoordination, as well as the effects of the disability on the Veteran's ordinary activity.  38 C.F.R. § 4.10, 4.45.

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.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994).  However, a Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation; in this circumstance, VA must "stage" the rating to compensate him for this variance, irrespective of whether it is an initial or instead established rating.  See Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 21 Vet. App. 505 (2007).

A review of the record discloses that, in August 2007, the Veteran underwent a left total hip replacement by C. G. S., M.D., at the Hugheston Clinic.  Dr. S. reported that the surgery went extremely well.  However, correspondence from the Veteran and the reports of his January 2011 and April 2013 VA examinations show that, in the years since that surgery, he has reported continuing to experience severe pain and weakness in his left hip.  These post-surgical manifestations necessitate the regular use of a cane to assist with his ambulation and limit his ability to stand for more than 10 minutes or to walk for more than 50 yards without stopping to rest.  They also prevent his participation in exercise and sports, severely affect his ability to perform chores, shop, or travel, and moderately interfere with his recreation and driving.

In addition, the VA examination reports show that, due to the left total hip replacement, he is unable to cross his legs or toe out more than 15 degrees.  These reports also show that he is only able to flex his hip to between 40 and 50 degrees and that he is unable to abduct his knee to more than 20 degrees.  The range of motion is accompanied by complaints of pain to the extent that he is unable to perform repetitive testing.  As to the degree of impairment, the examiner who performed both VA examinations reports that the Veteran has chronic residuals consisting of severe painful motion or weakness or moderately severe pain and limitation of motion.  Though somewhat ambiguous, at the very least these reports provide an approximate balance of evidence both for and against the claim that a higher 70 percent schedular rating is warranted for the Veteran's left total hip replacement.  This is particularly true in light of the totality of the residuals associated with his surgery.  In this circumstance, all reasonable doubt is resolved in his favor and this higher rating granted.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3.

In arriving at this decision, the Board also has considered the possibility of assigning a still-higher schedular rating.  However, the Veteran does not contend, and the evidence does not show, that he requires the use of crutches to get around, only instead a cane.  Indeed, the VA examiner found that the Veteran needed no more than a cane to assist him with ambulation.  Therefore, the Board concludes that he does not meet the criteria for an even higher 90 percent schedular rating.  Accordingly, a 70 percent schedular rating, but no higher, is being assigned.

Also in reaching this determination, the Board notes that the Veteran has a surgical scar on his left hip measuring 11 cm by 0.2 cm.  Generally, separate disabilities arising from a single disease entity are to be rated separately.  38 C.F.R. § 4.25(b) (2012); Esteban v. Brown, 6 Vet. App. 259, 261 (1994).  The evaluation of the same disability under various diagnoses, a practice known as pyramiding, is to be avoided.  38 C.F.R. § 4.14 (2012); Fanning v. Brown, 4 Vet. App. 225 (1993).  However, a Veteran may receive separate disability ratings for scars, as well as the underlying disability, if the scar causes additional disability.  Esteban v. Brown, 6 Vet. App. 259, 261-262 (1996); see also VAOPGCPREC 23-97.  

Additional disability may be present if scars (other than those involving the head, face, or neck) that are deep or that cause limited motion cover an area or areas exceeding 6 square inches (39 sq. cm.).  38 C.F.R. § 4.118, Diagnostic Code 7801.  A deep scar is one associated with underlying soft tissue damage.  38 C.F.R. § 4.118, DC 7801, Note (2).  Additional disability also may be present for superficial scars that do not cause limitation of motion and cover an area of 144 square inches (929 sq. cm.) or greater, or if they are unstable or painful on examination.  38 C.F.R. § 4.118, Diagnostic Code 7803.  A superficial scar is one not associated with underlying soft tissue damage.  38 C.F.R. § 4.118, DC 7803, Note (2).  An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.  38 C.F.R. § 4.118, DC 7803, Note (1).  Scars also may be rated base on the limitation of function of the affected part.  38 C.F.R. § 4.118, DC 7805.

Here, though, there is no evidence suggesting the Veteran's surgical scar is productive of additional disability.  It is not deep as defined by VA nor is it unstable or painful on examination.  Moreover, it covers an area of less than 6 square inches.  While he does have some associated limitation of left hip motion, that manifestation has been considered in the evaluation of the left total hip replacement.  He also already has separate ratings for limitation of flexion of his left thigh and for other impairment, as well as for limitation of extension of his left thigh.  So providing still additional compensation, above and beyond that, would constitute the prohibited practice of pyramiding.  Therefore, the Board finds that his scar from his left total hip replacement does not itself meet the criteria for a separate rating.

Finally, the Board has considered the possibility of referring this case to the Director of the VA Compensation and Pension Service for possible approval of an extra-schedular rating for the Veteran's service-connected left total hip replacement.  38 C.F.R. § 3.321(b)(1) (2012).

The question of an extra-schedular rating is a component of a claim for an increased rating.  See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). And although the Board may not assign an extra-schedular rating in the first instance, it must specifically adjudicate whether to refer a case for extra-schedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record.  Barringer v. Peake, 22 Vet. App. 242 (2008).

Because the ratings provided under the VA Schedule for Rating Disabilities are averages, it follows that an assigned rating may not completely account for each individual Veteran's circumstances, but nevertheless would still be adequate to address the average impairment in earning capacity caused by the disability.  Thun v. Peake, 22 Vet. App. 111, 114  (2008).  However, in exceptional situations where the rating is inadequate, it may be appropriate to refer the case for extra-schedular consideration.  Id.  The governing norm in these exceptional cases is a finding that the disability at issue presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1).

There is a three-step inquiry for determining whether a claimant is entitled to an extra-schedular rating.  Thun, 22 Vet. App. at 115.  First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  In this regard, the Board must compare the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  Id.  If the rating criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, in which case the assigned schedular evaluation is adequate and no referral is required.  Id.  Second, if the schedular evaluation is found to be inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors, such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a claimant's disability picture with such related factors as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating.

In this case, neither the Veteran nor his representative has expressly raised the matter of entitlement to an extra-schedular rating.  The Veteran's contentions have been limited to those discussed above, i.e., that his disability is more severe than is reflected by the currently assigned schedular rating.  See Brannon v. West, 12 Vet. App. 32  (1998) (while the Board must interpret a claimant's submissions broadly, the Board is not required to conjure up issues that were not raised by the claimant).  The criteria for rating a total hip replacement specifically contemplate the symptoms of the Veteran's service-connected left total hip replacement:  pain, weakness, limitation of motion, and the need for an assistive device for ambulation.  38 C.F.R. §§ 4.71a, Diagnostic Code 5054.

In short, the Veteran does not have symptoms associated with his left total hip replacement that have been left uncompensated or unaccounted for by the assignment of his schedular rating.  Thun, 22 Vet. App. at 115.  Therefore, the preponderance of the evidence is against finding that his left total hip replacement presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards.  Accordingly, further action is not warranted under 38 C.F.R. § 3.321(b)(1).  See Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996).


ORDER

A higher 70 percent rating is granted for the left total knee replacement, though no greater rating, subject to the statutes and regulations governing the payment of retroactive VA compensation.



____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs