Citation Nr: 1318015 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 06-17 275 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to a rating higher than 10 percent for a service-connected left hip disability, to include degenerative joint disease (DJD), prior to August 1, 2007. 2. Entitlement to a rating higher than 30 percent for a service-connected left hip disability manifested by a status post left hip arthroplasty, from October 1, 2008 to the present. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The Veteran served on active duty from August 1990 to July 1997. This appeal initially came to the Board of Veterans' Appeals (Board) is from a July 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which denied the Veteran's March 2005 claim for an increased rating greater than 10 percent for his service-connected left hip DJD. Jurisdiction over the Veteran's claim was subsequently transferred to the VA RO in Cleveland, Ohio. During the pendency of the appeal, by a May 2008 rating decision, the Veteran was granted a temporary evaluation of 100 percent from August 1, 2007 to September 30, 2008, based upon the Veteran's total left hip replacement/arthroplasty on August 1, 2007. As a total temporary rating is in effect from August 1, 2007 to September 30, 2008, the rating for that period is not on appeal. The RO also increased the rating for the Veteran's left hip DJD, status post left hip arthroplasty, from 10 to 30 percent, effective October 1, 2008. In January 2010, the Board granted an appeal for an increased rating for asthma, and Remanded the issues listed on the title page of this decision to the RO, via the Appeals Management Center (AMC). In October 2010, September 2012, and March 2013, the Board again remanded the issues remaining on appeal The Veteran requested a hearing before the Board. A Travel Board hearing was scheduled in October 2009. The Veteran failed to appear. He has not requested that the requested hearing be rescheduled. His request for a hearing is considered withdrawn. [Continued on Next Page] FINDINGS OF FACT 1. In the year prior to the March 2005 claim for an increased rating, the Veteran's left hip DJD was manifested by pain and by morning stiffness, but the Veteran remained able to jog, run up and down stadium stairs, and to work full-time as a truck driver, although he was reporting increasing pain. 2. During the period from March 2005 to November 30, 2006, the Veteran complained of increased pain, decreased mobility, increased weakness, and difficulty putting his socks and shoes on and taking them off, but he did not manifest compensable limitation of motion of the left hip in any plane. 3. From November 30, 2006 through August 1, 2007, the Veteran had severe traumatic arthritis of the left hip, with constant severe pain, an antalgic gait, instability, episodes of locking, and near-complete loss of adduction and internal rotation, among other limitations of motion. 4. The Veteran has maintained full-time work as a truck driver since the termination of a temporary total disability rating in October 2008, and his limitations of motion of the left hip, status post arthroplasty, are noncompensable, as is a slight leg length discrepancy; those limitations, considered together with the Veteran's report that he is unable to cross his legs, results in moderate disability, consistent with the assigned rating, and does not approximate severe residuals of weakness, pain, or limitation of motion, or present an exceptional disability picture. CONCLUSIONS OF LAW 1. From March 8, 2005, to November 30, 2006, a rating in excess of 10 percent for traumatic arthritis, left hip, is denied. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5010, 5003, 5250-5255, 5275 (2012). 2. From March 8, 2005, to November 30, 2006, a separate, compensable, 10 percent evaluation for inability to cross the left leg over the right leg is warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.14, 4.40, 4.45, 4.71a, Diagnostic Code under 38 C.F.R. § 4.71a, Diagnostic Code 5253 (2012). 3. From November 30, 2006 to August 1, 2007, a separate, compensable, 10 percent evaluation for instability of the left hip is warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.14, 4.40, 4.45, 4.71, 4.71a, Diagnostic Code 5255 (2012). 4. The criteria for an evaluation in excess of 30 percent from October 1, 2008 for left hip DJD, status post left hip arthroplasty, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.16, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5010, 5054, 5250-5255 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran contends that he is entitled to higher disability ratings for left hip arthritis during the periods relevant to this appeal. Before addressing the claim for higher staged ratings on the merits, the Board will consider whether VA has met its duties to assist the Veteran. VA's duties to the claimant VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits as provided for by the Veterans Claims Assistance Act (VCAA) of 2000. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Duty to Notify Under the VCAA, VA has a duty to inform the Veteran 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 Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This 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). The claimant is also entitled to notice of the criteria for assigning a disability rating and for assigning an effective date for an increased rating. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In this case, the Veteran was notified by a letter issued in April 2005 of the criteria for an increased rating. In June 2008, the Veteran was advised of the criteria for assigning a disability rating and for assigning an effective date for an increased rating in compliance with Dingess. Thereafter, the Veteran was notified of the criteria for substantiating his claim, or evidence that might substantiate his claim, or of VA's duties to assist him, by letters or other communications following the January 2010 Board Remand and each of the three subsequent Board Remands, with the most recent notices having been issued in October 2012, January 2013, and in March 2013. Given the duty-to-assist notices, the Board's Remands, and the notice letters and readjudications following the Board's Remands, it is clear that the Veteran has been notified of each element of the notice requirements. If there was any defect in the timing or content of notice to the Veteran, such defect has been cured by later notices and readjudications. See Shinseki v. Sanders/Simmons, 129 S.Ct. 1696 (2009). Duty to Assist Next, VA has a duty to assist the Veteran in the development of a claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran has been afforded VA examinations of the left hip. VA and private clinical records have been obtained. The VA examiner who conducted the most recent VA examination, in December 2012, verified that all available VA treatment records, including electronic records, were reviewed in connection with the VA examination. The Board directed, in Remands issued in 2010, 2012, and 2013, that complete VA treatment records be associated with the claims files and that the Veteran be afforded VA examinations which provided sufficient information to rate the claim. All directions in the Remands have been addressed in the VA examination provided in December 2012. In addition to the Board's directives that VA records be obtained, the Veteran was advised in the Board's September 2012 Remand, and in the communications following that Remand, that he should submit or identify records of his private medical treatment since an August 2007 arthroplasty (hip replacement), but the Veteran did not identify any additional evidence. The AMC confirmed, following the March 2013 Remand, that there are no additional VA records available. All VA treatment records of any type, including physical therapy records for all VA treatment obtained during the pendency of the appeal are associated with the claims files. Both the claims files and the Virtual VA (electronic) file have been reviewed during the preparation of this decision. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Significantly, neither the Veteran nor his representative has identified any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. 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). Claims for higher ratings for left hip disability Historically, the Veteran was granted service connection for left hip DJD, effective from September 1997. A 10 percent rating was assigned. In March 2005, the Veteran submitted a claim for a rating in excess of 10 percent. [Continued on Next Page] Provisions governing analysis of claims for higher ratings The law provides that disability ratings are intended to compensate reductions in earning capacity as a result of the specific disorder. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify various disabilities. See 38 C.F.R. Part 4. Disability evaluations are determined by the application of a schedule of ratings based on average impairment in earning capacity. 38 U.S.C.A. § 1155. Requests for increased disability ratings require consideration of the medical evidence of record compared to the criteria in the VA Schedule for Rating Disabilities. See 38 C.F.R., Part 4. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). If there is a question as to which evaluation to apply to the Veteran's disability, 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. 38 C.F.R. § 4.7. Consideration must be given to a longitudinal picture of the Veteran's disability to determine if the assignment of separate ratings for separate periods of time, a practice known as "staged" ratings, is warranted. See Hart v. Mansfield, 21 Vet. App. 505 (2007). If an increase in disability occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C.A. 5110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. 3.400(o)(1)(2); VAOPGCPREC 12-98 (1998). When a Veteran has traumatic arthritis, that disability is evaluated under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5010. The criteria used for evaluation under DC 5010 are those specified in DC 5003, the criteria for evaluating degenerative arthritis. Degenerative arthritis established by radiologic findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. DC 5003 further states that, where 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 affected by limitation of motion, to be combined, not added, under DC 5003. 38 C.F.R. § 4.71a. Disabilities of the hip and thigh are evaluated under 38 C.F.R. § 4.71a, Diagnostic Codes (DCs) 5250 through 5255. At the outset, the Board observes that there is no evidence of ankylosis of the hip or flail joint in this case. Hence, DCs 5250 and 5254 are not for consideration. Under DC 5251, a 10 percent disability evaluation where there is limitation of extension of the thigh to 5 degrees. Under DC 5252, a 10 percent disability evaluation is assigned for flexion of the thigh limited to 45 degrees. For the next higher evaluation, a 20 percent rating, there must be limitation of flexion to 30 degrees. Pursuant to DC 5253, a 10 percent disability evaluation is assigned for limitation of rotation, with an inability to toe-out in excess of 15 degrees or where there is limitation of adduction such that one cannot cross their legs. A 20 percent disability evaluation is warranted for limitation of abduction, where motion is lost beyond 10 degrees. 38 C.F.R. § 4.71a, DC 5251-5253. Under DC 5255, malunion of the femur with slight knee or hip disability warrants a 10 percent evaluation. Malunion of the femur with moderate knee or hip disability warrants a 20 percent evaluation. Malunion of the femur with marked knee or hip disability warrants a 30 percent evaluation. Fracture of surgical neck of the femur, with false joint or fracture of the shaft or anatomical neck of the femur with nonunion, without loose motion, weight bearing preserved with aid of brace warrants a 60 percent evaluation. Fracture of the shaft or anatomical neck of the femur with nonunion, with loose motion (spiral or oblique fracture) warrants an 80 percent evaluation. 38 C.F.R. § 4.71a, DC 5255. Shortening of bones of the lower extremity is evaluated under 38 C.F.R. § 4.71a, DC 5275. A 10 percent rating is assigned for shortening of the bones of the lower extremity from 11/4 to 2 inches (3.2 cms to 4.1 cms). A 20 percent rating is assigned for shortening of the bones of the lower extremity from 2 to 21/2 inches (5.1 cms to 6.4 cms). A 30 percent rating is assigned for shortening of the bones of the lower extremity from 21/2 to 3 inches (6.4 cms to 7.6 cms). A maximum 60 percent rating is assigned for shortening of the bones of the lower extremity over 4 inches (10.2 cms). A Note to DC 5275 states that both lower extremities should be measured from the anterior superior spine of the ilium to the internal malleolus of the tibia. This rating is not to be combined with other ratings for fracture or faulty union in the same extremity. A footnote to DC 5275 provides that Veterans entitled to a 50 or 60 percent rating under this DC also are entitled to special monthly compensation. Id. The provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 must be considered in assigning an evaluation for degenerative or traumatic arthritis under DC 5003 or 5010. Rating personnel must consider functional loss and clearly explain the impact of pain on the disability. When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the Veteran may have by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). These factors include more or less movement than normal, weakened movement, premature or excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. The provisions of 38 C.F.R. § 4.40 state that 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. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). VA's General Counsel has held that a claimant who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257. VAOPGCPREC 23-97. The General Counsel subsequently clarified in VAOPGCPREC 9-98 that, for a knee disability rated under DC 5257 to warrant a separate rating for arthritis based on X-ray findings and limitation of motion, limitation of motion under DC 5260 or 5261 need not be compensable but must at least meet the criteria for a zero-percent rating. If a Veteran has a disability rating under DC 5257 for instability of the knee, a separate rating for arthritis could also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59. Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991). Additionally, separate ratings may be assigned, as well, for limitation of extension and flexion. VAOPGCPREC 9-2004. Specifically, where a Veteran has both a compensable level of limitation of flexion and a compensable level of limitation of extension, the limitations must be rated separately to adequately compensate him for functional loss. The Board observes that the words such as "moderate" and "marked" are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. 1. Claim for rating higher than 10 percent prior to August 1, 2007 a. Prior to March 8, 2005 In February 2004, the Veteran sought private evaluation of left hip pain. Radiologic examination disclosed severe osteoarthritis. In January 2005, the Veteran had bone-on-bone articulation at the left hip on radiologic examination. However, the provider noted, the Veteran remained very active, continuing to work full-time as a truck driver, continuing to run stadium stairs and jogging on a regular basis. The Veteran's symptoms during the year prior to the March 2005 claim are consistent with the criteria for the 10 percent evaluation assigned under DCs 5010 and 5252 during that period. The evaluation under DCs 5010-5252 encompasses pain and arthritis on radiologic examination. The Veteran's report that he was able to jog and to climb stadium stairs establishes that the Veteran did not have limitation of motion which would allow for assignment of an evaluation in excess of 10 percent. The preponderance of the evidence establishes that the Veteran did not meet any criterion for an evaluation in excess of 10 percent for left hip DJD during the year prior to the March 2005 claim. 38 C.F.R. § 3.400(o). b. Rating from March 8, 2005 to November 30, 2006 At the time of VA treatment in March 2005, the Veteran reported pain on adduction. The provider stated that there was restricted range of motion. The Veteran had used several pain medications, but no medication had worked to alleviate his pain. Radiologic examination conducted in March 2005 disclosed severe narrowing of the left hip joint. A private provider who examined the Veteran in April 2005 noted that the Veteran had an antalgic gait due to left hip pain. The provider advised the Veteran that, if he continued to experience increasing functional loss, the severity of the osteoarthritis would require hip replacement. There was tenderness at the left lateral greater trochanter, but no compensable limitation of motion. The evidence during this period shows that the Veteran had pain, noncompensable limitation of motion, and objective confirmation of arthritis on radiologic examination. However, there is no showing of instability of the hip, no evidence of compensable shortening of the left leg, or of some other symptom which would warrant an evaluation separate from the 10 percent assigned for traumatic arthritis. In May 2005, VA examination disclosed leg length of 108 cm for the left leg. The examiner did not state the length of the right leg. However, the right leg was measured as 110 cm in length at the December 2012 VA examination. As a matter of fact, the Board notes that there is no medical indication that the length of the Veteran's right leg changed during the pendency of this appeal. The Board acknowledges that not all measurements noted in the record are in agreement with the measurements for the Veteran's leg lengths as noted in 2012 VA examination. See Report of May 2010 VA examination. If the Veteran's right leg length remained the same, the Veteran's leg length discrepancy, comparing the right leg to the left leg, would be 2 cm at the time of the May 2005 VA examination. That variation in leg length would be noncompensable. See DC 5275 (leg length discrepancy up to 3.2 cm, or 11/4 inches, noncompensable). Thus, a separate evaluation for leg length discrepancy cannot be assigned. In May 2005, the Veteran's left thigh flexion was to 90 degrees, extension to 30 degrees, adduction to 20 degrees, and abduction to 45 degrees, with pain at the end of each motion. The Veteran reported constant pain, worse with sitting. He reported that he continued to work as a truck driver despite the pain. The Veteran was no longer able to participate in sports, was unable to jog, or to do other fitness activities, he reported. Another treating provider who saw the Veteran in May 2005 noted that the Veteran reported pain on adduction and had some restriction of motion. The provider also noted weakness. The Veteran again reported that pain medications helped very little, reducing his pain from a 10 to a 7. In July 2005, the RO issued a rating decision which continued the 10 percent evaluation in effect. In an August 2005 notice of disagreement, the Veteran stated that he disagreed with the 10 percent evaluation because he had difficulty going up or down steps, had difficulty bending to tie his shoes, had constant burning pain, and had difficulty carrying any item such as a box. He noted that his hip degeneration was so bad that his physicians wanted to perform a hip replacement even though he was only 37 years old. In his May 2006 substantive appeal, the Veteran again referenced the extent of disease shown on radiologic examination. The Veteran did not seek VA or private treatment again until November 2006, when he reported worsening pain. He requested reevaluation. In November 2006, the Veteran reported worsening left hip pain. VA outpatient notes reflect that there was objective evidence of left hip joint pain. He was again advised of the availability of left hip replacement. From March 2005 to November 2006, the evidence discloses that the Veteran's left hip disability was increasing. Although no provider stated that the Veteran was unable to cross his legs, the providers and the Veteran described increasing difficulty performing any tasks which required the Veteran to cross the left leg over the right and bring up his feet. Although the Veteran did not manifest a specific limitation of motion in any one plane that was compensable, the Veteran had some limitation in all planes of motion. The Veteran's flexion, to 90 degrees, was noncompensable, considered as an individual symptom, but was less than full flexion, defined as 125 degrees. See 38 C.F.R. § 4.71, Plate II. Limitation of extension of the thigh is compensable where there is limitation to 5 degrees, so the Veteran's limitation to 30 degrees of extension was not compensable. Abduction is compensable if limited to 10 degrees, so the Veteran's limitation to 45 degrees is noncompensable. Limitation of adduction of the thigh is compensable if there is inability to cross the legs, without regard to the extent of retained adduction. DC 5253. The VA examiner did not state whether the Veteran could cross his legs. The Veteran stated that he had pain with such motion such that he was having difficulty getting his shoes and socks on and off. The Board finds that the Veteran's lay statements approximate a medical finding of inability to cross the left leg over the right, which warrants assignment of a 10 percent evaluation under DC 5253. This rating encompass the Veteran's objective difficulty with getting his clothing on and off, difficulty walking up and down steps, and difficulty moving the clutch in and out on a motor vehicle due to weakness of motion of the left leg. These functional losses are separate from functional loss due to pain and the noncompensable limitations in several planes of motion, so the rating under DC 5253 is a separate rating in addition to the 10 percent evaluation under DC 5010 for traumatic arthritis. Therefore, upon consideration and application of the provisions of 38 C.F.R. §§ 4.40, 4.45 and the DeLuca factors, in conjunction with resolving all reasonable doubt in favor of the Veteran, it is the Board's opinion that there is sufficient evidence of functional loss due to inability to cross the left leg over the right, with functional loss of ability to bring the left leg toward with right leg with normal strength and endurance, that symptoms of left hip DJD warrant a 10 percent rating under DC 5253. Because the Veteran has noncompensable limitation of thigh flexion, but with functional loss due to pain, and noncompensable limitations of abduction, extension, external and internal rotation, continuation of the 10 percent rating under DC 5010-5252 is warranted as well for this period of the appeal, from March 2005 to November 30, 2006. See also 38 C.F.R. §4.7; Johnston, 10 Vet. App. 80 (1997). However, the left hip disability does not warrant an evaluation in excess of the 10 percent evaluation assigned under DC 5253, because DC 5253 is the maximum schedular evaluation available for limitation of loss of adduction. The Veteran does not meet the criteria for an evaluation in excess of 10 percent for limitation of flexion of the thigh under DC 5010-5252, as the next higher rating requires limitation of flexion to 30 degrees. The 10 percent rating has been assigned based on the Veteran's pain and loss of function, including in other planes of motion, even though the Veteran's flexion to 90 degrees exceeds the limitation of motion required for a 10 percent rating. Given that the Veteran has actual flexion of the left thigh to 90 degrees, an evaluation in excess of 10 percent is not warranted even when considered under 38 C.F.R. § 4.40 and 4.45. See DeLuca. c. Rating from November 30, 2006 to August 1, 2007 As noted above, the Veteran reported increased pain to VA on November 30, 2006, and additional evaluation was scheduled. When evaluated in January 2007, the Veteran reported difficulty using the clutch when he was driving a truck would bother him. Hip flexion was to 90 degrees, with pain beginning at that point. Adduction was limited and painful. March 2007 evaluation reflects that the Veteran had an antalgic gait, as shown both by shoe wear patter and by sole wear pattern. He reported decreased ability to walk. He had markedly diminished range of motion with marked discomfort on abduction and internal rotation. The provider stated that the Veteran had advanced, end-stage osteoarthritis of the left hip with osteophytosis and cyst formation. The Veteran was unable to walk more than 6 blocks and had difficulty putting his shoes and socks on or taking them off. He was advised that he was a candidate for total hip replacement. At his April 2007 VA outpatient treatment visit, the provider discussed which type of hip replacement prosthesis would work best for the Veteran. VA examination June 2007 disclosed hip motion to 80 degrees of flexion, with pain at 75 degrees, extension to 15 degrees, with pain at 10 degrees, abduction to 30 degrees, with pain beginning at 28 degrees. Adduction was from 0 degrees to 5 degrees with pain beginning at 2 degrees. Internal rotation to 5 degrees, with pain beginning at 4 degrees, external rotation to 40 degrees. The Board notes that an answer of "yes" is indicated in response to the question about the Veteran's ability to cross his legs, under certain ranges of motion, with no response indicated for other planes of motion. Given that the examiner stated that the Veteran was unable to internally rotate the hip more than 5 degrees, and unable to abduct the left leg more than 5 degrees, with pain during part of those very limited ranges of motion and the examiner stated that the left hip was unstable, the Board finds the responses indicating that the Veteran could cross his legs inconsistent with the rest of the evidence, and finds that continuation of the 10 percent evaluation under DC 5253 is warranted. The examiner did not provide the measured length of the left leg or of the right leg, but stated that the Veteran's left leg was 5 mm (0.5 cm) shorter than the right. The examiner stated that the Veteran's left hip arthritis resulted in significant effects on the Veteran's occupational activities. Given that the Veteran's left hip was unstable and locking episodes were noted, an additional, separate, compensable evaluation is warranted for instability, by analogy to malunion of the femur with slight impairment of the hip. 38 C.F.R. § 4.71a, DC 5255. The Board finds that a 10 percent evaluation is warranted for left hip instability, but not a higher rating, because the instability and locking were not occurring with such frequency as to affect the Veteran's ability to work. The Veteran was continuing to work full-time, as a truck driver, so the objective evidence demonstrates that the instability and locking was not of such severity as to have come to the attention of the Veteran's employer, had not resulted in injuries that required medical attention, accidents, or the like. The examiner who described this finding in June 2007 was the first examiner to note that the Veteran had instability or locking whose records are available for review. If private providers noted such finding earlier, the Veteran did not identify such records during the more than 8 years since he submitted his claim for an increased rating. Therefore, the Board finds that an additional, separate, compensable, 10 percent evaluation for locking and instability of the left hip, but no higher rating, is warranted from November 30, 2006. Because the Veteran had instability and locking of the hip, as well as the increased limitation of motion in all planes, the Board finds that the functional limitations encompassed in a separate, compensable, 10 percent evaluation for instability of the left hip under DC 5255 do not overlap with the ratings assigned under DC 5253 and DC 5101-5252, and those ratings should continue through this period as well. Therefore, upon consideration and application of the provisions of 38 C.F.R. §§ 4.40, 4.45 and the DeLuca factors, in conjunction with resolving all reasonable doubt in favor of the Veteran, it is the Board's opinion that there is sufficient evidence of symptoms approximating instability caused by the Veteran's left hip disability to warrant the assignment of a 10 percent rating under DC 5255. Because, as discussed above, the instability resulted in infrequent episodes of functional loss, and evaluation in excess of 10 percent is not warranted. The Veteran's limitation of thigh flexion remained noncompensable, at 80 degrees, with pain beginning at 75 degrees, but exceeding the 30 degrees which would warrant a 20 percent evaluation. Again, the 10 percent evaluation assigned under DC 5253 is the maximum schedular evaluation available for limitation of loss of adduction, so a higher rating cannot be assigned for that functional loss. 38 C.F.R. § 4.40 and 4.45; DeLuca, supra. [Continued on Next Page] 2. Claim for rating higher than 30 after left hip arthroplasty, from October 1, 2008 From August 1, 2007 to October 1, 2008, a total disability rating was in effect for the Veteran's left hip arthritis, as the Veteran underwent left hip replacement. Following the expiration of the total temporary rating in October 2008, the Veteran was first examined in December 2010. At that time, the Veteran had returned to work full-time as a truck driver. He reported that this position also required him to drive a forklift. He denied instability, giving way, or locking of the left hip. He complained of morning stiffness, limited endurance for walking, and increased pain following daily activities each daily, described as daily flare-ups of pain. The Veteran's gait was unremarkable. There was no abnormal shoe wear pattern. The Veteran had flexion to 95 degrees without pain, extension to 30 degrees, adduction to 30 degrees, abduction to 45 degrees, external rotation to 45 degrees, and internal rotation to 30 degrees. There was a measured leg length discrepancy of 1.5cm. On examination in December 2012, the Veteran reported that he had not participated in physical therapy since 2007. He felt that his left thigh muscle was getting weaker. He stated that there was a "feeling" like his left hip would pop out. He reported flare-ups of pain with prolonged standing, prolonged sitting, heavy lifting, or getting in and out of a vehicle. Left hip flexion was to 125 degrees with no objective evidence of painful motion. Extension was to 0 degrees with no objective evidence of pain motion. The Veteran retained abduction to 10 degrees or greater and able to toe out more than 15 degrees. There was objective evidence of limitation of internal rotation to 15 degrees, with painful motion beginning at 15 degrees. The Veteran complained of pain beginning at 35 degrees on external rotation. The Veteran complained of pain with abduction at 25 degrees and at 20 degrees of adduction. The Veteran declined to cross his left leg. The examiner opined that there was not a physiologic reason that the Veteran should be unable to cross the left leg. The Veteran was able to repeat all motions three times. There was also localized tenderness and pain. Although the Veteran complained of weakness of the left leg, the examiner described muscle strength as 5/5 in each muscle tested. The examiner described the residual weakness, pain, and limitation of motion of the left hip resulting from left hip arthroplasty as intermediate in degree, less than severe. The surgical scar was not painful or adherent. There was a leg length discrepancy of 1 cm. The examiner opined that this leg length discrepancy was the result of the left hip replacement. Radiologic examination conducted in 2012 revealed that the prosthetic components were in the expected location. The examiner declined to conduct another radiologic examination of the left hip. The Veteran was employed as a truck driver. The examiner stated that the left hip replacement did not affect his ability to perform that employment. The examiner who conducted the December 2012 VA examination specifically noted that the Veteran did not seek VA orthopedic treatment during the period from January 2008 through July 2012, although he did appear for VA examination in May 2010. The Veteran's service-connected right hip disability, status post total right hip replacement, is rated pursuant to 38 C.F.R. § 4.71a, DC 5054 (hip replacement (prosthesis)). Under DC 5054, replacement of the hip with prosthesis warrants a 100 percent rating for a one-year period following implantation of the prosthesis. Thereafter a minimum rating of 30 percent is warranted. A 30 percent rating, the minimum rating under DC 5054, is in effect. 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 the prosthesis. A 90 percent rating is warranted following implantation with painful motion or weakness such as to require the use of crutches. 38 C.F.R. § 4.71a. In this case, no provider has indicated that the Veteran has moderately severe or severe residuals of the left hip replacement. The Veteran continues to work full-time as a truck driver. He did not seek treatment or evaluation of left hip disability during the period from October 1, 2008 to the present, although he has sought evaluation for other disorders. He has not indicated that he has required time off from work or that he is unable to perform any aspect of his job, such as driving a fork lift. In particular, the Veteran remains able to drive a truck, employment which requires an individual to walk, climb, sit, lift, and other manual activities. He does not use any assistive device. There is no evidence that the Veteran requires narcotic pain medications. Such a finding would be inconsistent with the record, which shows that the Veteran has not sought evaluation for left hip pain since October 1, 2008. The Board has considered whether the Veteran's left hip DJD, status post arthroplasty, manifests such symptoms as significant leg shortening. No criterion for a compensable evaluation for leg shortening is met. There is no evidence of instability or locking of the left hip. The Veteran's statement that the hip feels like it will pop out does not warrant an evaluation in excess of 30 percent, given that there is no objective evidence of instability. The Board has considered the Veteran's complaints of pain, status post hip replacement. The Board finds that the complaints of pain and noncompensable limitations of motion are encompassed within the 30 percent evaluation currently assigned. 3. Extraschedular consideration The Board has also considered whether the Veteran's disability presents an exceptional or unusual disability picture, during any of the periods on issue in this appeal, so as to render impractical the application of the regular schedular standards during one or more periods. If there is an exceptional or unusual disability picture, during any of the periods on issue in this appeal, rendering impractical the application of the regular schedular standards, then referral to the appropriate officials for consideration of extra-schedular ratings during the exceptional period is warranted. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). As noted, first, the Board or the RO must determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology, in each of the rated periods. The rating schedule provides for additional or more severe symptoms than currently shown by the evidence. As discussed at length above, the Board has considered, for each period, whether there is a symptom or factor of disability which is not considered in the assigned rating. The Board finds no symptom that is not encompassed in the schedular rating for any considered period. Thus, the Veteran's disability picture for each period is contemplated by the rating schedule under the rating assigned for that period. The assigned, staged, schedular evaluations are, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. Even if the Board determined that the rating criteria do not address all of the effects of the Veteran's service-connected DJD, left hip, for some period, the Veteran's left hip disability does not present exceptional or unusual circumstances. As noted, the Veteran has been able to continue his full-time employment. He has note required hospitalization, expect during a period not addressed in this appeal. The Board does not find this to be an exception or unusual disability picture which might suggest that the Veteran cannot be adequately compensated by the regular rating schedule. The Board declines to refer the matter for extraschedular consideration. ORDER From March 8, 2005, to November 30, 2006, a rating in excess of 10 percent for traumatic arthritis, left hip, is denied. From March 8, 2005, to November 30, 2006, a separate, compensable, 10 percent evaluation for inability to cross the left leg over the right leg is granted. From November 30, 2006 to August 1, 2007, a separate, compensable, 10 percent evaluation for instability of the left hip is granted. From October 1, 2008, an evaluation in excess of 30 percent for left hip DJD, status post left hip arthroplasty, is denied. ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs