Citation Nr: 1318450	
Decision Date: 06/06/13    Archive Date: 06/11/13

DOCKET NO.  08-30 551	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUE

Entitlement to an initial evaluation in excess of 10 percent for degenerative disease of the right hip, status-post surgical fixation of pelvic fracture.  


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

J. Meawad, Counsel


INTRODUCTION

The Veteran served on active duty from August 1987 to November 1991, from December 2001 to September 2002, and from August 2005 to November 2006.  

This matter is before the Board of Veterans' Appeals (Board) on appeal of a September 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado.

The Veteran requested a Board hearing, however, he withdrew that request in October 2008.

In April 2010, the Board remanded the case for further development.  This case is once again before the Board for appellate review.


FINDING OF FACT

The Veteran's right hip disability is manifested by limitation of motion without pain, at worst, of 120 degrees of flexion, 0 degrees extension, 40 degrees abduction, 25 degrees adduction, 25 degrees internal rotation, and 45 degrees external rotation.


CONCLUSION OF LAW

The criteria for an initial evaluation greater than 10 percent for degenerative disease of the right hip, status-post surgical fixation of pelvic fracture, have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5010, 5251, 5252, 5253 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  

The appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection.  Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial and will not be discussed.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  

The Veteran's service treatment records and post service treatment records have been obtained.  38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159.  The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration.  38 C.F.R. § 3.159 (c)(2).  VA examinations were conducted in May 2007 and July 2010; the Veteran has not argued, and the record does not reflect, that these examinations were inadequate for rating purposes.  Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.159(c)(4).  As the reports of the VA examinations are based on the Veteran's medical history and described the disability in sufficient detail so that the Board's decision is a fully informed one, the examinations are adequate.  Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007).  Moreover, as the 2010 examination was conducted as requested by the Board's April 2010 remand, Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary.  See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)).  

There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009); Dingess/Hartman, 19 Vet. App. at 486.  

II.  Higher rating

The Board has reviewed all the evidence in the record.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder.  38 U.S.C.A. § 1155.  Separate diagnostic codes identify the various disabilities.  Id.  It is necessary to evaluate the disability from the point of view of the veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any doubt regarding the extent of the disability in the veteran's favor.  38 C.F.R. § 4.3.  

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.  

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).  

At the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found.  Fenderson v. West, 12 Vet. App 119 (1999).  

In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations, which are potentially applicable, based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy.  Under 38 C.F.R. § 4.59, painful motion is an important factor of disability from arthritis and actually painful joints are entitled to at least the minimum compensable rating for the joint.

Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must be considered.  DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995).  Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant.  Johnston v. Brown, 10 Vet. App. 80, 85 (1997).  Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991).  

In the rating decision on appeal, the Veteran was granted service connection for degenerative disease of the right hip, status-post surgical fixation of pelvic fracture, and was assigned a noncompensable disability rating, effective November 2, 2006.  In a May 2011 rating decision, the RO granted a higher rating of 10 percent, effective November 2, 2006, and a separate 10 percent disability rating for surgical scar of the right hip, effective November 2, 2006.  The Veteran has not appealed the rating for the scar.

The Veteran's right hip disability has been rated under Diagnostic Code 5010, pertaining to traumatic arthritis.

Arthritis due to trauma, substantiated by X-ray findings, is rated as degenerative arthritis.  Degenerative arthritis when 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. § 4.71a, Diagnostic Codes 5003 and 5010.  To that end, Diagnostic Code 5252 provides for 10, 20, 30, and 40 percent evaluations when hip flexion is limited to 45, 30, 20, and 10 degrees, respectively.  38 C.F.R. § 4.71a.  Similarly, Diagnostic Code 5251 provides for a single 10 percent evaluation when hip extension is limited to 5 degrees.  Id.  Normal hip flexion is to 125 degrees; normal hip abduction is to 45 degrees.  38 C.F.R. § 4.71, Plate II.  Limitation of abduction with motion lost beyond 10 degrees warrants a 20 percent evaluation under Diagnostic Code 5253.

The probative and persuasive evidence of record does not support an initial evaluation greater than 10 percent for the Veteran's right hip disability under Diagnostic Code 5251 or 5252.  During the May 2007 VA examination, range of motion of the right hip was normal with 0 degrees extension, 125 degrees flexion, 45 degrees abduction, 25 degrees adduction, 40 degrees internal rotation, and 60 degrees external rotation.  X-rays showed degenerative arthritis.  

Post service treatment records (apparently from reserve service) note the Veteran complained of right hip pain with running in 2007.  It was noted he was able to 
run for deployment issues, but he was placed on a limited profile of no running, although the walk test was permitted.  On the 2010 VA examination, he reported intermittent inguinal pain that lasts for a few seconds.  He denied locking or stiffness.  He stated his daily activities are not impaired and he can stand, walk and sit with no limit but that it does hurt on occasion he his sits for very long.  He can run with no restriction.  He has not missed work.  His gait is normal and he denied flare ups.  During the July 2010 VA examination, range of motion of the right hip was 120 degrees of flexion, 0 degrees extension, 40 degrees abduction, 25 degrees adduction, 25 degrees internal rotation, and 45 degrees external rotation.  The examiner noted there was no change in range of motion during repeated testing and no additional lose of motion due to pain, weakness, impaired endurance, incoordination or instability.  

Accordingly, an initial evaluation greater than 10 percent under Diagnostic Codes 5251 and 5252 is not warranted.

The evidence of record also does not reflect that the Veteran's right hip disability results in a level of functional loss meriting an initial evaluation greater than 10 percent.  See DeLuca, 8 Vet. App. at 206; 38 C.F.R. §§ 4.40, 4.45, 4.59.  Both VA examiners stated that in considering Deluca criteria, there was no change in active or passive motion during repeat testing against resistance and no additional losses of range of motion for the hip/pelvis due to pain, weakness, incoordination, acute flares, or impaired endurance.  The July 2010 VA examiner found that hip flexion caused only slight right inguinal discomfort.  The evidence of record does not show that the Veteran's range of motion of the right hip is affected by pain or functional loss.  Therefore, an initial evaluation greater than 10 percent is not warranted based on the criteria in 38 C.F.R. §§ 4.40 and 4.45, and DeLuca.  

Other potentially applicable diagnostic codes pertaining to the hip have been considered.  See Schafrath, 1 Vet. App. at 595.  However, as shown above, abduction of the thigh is not limited to 10 degrees or less.  Moreover, there is no evidence of hip ankylosis, malunion of the femur, or flail hip joint.  Therefore, Diagnostic Codes 5250, 5253, 5254, and 5255 are not for application.  38 C.F.R. § 4.71a.  

In sum, the Board finds that the preponderance of the evidence indicates that the Veteran's disability picture most nearly approximates the criteria required for the currently assigned 10 percent rating, and that an increased rating is therefore not warranted.  38 U.S.C.A. § 5107(b).

The Board has also considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted.  See 38 C.F.R. § 3.321(b)(1) (2012); 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.").  Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology and provides for additional or more severe symptoms than currently shown by the evidence; thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).  Consequently, referral for extraschedular consideration is not warranted. 


ORDER

Entitlement to an initial evaluation in excess of 10 percent for degenerative disease of the right hip, status-post surgical fixation of pelvic fracture, is denied.



____________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs