Citation Nr: 1319704 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 09-09 575 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an increased disability rating for service-connected residuals of a fractured left pubic rami (hereinafter, residuals of a left hip injury), rated noncompensable prior to March 28, 2013 and as 10 percent disabling from that date. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. G. Alderman, Counsel INTRODUCTION The Veteran had active military service from December 1987 to April 1988 with additional, unverified service in the Alabama National Guard. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from a June 2008 rating decision by the Department of Veterans' Affairs (VA) Regional Office in Philadelphia, Pennsylvania, assisting the VA Regional Office in Montgomery, Alabama (the RO). The Veteran subsequently perfected an appeal and the claim was transferred to the Board for appellate proceedings. The Board remanded this matter in November 2012 for additional development, which has been completed. See Stegall v. West, 11 Vet. App. 268 (1998). Please 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). FINDINGS OF FACT 1. Prior to March 28, 2013, the Veteran's service-connected residuals of a left hip injury did not manifest as impairment of the femur with slight knee or hip disability, and hip extension was not limited to 5 degrees, hip flexion was not limited to 45 degrees or less, and adduction and rotation were not limited to the extent of preventing her from crossing her legs or toeing out more than 15 degrees. 2. Since March 28, 2013, the Veteran's service-connected residuals of a left hip injury have not manifested as impairment of the femur with moderate knee or hip disability and hip flexion has not been limited to 30 degrees and abduction has not been limited to 10 degrees. CONCLUSION OF LAW 1. The criteria for a compensable disability rating prior to March 28, 2013 for the service-connected residuals of a left hip injury have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5299-5255, 5251, 5252, 5253 (2012). 2. The criteria for a rating in excess of 10 percent from March 28, 2013 for the service-connected residuals of a left hip injury have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5299-5255, 5251, 5252, 5253 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case (SSOC)). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). For an increased-compensation claim, section 5103(a) requires, at a minimum, that the Secretary (1) notify the claimant that to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment; (2) provide examples of the types of medical and lay evidence that may be obtained or requested; (3) and further notify the claimant that "should an increase in disability be found, a disability rating will be determined by applying relevant [DC's]," and that the range of disability applied may be between 0% and 100% "based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment." Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Here, the duty to notify was satisfied by way of a letter sent to the Veteran in February 2008 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed the Veteran of what evidence was required to substantiate the claim and of her and VA's respective duties for obtaining evidence. The Board also finds the Veteran has been afforded adequate assistance in response to her claim. The RO has obtained VA treatment records and private treatment records. In a May 2013 statement, the Veteran points out that the May 2013 SSOC indicates review of treatment records from her private provider dated October 2008 to April 2011. She said her authorization and release form requested records from December 2004 to April 2011. Review of the claims file shows that the records dated from December 2004 were associated with the claims file in February 2008 and that those records have been considered. The Board has reviewed the Veteran's physical claims file and file on the "Virtual VA" system to ensure a total review of the evidence. The Veteran was afforded two VA medical examinations which are addressed below. Both examination reports are adequate for rating purposes as they show that the examiners reviewed the claims file, examined the Veteran, and provided detailed symptomatology related to the Veteran's service-connected disability. Significantly, neither the Veteran nor her representative has otherwise identified, and the record does not indicate, 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 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). II. Increased Rating 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 (2012), and to resolve any doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3 (2012). 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 (2012). 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 (2012). 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). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Yet, the relevant temporal focus for adjudicating an increased rating claim is on the evidence establishing the state of the disability from the time period one year before the claim was filed until a final decision is issued. Hart v. Mansfield, 21 Vet. App. 505 (2007). Thus, staged ratings may be assigned if the severity of the disability changes during the relevant rating period. In the present case, it should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. In this case, the Veteran seeks increased ratings for her service-connected residuals of a left hip injury. Her disability has been rated noncompensable prior to March 28, 2013, and 10 percent disabling as of that date. The RO rated the disability under Diagnostic Code 5299-5255, impairment of the femur. 38 C.F.R. § 4.71a. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2012). In this case, Diagnostic Code 5299 is used to identify musculoskeletal disorders that are not specifically listed in the schedule, but are rated by analogy to similar disabilities under the schedule. See 38 C.F.R. §§ 4.20, 4.27. As noted above, Diagnostic Code 5255 pertains to impairment of the femur. Diagnostic Code 5255 provides ratings for malunion of the femur as follows: with slight hip disability, 10 percent; with moderate hip disability, 20 percent; with marked hip disability, 30 percent. A fracture of the surgical neck of the femur with a false joint is provided a 60 percent rating. A fracture of the shaft or anatomical neck of the femur with nonunion, without loose motion, and with weight-bearing preserved with the aid of a brace is provided a 60 percent rating. Nonunion with loose motion (spiral or oblique fracture) is provided an 80 percent rating. Other potentially applicable diagnostic codes include 38 C.F.R. § 4.71a, Diagnostic Codes 5250 through 5255 (2012). At the outset, the Board observes that there is no evidence of ankylosis of the hip or flail joint. Hence, 38 C.F.R. § 4.71a, Diagnostic Codes 5250 and 5254 are not for consideration. Diagnostic Code 5251 provides for a 10 percent rating when extension of the thigh is limited to 5 degrees. 38 C.F.R. § 4.71a. Under Diagnostic Code 5252, limitation of flexion of the thigh, a 10 percent rating is assigned for flexion limited to 45 degrees; a 20 percent rating is assigned for flexion limited to 30 degrees; a 30 percent rating is assigned for flexion limited to 20 degrees; and a 40 percent rating is assigned for flexion limited to 10 degrees. Id. Under Diagnostic Code 5253, impairment of the thigh, a 10 percent disability rating is warranted for limitation of rotation of or cannot toe-out more than 15 degrees, affected leg or when adduction is limited such that legs cannot be crossed. A 20 percent rating is assigned for limitation of abduction of, motion lost beyond 10 degrees. Id. Private treatment records dating back to December 2004 show complaints of hip and leg pain. A December 2004 computed tomography (CT) scan shows normal hips and mild degenerative changes of the left sacroiliac (SI) joint. March 2007 x-rays of the pelvis were normal. The Veteran had a VA examination in March 2008. The Veteran said she had been prescribed bed rest due to her hips in November and December 2007. She could not sit for more than 35 minutes or engage in prolonged walking. She had flare-ups on cold and rainy days. Flare-ups consisted of increased pain and lasted two to three days. She did not report limitations of range of motion (ROM), functional limitations, or interference with activities of daily living (ADLs). She also denied stiffness, swelling, heat and redness, instability, giving way, locking, fatigability, and lack of endurance. She was taking pills twice per day and had had two steroid injections in 2007. The physical examination of the left hip was normal. ROM testing showed hip flexion from 0 to 120 degrees, extension from 0 to 30 degrees, abduction to 45 degrees, adduction to 24 degrees, external rotation to 50 degrees, and internal rotation to 40 degrees. Flexion and external rotation were mildly limited by body habitus. Additional limitations due to flare-ups could not be determined without resort to speculation. X-rays showed normal hips and mild bilateral sacroiliac degenerative change. The diagnosis was status post remote uncomplicated fracture of the left upper and lower pubic rami, resolved without significant sequalae. The Veteran had another VA examination in March 2013. The examiner summarized past medical history. The Veteran said flare-ups of her arthritis make it difficult for her to walk, stand, and perform ADLs. ROM testing showed hip flexion from 0 to 115 degrees and hip extension at greater than 5 degrees. No additional limitation was observed after repetitive testing. The examiner did not observe deformity, malalignment, drainage, tenderness, edema, redness, heat, spasms, painful motion, abnormal movement, guarding, fatigue, lack of endurance, weakness, atrophy, incoordination, instability or abnormal weight bearing. The diagnosis was stress fracture of the left pubic rami, resolved with no objective pathology of the left hip or other residuals and no functional limitation. In the discussion, the examiner noted the in-service fracture but that the service treatment records did not document A-P compression, lateral compression, or vertical shear of the pelvis, which are necessary to cause any disruption of the SI joints and later arthritis of the SI joints. The examiner did not find documented posterior pelvic symptoms in 1988. X-rays did not show diastases of symphysis pubis or SI joints to indicate that there was such a severe trauma to the pelvis to cause any SI joint complications. Thus, the examiner concluded that the SI joint arthritis is not related to the service-connected fracture of the left pubic rami. The examiner also said that the left groin pain is less likely as not caused by or a result of remote fracture of the left pubic rami because once healed, as in the Veteran's case, there is no pain in the region of the fracture site. The examiner also said the current left hip pain is less likely as not related to the service-connected residuals of a left hip injury because the Veteran's lumbar spine disease and SI joint disease commonly refer pain to or through the hip. The examiner found that the Veteran is employable in sedentary and physical occupations because there is no objective evidence of any residuals of and therefore no limitation of function from, the service connected condition. The Veteran has submitted numerous statements reporting increasing hip pain, to include pain due to arthritis of the sacroiliac joint, which she claims is due to her service-connected disability. She said her hip pain has caused her to miss work and in support of her allegation, she submitted calendars showing days missed. She said she has had to apply for medical leave from work under the Family Medical Leave Act (FMLA) due to her symptoms. She submitted her FMLA applications. The Veteran also said she was taking aquatics classes at a fitness facility to help with the pain. Additionally, she reported that her physicians increased her medications and submitted pharmacy records in support of her claim. The Board has considered all of the evidence, including the Veteran's complaints of pain and functional limitation. However, the preponderance of the evidence is against a finding of increased ratings for any period. 38 U.S.C.A. 5110 (West 2002); see also Hart, 21 Vet. App. at 509. Prior to March 2013, the Veteran's service-connected disability did not manifest as malunion of the femur with slight hip disability. While the March 2008 VA examiner found a slight limitation of flexion during the examination, the limitation was attributed to the Veteran's body habitus, or body size, and not due to the service-connected condition. No other limitations of ROM or abnormalities were noted. Therefore, without impairment of the femur manifesting as malunion with slight hip disability, a compensable rating is not warranted under Diagnostic Code 5255. 38 C.F.R. § 4.71a. A compensable rating is not warranted under any other diagnostic code because the Veteran's hip extension was not limited to 5 degrees, hip flexion was not limited to 45 degrees or less, and adduction and rotation were not limited to the extent of preventing her from crossing her legs or toeing out more than 15 degrees. See 38 C.F.R. § 4.71a, Diagnostic Codes 5251 through 5253. As of March 2013, the Veteran's disability has not manifested as malunion of the femur with moderate hip disability. At most, the March 2013 VA examination revealed slight limitation of hip flexion, which measured from 0 to 115 degrees. The examiner did not attribute this limitation to body habitus. No other abnormalities were noted. Therefore, a rating in excess of 10 percent is not warranted under Diagnostic Code 5255. 38 C.F.R. § 4.71a. A rating in excess of 10 percent for the service-connected disability is not warranted under any other potentially applicable diagnostic code because the Veteran's hip flexion is not limited to 30 degrees. Id. at Diagnostic Code 5252. Further, the Veteran has not argued that her abduction has been limited to 10 degrees. Id. at 5253. The Board has considered whether increased ratings are warranted under DeLuca, 8 Vet. App. at 204-7, and 38 C.F.R. §§ 4.40 and 4.45. However, neither examiner observed additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use. The Board has also considered the Veteran's complaints of pain and arthritis, which she claims is secondary to her service-connected residuals of a hip injury. However, per the March 2013 VA examiner, the Veteran's initial injury was not of the severity to cause arthritis or other complications of the SI joints, thus, the examiner found that the SI joint arthritis is not related to the service-connected fracture of the left pubic rami. As such, the rating criteria for arthritis are not applicable in this case. Regarding her complaints of pain, the March 2013 examiner said her left groin pain is not due to her service-connected disability because once her fractures healed, there was no pain in the region of the fracture site. The examiner also opined that the current left hip pain is less likely as not related to the service-connected residuals of a left hip injury because the Veteran's lumbar spine disease and SI joint disease commonly refer pain to or through the hip. Consequently, the Board finds that additional or increased ratings are not warranted under the criteria for arthritis or based on complaints of pain. Based on the foregoing, a compensable rating prior to March 28, 2013 and a rating in excess of 10 percent from that date is not warranted for service-connected residuals of a fractured left pubic rami. The Board has considered whether the benefit of the doubt rule applies the Veteran's appeal. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). However, a preponderance of the evidence is against a higher evaluation; thus, this rule does not apply and the claim for an increased evaluation must be denied. Extraschedular consideration The Board has also considered the potential application of various other provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and is therefore found 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 Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary of Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected residuals of a fractured left pubic rami is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. There is no evidence in the medical records of an exceptional or unusual clinical picture. The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted. Finally, the Board has considered the applicability of Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a claim for a total rating based on individual unemployability (TDIU) is part of an increased rating claim when such a claim is expressly raised by the Veteran or reasonably raised by the record). However, while the Veteran has referred to some difficulties finding employment, she has not alleged, and the record does not suggest, that her service-connected residuals of a fractured left pubic rami have rendered her unemployable. As a consequence, a Rice TDIU claim is not before the Board for consideration in this appeal. ORDER Entitlement to an increased disability rating for the service-connected residuals of a fractured left pubic rami, rated noncompensable prior to March 28, 2013, is denied. Entitlement to an evaluation in excess of 10 percent from March 28, 2013 for the service-connected residuals of a fractured left pubic rami is denied. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs