Citation Nr: 1321908 Decision Date: 07/09/13 Archive Date: 07/18/13 DOCKET NO. 06-39 423 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for left knee disability. 2. Entitlement to an initial rating in excess of 10 percent for left hip degenerative arthritis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Bordewyk, Alicia R. INTRODUCTION The Veteran served on active duty from December 1972 to July 1975. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, which, in pertinent part, denied service connection for a left knee disability and granted service connection for left hip strain, with a 10 percent disability rating assigned, effective February 11, 2005. The left hip issue has been recharacterized to reflect the currently rated disability. In May 2011, the Veteran provided testimony at a hearing before the undersigned at the RO. A transcript is of record. The Board remanded each issue in September 2011 and December 2012 for additional development. The issue of entitlement to service connection for a cervical spine disability has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issue of entitlement to service connection for a left knee disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Left hip degenerative arthritis has not been manifested by thigh flexion limited to 30 degrees, ankylosis, motion lost beyond 10 degrees of thigh abduction, flail joint, or impairment of the femur. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for left hip degenerative arthritis have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5250-5255 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). This appeal regarding the left hip disability arises from disagreement with the initial evaluation following the grant of service connection. The courts have held that once service connection is granted the claim is substantiated, additional VCAA notice is not required; and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, records from various federal agencies, and private medical records. He has not identified any outstanding treatment records, despite being asked to do so in January 2013. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. All relevant records have been incorporated herein. Additionally, the Veteran was provided VA examinations in December 2011 and February 2013 to assess the current severity of the left hip disability. Following the physical examination, review of the claims file, and interview of the Veteran, the VA examination reports provided all of the information necessary to properly evaluate the Veteran's left hip disability. During the Board hearing and prehearing conference, the undersigned explained the issues on appeal and asked questions designed to elicit evidence that may have been overlooked with regard to the issues on appeal. These actions provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments, incompliance with 38 C.F.R. § 3.103(c)(2) and consistent with the duty to assist. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). The issue on appeal was previously before the Board in September 2011 and December 2012, when it was remanded for additional development. In accordance with the remand instructions, the Veteran was asked in a January 2013 letter to identify outstanding treatment records (to which he did not respond), records of ongoing VA treatment were obtained and associated with the claims file, the Veteran was provided with the February 2013 VA examination, and a supplemental statement of the case was issued in March 2013. Since the record reflects compliance with the September 2011 and December 2012 remand instructions, the Board may proceed with adjudication of the claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Legal Criteria-Initial Ratings Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Words such as "moderate," "moderately severe" and "severe" are not defined in the 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 (2012). Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (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. See 38 C.F.R. § 4.7 (2012). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function, however, will be expected in all instances. 38 C.F.R. § 4.21 (2012). Evidence to be considered in the appeal of an initial disability rating is not limited to that reflecting the current severity of the disorder. In cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the initial evaluation period. Fenderson v. West, 12 Vet. App. 119 (1999). Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant on motion. Disability of the musculoskeletal system is the inability to perform normal working movement with normal excursion, strength, speed, coordination, and endurance, and that weakness is as important as limitation of motion, and that a part that becomes disabled on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, through atrophy, for example. 38 C.F.R. § 4.40. The provisions of 38 C.F.R. §§ 4.45 and 4.59 also contemplate inquiry into whether there is limitation of motion, weakness, excess fatigability, incoordination, and impaired ability to execute skilled movements smoothly, and pain on movement, swelling, deformity, or atrophy of disuse. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing are also related considerations. The Court has held that diagnostic codes predicated on limitation of motion require consideration of a higher rating based on functional loss due to pain on use or due to flare-ups. 38 C.F.R. §§ 4.40, 4.45, 4.59; Johnson v. Brown, 9 Vet. App. 7 (1997); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Analysis The Veteran's service-connected left hip disability has been evaluated as 10 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5255 for impairment of the femur. Under Diagnostic Code 5255, a rating of 10 percent is warranted for malunion of the femur with slight knee or hip disability. A 20 percent disability rating is assigned for malunion of the femur with moderate knee or hip disability. A 30 percent rating is warranted for malunion of the femur with marked knee or hip disability. A 60 percent rating is assigned for fracture of the femur surgical neck with false joint, and for nonunion of the femur with loose motion, weight bearing preserved with aid of brace. Finally, an 80 percent rating is warranted for fracture of femur shaft or anatomical neck with nonunion and loose motion. 38 C.F.R. § 4.71a. Although the Board acknowledges that the RO assigned the Veteran's disability rating partially under Diagnostic Code 5255, at no time has the evidence of record demonstrated that the Veteran suffers from malunion of the femur. Essentially, the currently-assigned 10 percent disability rating reflects the presence of arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Under Diagnostic Code 5003, degenerative arthritis established by x-ray findings is rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate Diagnostic Codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined and not added, under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Diagnostic Code 5251 provides a maximum rating of 10 percent for limitation of extension of the thigh to 5 degrees. Diagnostic Code 5252 provides a 10 percent rating for limitation of flexion of the thigh to 45 degrees; a 20 percent rating where flexion is limited to 30 degrees; a 30 percent rating where flexion is limited to 20 degrees; and a 40 percent rating where flexion is limited to 10 degrees. Diagnostic Code 5253 provides a 10 percent evaluation when there is limitation of abduction of the thigh such that the legs cannot be crossed or there is limitation of rotation such that it is not possible to toe out more than 15 degrees. A 20 percent rating requires limitation of abduction with motion lost beyond 10 degrees. According to VA standards, full hip range of motion is defined as 0 to 125 degrees hip flexion and 0 to 45 degrees hip abduction. See 38 C.F.R. § 4.71, Plate II. The Veteran underwent VA examination in April 2005 at which time he reported that the pain in his left hip joint occurred intermittently throughout the day lasting for a few minutes and that the pain was brought on by physical activity and alleviated by rest. The Veteran denied receiving any treatment for his left hip joint, using any medication, or missing work because of this condition. The Veteran reported that he was limited in prolonged walking, standing, and bending because of the left hip joint condition. Physical examination demonstrated no evidence of heat, redness, swelling, effusion, drainage, abnormal movement, or instability. Range of hip joint motion was flexion limited at 125 degrees with pain at 120 degrees, extension limited at 30 degrees with pain at 25 degrees, adduction limited at 25 degrees with pain at 20 degrees, abduction limited at 45 degrees with pain at 40 degrees, external rotation limited at 60 degrees with pain at 50 degrees, and internal rotation limited to 40 degrees with pain at 30 degrees. The range of motion of the hip joint was limited by pain without fatigue, weakness, lack of endurance, or incoordination following repetitive use. X-rays of the left hip showed the bony alignment was normal, there was no evidence of fracture or other structural abnormalities, the acetabulum was normal, the hip joint space was maintained, and the surrounding soft tissues were normal. Impression was no significant findings. The Veteran was diagnosed as having bilateral hip strain. At the private orthopedic evaluation in November 2006, physical examination of the left hip showed flexion at 117 degrees, abduction at 40 degrees, internal rotation at 75 degrees, external rotation at 20 degrees, and adduction at 20 degrees. Bilateral hip strain was diagnosed. Regarding his bilateral hip disability, the Veteran was not able to stand or walk for a prolonged time and he was not able to repetitively squat, climb, crawl, or kneel. The Veteran underwent VA examination in March 2008 at which time he reported occasional weakness, stiffness, swelling, giving way, lack of endurance, fatigability, and dislocation. The Veteran denied heat, redness, and locking. The Veteran reported constant burning, aching, sharp, and sticking pain traveling to the lower back with pain level of 8/10 elicited by physical activity and relieved by rest and aspirin. Physical examination demonstrated flexion to 125 degrees with pain at 125 degrees, extension to 30 degrees, adduction to 25 degrees, abduction to 45 degrees, external rotation to 60 degrees, and internal rotation to 40 degrees. The examiner noted that the joint was additionally limited by zero degrees by pain and lack of endurance. It was not additionally limited by fatigue, weakness, or incoordination. X-rays of the left hip showed degenerative arthritic changes and the impression was early osteoarthritis. The Veteran underwent VA examination in December 2011, at which time he reported flare-ups while stooping and bending, resulting in severe pain. Physical examination demonstrated flexion to 115 degrees with pain at 115 degrees, extension greater than 5 degrees with pain at greater than 5 degrees. Abduction was not lost beyond 10 degrees, adduction was not limited such that the Veteran could not cross his legs, and rotation was not limited such that the Veteran could not toe-out more than 15 degrees. The examiner noted that the Veteran had functional loss due to pain which caused interference with sitting, stand, and/or weight-bearing. There was no additional loss of motion after three repetitions. Left hip flexion strength was 5/5. There was no ankylosis of the hip joint, malunion or nonunion of the femur, or flail hip joint. During July 2012 VA treatment, the Veteran reported that his pain had increased for the last three weeks to 9/10 and that laying down reduced the pain to 5/10. Upon these reports that his left hip disability had possibly worsened since the last VA examination, the Board remanded the claim in December 2012 to obtain an up-to-date VA examination. In February 2013, a new VA examination was conducted, where the Veteran reported the same symptoms and an increase in pain with stopping and bending. Physical examination demonstrated flexion to 105 degrees with pain at 105 degrees and extension greater than 5 degrees with no objective evidence of pain. Abduction was not lost beyond 10 degrees, adduction was not limited such that the Veteran could not cross his legs, and rotation was not limited such that the Veteran could not toe-out more than 15 degrees. The examiner noted that the Veteran had functional loss due to pain which caused disturbance of locomotion and interference with sitting, standing, and/or weight-bearing. There was no additional loss of motion after three repetitions. Left hip flexion, abduction, and extension strength was 5/5. There was no ankylosis of the hip joint, malunion or nonunion of the femur, or flail hip joint. Based on the forgoing, it is clear that the record does not demonstrate that the Veteran's left hip disability is manifested by flexion limited to 30 degrees or less or limitation of abduction with motion lost beyond 10 degrees. Therefore, a rating in excess of 10 percent is not warranted under Diagnostic Codes 5252 and 5253. Diagnostic Code 5250 requires ankylosis of the hip. Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Colayong v. West, 12 Vet App 524 (1999) (citing DORLAND'S ILLUSTRATED MEDICAL DICTIONALRY (28TH Ed. 1994) at 86). Diagnostic Code 5254 requires flail joint of the hip. As ankylosis or flail joint of the hip have not been demonstrated, Diagnostic Codes 5250 and 5254 are not for application. 38 C.F.R. § 4.71. Thus, an evaluation in excess of 10 percent for the Veteran's left hip degenerative arthritis is not warranted. The Board has also considered DeLuca v. Brown, 8 Vet. App. 202 (1995), in reaching its conclusion in this case. The functional loss due to pain, however, is adequately contemplated by the current 10 percent rating. The objective evidence does not demonstrate and the Veteran has not identified any functional limitation which would warrant a higher rating under any applicable rating criteria. As such, the provisions of 38 C.F.R. §§ 4.40 and 4.45 have been considered, but they do not provide a basis for an increased rating under these circumstances. Accordingly, the Board finds that the Veteran's symptoms most nearly approximate the current 10 percent rating for the period on appeal. There are no identifiable periods of time during which this condition has been shown to be disabling to a degree that would warrant an evaluation higher than 10 percent, and higher "staged ratings" are not warranted. Therefore, the Veteran's left hip degenerative arthritis does not warrant an evaluation in excess of 10 percent. ORDER Entitlement to a disability rating in excess of 10 percent for left hip degenerative arthritis is denied. REMAND In its December 2012 remand, the Board requested that a VA etiology opinion be obtained, which specifically addressed whether the Veteran's left knee disability was proximately related to a service-connected disability. In the February 2013 VA examination, the examiner addressed whether the left knee disability was secondary to the altered gait caused by his right leg shortening or right knee disabilities alone. The examiner, however, did not address whether left knee disability was proximately caused or aggravated by the other service-connected disabilities, to include his left hip degenerative arthritis, degenerative disc disease of the lumbar spine or the related radiculopathy, and the degenerative arthritis of the left ankle. This opinion must be obtained before the claim can be properly adjudicated. The Board requests that this opportunity is taken to obtain all records of ongoing VA treatment. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA medical records and associate them with the claims file or Virtual VA. All efforts to obtain these records must be documented in the claims file. Such efforts should continue until they are obtained, it is reasonably certain that they do not exist, or that further efforts would be futile. 2. The Veteran should be provided with a new VA orthopedic examination with a qualified physician to determine the etiology of any current left knee disability. The claims file must be made available to and reviewed by the VA examiner in conjunction with the examination. The examiner should provide an opinion as to whether it is at least as likely as not (e.g., a 50 percent or greater probability) that the Veteran's current left knee disability was incurred during or as a result of active service or to service-connected disabilities. The examiner should also provide an opinion as to whether it is at least as likely as not (e.g., a 50 percent or greater probability) that a left knee disability was proximately caused by or aggravated by a service-connected disability, to include the left hip degenerative arthritis, degenerative disc disease of the lumbar spine or the related radiculopathy, and the degenerative arthritis of the left ankle. The examiner must provide a rationale for all opinions provided. The rationale must take into account the Veteran's reports. If the examiner discounts the Veteran's reports, the examiner should provide a reason for doing so. If the examiner concludes that an opinion cannot be provided without result to speculation, the examiner must provide a rationale for this conclusion and should state whether the inability to provide an opinion is due to a need for further information (with the needed information identified) or because the limits of medical knowledge have been exhausted regarding the etiology of the left knee disability. 3. If any benefit for which there is a perfected appeal remains denied, issue a supplemental statement of the case, before returning the case to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2012). ______________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs