Citation Nr: 1325024 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 10-05 464 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to an increased evaluation for right hip synovitis, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Osegueda, Associate Counsel INTRODUCTION The Veteran had active service from February 1985 to February 1989. This matter comes before the Board of Veterans' Appeals (Board) from a July 2009 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Portland, Oregon. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals VA treatment records that are relevant to the issue on appeal and a brief submitted by the Veteran's representative in support of the claim. FINDING OF FACT The Veteran's right hip disability manifests as flexion to 80 degrees, with remaining functional flexion greater than 45 degrees, extension to 0 degrees, and abduction to 50 degrees with subjective complaints and objective evidence of pain. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for the service-connected right hip disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5020, 5252 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial disability-rating and effective-date elements of a service connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board notes that the Veteran is challenging the disability evaluation assigned for right hip synovitis, currently evaluated as 10 percent disabling. Specific to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. §5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing his or her entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of alternative diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO provided the Veteran with notice in June 2009, prior to the initial decision on the claim in July 2009. Therefore, the timing requirement of the notice as set forth in Pelegrini has been met and to decide the appeal would not be prejudicial to the claimant. Moreover, the requirements with respect to the content of the notice were met in this case. Specifically, the letter informed the Veteran of what evidence was needed to substantiate his claim and of the division of responsibilities in obtaining such evidence. The letter also explained how disability ratings and effective dates are determined. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records and all identified and available post-service medical records are in the claims file and were reviewed by both the RO and the Board in connection with the claim. The Veteran has not identified any other outstanding records that are pertinent to the issue currently on appeal. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the Veteran was afforded a VA examination in July 2009 in connection with his claim. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations are adequate to decide the case because, as shown below, they were based upon consideration of the Veteran's pertinent medical history, as well as his lay assertions and current complaints, and they describe the service-connected right hip disability picture in detail sufficient to allow the Board to make a fully informed determination. Id. In this case, the VA examination report documents that the examiner reviewed the claims file, performed the appropriate testing, recorded the results, elicited in depth medical histories from the Veteran with respect to his right hip symptoms, and provided an opinion as to the functional impact of his right hip based on these results and the Veteran's history; thus, the Board finds the examination was adequate for rating purposes. There is also no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected right hip disability since he was last examined. 38 C.F.R. § 3.327(a) (2012). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. Thus, there is adequate medical evidence of record to make a determination in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4) (2012). VA has further assisted the Veteran and his representative throughout the course of this appeal by providing them with a Statement of the Case (SOC) which informed them of the laws and regulations relevant to the Veteran's claim. The Board concludes that the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim, and he did, in fact, participate. Washington v. Nicolson, 21 Vet. App. 191 (2007). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the particular claim on appeal. He has been given ample opportunity to present evidence and argument in support of his claim. All relevant evidence necessary for an equitable disposition of the Veteran's appeal of this issue has been obtained, and the case is ready for appellate review. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). Laws and Regulations 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 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as here, entitlement to compensation has already been established and increases in the disability ratings are at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service- connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the disability has not significantly changed and a uniform evaluation is warranted. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). The Veteran seeks an increased rating for his right hip disability, currently rated as 10 percent disabling. He is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5020, for synovitis and limitation of flexion of the thigh, DC 5252. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. In accordance with Diagnostic Code 5003, degenerative arthritis is rated on the basis of limitation of motion for the specific joint involved. Here, the Veteran's right hip synovitis is evaluated under Diagnostic Code 5252, for limitation of flexion of the thigh. Under Diagnostic Code 5252, 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. 38 C.F.R. § 4.71a. Under Diagnostic Code 5250, a 60 percent evaluation is assigned for favorable ankylosis of the hip, in flexion at an angle between 20 degrees and 40 degrees, and slight adduction or abduction. A 70 percent evaluation is assigned for intermediate ankylosis of the hip. A 90 percent evaluation is assigned for unfavorable or extremely unfavorable ankylosis of the hip, the foot not reaching the ground, crutches necessitated. See 38 C.F.R. § 4.71a . Under Diagnostic Code 5251, a 10 percent disability rating is warranted for thigh limitation of extension limited to 5 degrees. Normal range of hip flexion is from 0 to 125 degrees. Normal hip abduction is from 0 to 45 degrees. 38 C.F.R. § 4.71a, Plate II. 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. See 38 C.F.R. § 4.71a. Under Diagnostic Code 5255 for impairment of the femur code, a 20 percent disability rating applies where the Veteran has malunion of the femur with a moderate hip disability. A 30 percent disability rating applies where the Veteran has malunion of the femur with a marked hip disability. A 60 percent disability rating applies where the Veteran has a fracture of the surgical neck of the femur, with a false joint. A 60 percent disability rating also applies where the Veteran has a fracture of the shaft or anatomical neck of the femur with nonunion, without loose motion, and where weight bearing is preserved with the aid of a brace. An 80 percent disability rating applies where the Veteran has a fracture of the shaft or anatomical neck of the femur with nonunion, and with loose motion (spiral or oblique fracture). The terms "mild," "moderate" and "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. As with the knee, separate evaluations may be assigned for compensable limitation in each plane of motion. Factual Background In a February 1993 rating decision, the RO granted service connection for right hip synovitis or fasciitis and assigned a noncompensable evaluation effective from July 8, 1992. In a July 2007 rating decision, the RO granted an increased evaluation for right hip synovitis and assigned a 10 percent evaluation effective from February 26, 2007. In May 2009, the Veteran submitted a claim for an increased evaluation for his service-connected right hip synovitis. In Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court observed that when a claim for an increased rating is granted, the effective date assigned may be up to one year prior to the date that the application for increase was received if it is factually ascertainable that an increase in disability had occurred within that time frame. See 38 U.S.C.A. § 5110 (West 2002). In a January 2009 VA treatment note, the Veteran reported he had constant, chronic, aching pain and swelling in his right hip. He indicated that nothing alleviated his pain. In the May 2009 claim, the Veteran stated that he had flare-ups of pain one to two times per week, pain through his groin area, difficulty bending over or bending down to pick items up, and difficulty carrying anything over five pounds during flare-ups. In a June 2009 statement, the Veteran reported that his hip pain flared up two or more times per week. He indicated that it hurt to walk any distance, sit for any amount of time, bend over, or lift anything heavier than five pounds during flare-ups. He stated that when he walked, the pain radiated to the right side of his groin and felt "like a hernia." He also noted that he had difficulty sleeping due to the pain during flare-ups. He stated that he took sleeping and pain pills to sleep, but he still woke up two or three times per night due to his right hip pain. He rated his pain as 9 out of 10 in severity during flare-ups. During a July 2009 VA examination, the Veteran reported that he had right hip pain, giving way, instability, stiffness, incoordination, decreased speed of joint motion, pain in the groin, and tenderness. He denied any episodes of dislocation or subluxation, locking, or effusions. He reported that he had severe flare-ups of pain on a weekly basis for one to two days. He noted that his pain was precipitated by prolonged sitting and ambulation. He treated his right hip pain with nonsteroidal anti-inflammatory medications and exercise. He noted a poor response from the treatments. He denied any constitutional signs of arthritis and incapacitating episodes. He reported that he was able to stand for 15 to 30 minutes and he was able to walk one-quarter of a mile. He denied the use of any assistive devices or aids. A physical examination showed that the Veteran's gait was normal and there was no evidence of abnormal weight bearing. The examiner noted findings of tenderness, abnormal motion, and guarding of movement in the right hip. Range of motion testing revealed right hip flexion from 0 to 80 degrees, extension from 0 to 50 degrees, and abduction from 0 to 50 degrees. There was no joint ankylosis. The Veteran was unable to cross his right leg over his left leg. He was able to point his right toes out greater than 15 degrees. The examiner noted that there was objective evidence of pain with active motion on the right side and following repetitive motion. There were no additional limitations after three repetitions of range of motion. An x-ray study of the right hip showed an essentially negative examination of the pelvis and hips. During the VA examination, the Veteran reported that he was a retired mechanic. He indicated that he retired in 1999 due to physical problems, including right hip problems, and psychiatric problems. The examiner noted that the Veteran's right hip synovitis had significant effects on his usual occupation, including decreased mobility, difficulty lifting and carrying, decreased strength in his lower extremity, and pain. In an October 2010 VA treatment note, the Veteran reported he had constant, chronic, radiating right hip pain exacerbated by activity and alleviated by rest. In December 2010 and October 2011 VA treatment notes, the Veteran reported he had constant, chronic, dull and sharp right hip pain that was exacerbated by activity and changes in temperature and weather. He indicated that his hip pain was alleviated with rest, heat, ice, and medication. Analysis Initially, with respect to the Veteran's reports of groin pain that he has associated with his service-connected right hip disability, the Board notes that a review of the VA treatment notes associated with the record shows the Veteran was diagnosed with left groin strain in October 2008. He described pain radiating into his groin area after pushing something, like a lawnmower, or standing to walk. The examiner noted that the Veteran had a very slight hernia bulge on the left side. Additionally, a September 2009 VA computed tomography (CT) scan of the abdomen and pelvis revealed a hiatial hernia. As discussed above, the Veteran seeks an increased rating for his right hip disability, currently rated as 10 percent disabling. He is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5020-5252, for synovitis. Here, the Veteran has been assigned a 10 percent evaluation based upon limitation of motion under Diagnostic Code 5252, for limitation of flexion of the thigh. The evaluation contemplates painful motion and it is consistent with limitation of flexion to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5252. See 38 C.F.R. § 4.59. In order to warrant a higher evaluation, the Veteran must have the functional equivalent of limitation of flexion to 30 degrees. See 38 C.F.R. § 4.7; DeLuca, supra. In considering the foregoing criteria of Diagnostic Code 5252, there is no lay or medical evidence that the Veteran demonstrated a functional restriction in flexion in excess of 45 degrees. He demonstrated some limitation of motion on VA examination in July 2009 (with limitation of flexion to 80 degrees with active range of motion); however, the limitation of flexion fell far short of that required for a 20 percent disability rating under Diagnostic Code 5252. The evidence shows that he retained greater remaining function than 45 degrees of flexion of the right hip. Although he has complained of flare-ups, popping and instability such findings have not been confirmed at any time during the appeal and the complaints are not credible. Even if credible, such complaints do not establish a functional restriction greater than that contemplated by the current evaluation. Furthermore, despite the pleadings, the examination disclosed that he had a normal gait, again establishing the he retains significant functional use of the extremity. In considering the foregoing criteria of Diagnostic Code 5251, the Veteran demonstrated full extension to zero degrees on VA examination in July 2009. As noted above, limitation of extension to 5 degrees warrants a 10 percent disability rating. 38 C.F.R. § 4.71a. Under Diagnostic Code 5253, a 20 percent rating is assigned for limitation of abduction of, motion lost beyond 10 degrees. See 38 C.F.R. § 4.71a. However, during the July 2009 VA examination, the Veteran demonstrated right hip abduction from 0 to 50 degrees. Additionally, the Board notes that the criteria of Diagnostic Code 5250 are not for application in this case because the Veteran has not demonstrated ankylosis of the right hip. Likewise, the criteria of Diagnostic Code 5255 is inapplicable because there is no evidence of malunion or fracture of the femur. 38 C.F.R. § 4.71a. The Board has considered the testimony and statements of the Veteran as to the extent of his current symptoms. He is certainly competent to report that his symptoms have worsened. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, in evaluating a claim for an increased schedular rating, VA must consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. Massey v. Brown, 7 Vet. App. 204, 208 (1994). In sum, the Board finds that the weight of the credible evidence demonstrates that the Veteran's service-connected right hip disability supports the criteria of a disability rating no greater than 10 percent for limited or painful motion of a major joint. Although he has limited motion in more than one plane, none are otherwise compensable in degree and separate evaluations are not warranted. Extraschedular Consideration In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1). However, in this case, the Board finds that the record does not show that the Veteran's migraine headache disability is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). 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 Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1) ) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology, characterized by functional limitation of flexion to 45 degrees. As discussed above, there is a higher rating available under the Diagnostic Code, but the Veteran's disability is not productive of such manifestations. AS noted earlier, the complaints of popping and instability are not credible and do not provide a basis to assign an extraschedular evaluation. Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected right hip synovitis under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008). ORDER An increased evaluation for right hip synovitis, currently evaluated as 10 percent disabling, is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs