Citation Nr: 1325785 Decision Date: 08/14/13 Archive Date: 08/16/13 DOCKET NO. 05-03 541A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUE Entitlement to an increased rating in excess of 10 percent for the service-connected degenerative joint disease of the left hip. ATTORNEY FOR THE BOARD M. Mills, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1982 to March 2000. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in July 2003 by the RO. This matter was previously before the Board in July 2006 and September 2008 and remanded for further development. The claim has been returned to the Board. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. For the initial period of the appeal, the service-connected degenerative joint disease of the left hip is shown to have been productive of a disability picture manifested by a functional loss due to pain that more nearly approximated that of flexion of the thigh limited to 30 degrees. 2. For the period of the appeal beginning on February 7, 2005, the service-connected degenerative joint disease of the left hip is shown to have been productive of a disability picture manifested by a functional loss due to pain that more nearly approximated that of flexion of the thigh limited to 20 degrees. CONCLUSIONS OF LAW 1. The criteria for the assignment of an evaluation of 20 percent, but no more for the service-connected degenerative joint disease of the right hip for the initial period of the appeal have been met. 38 U.S.C.A. § 1155 (West 2002); 38 U.S.C.A. §§ 4.1, 4.3, 4.7, 4.10, 4.71a including Diagnostic Codes 5003-5255 (2012). 2. The criteria for the assignment of an evaluation of 30 percent, but no more for the service-connected degenerative joint disease of the right hip for the period of the appeal beginning on February 7, 2005 have been met. 38 U.S.C.A. § 1155 (West 2002); 38 U.S.C.A. §§ 4.1, 4.3, 4.7, 4.10, 4.71a including Diagnostic Codes 5003-5255 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). 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 any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA 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. 38 C.F.R. § 3.159(b)(1). VA has met the duty to notify and assist in letters dated in April 2003, October 2004, and October 2006. The October 2004 VCAA letter explained the evidence necessary to substantiate the claim for an increased rating. This letter also informed the Veteran of his and VA's respective duties for obtaining evidence. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, the October 2006 VCAA notice letter from VA explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Although fully complaint VCAA notice was not provided to the Veteran until after initial adjudication of the claim on appeal, the claim has since been readjudicated, most recently by a supplemental statement of the case in June 2013, so that any defect in timing of the notice is no more than harmless, non-prejudicial error. Dingess/Hartman v. Nicholson, 19 Vet. App. at 473. With regard to the duty to assist, the claims file contains service treatment records, reports of post-service treatment, and a VA examination report. See 38 U.S.C.A. § 5103A(a)-(d). This appeal was remanded by the Board in July 2006 and September 2008 to send the Veteran VCAA notice to satisfy the decision in Dingess and to schedule him for a VA examination to address the severity of his service-connected disability. Following the remands, the Veteran was sent sufficient VCAA notice in October 2006, but was not afforded a VA examination until March 2011. 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 March 2011 VA examination report provides a detailed description of the Veterans right hip disability, including the effects of pain, weakness, and limitation of motion on functional impairment and occupational functioning. The examination report is adequate for rating of the Veteran's disability under the applicable rating criteria. The March 2011 VA examiner indicated his review of the claims file and the Veteran's private medical records. The examiner indicated that the private medical records were in German. The Board notes, however, that the clinical records dated during the appeal period were translated to English and made available to the examiner. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claims. Essentially, all available evidence that could substantiate each claim has been obtained. There is no indication in the claims file that there are additional available relevant records that have not yet been obtained. II. Increased Rating Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. In determining the current level of impairment, the disability must be considered in the context of the whole-recorded history. 38 C.F.R. §§ 4.2, 4.41. An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment, and the effect of pain on the functional abilities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-06 (1995). The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. Id. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are appropriate for an increased rating claim, if the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The effective date of an award of increased compensation to a Veteran shall be the earliest date as of which it is ascertainable that an increase in disability has occurred, if application is received within one year of such date. 38 U.S.C.A. § 5110(b)(2); 3.400(o)(2). Hip disabilities are rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5250 through 5255. The Veteran's left hip degenerative joint disease has been rated as 10 percent disabling by the RO under 38 C.F.R. § 4.71a, Diagnostic Code 5003-5255. Diagnostic Code 5003 specifies that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. In the absence of limitation of motion, a 10 percent rating may be assigned for arthritis with X-ray evidence of involvement of a major joint or two or more minor joint groups. A 20 percent evaluation will be assigned with X-ray evidence of involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a. Under Diagnostic Code 5255 (impairment of the femur), 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. Under Diagnostic Code 5252, limitation of flexion of the thigh to 45 degrees warrants the assignment of a 10 percent rating. A limitation of flexion of the thigh to 30 degrees warrants the assignment of a 20 percent rating. A limitation of flexion of the thigh to 20 degrees warrants the assignment of 30 percent rating. When flexion of the thigh is limited to 10 degrees, a 40 percent rating is for application. 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, Diagnostic Code 5255. The words slight, moderate, and marked are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. A bone scintigraphy procedure performed in April 1992 during service revealed findings deemed to reflect a reaction to stress and/or a healed stress fracture involving the left femoral neck (the uptake was noted to have been only minimal) The Veteran submitted a March 2004 private doctor report indicating that he had signs of restriction of rotation of the left hip in the end degrees of motion. An X-ray study was interpreted to reveal a small cyst in the weight bearing area of the left femoral head of the left hip with signs of moderate arthritis. In a July 2004 statement, the Veteran's wife indicated that his disability had worsened in that he was not able to engage in sports such as running and playing basketball. She indicated that he walked with a limp and took painkillers. At a March 2011 VA examination, the Veteran complained of having left hip pain, giving away, and decreased speed of joint motion. There was no deformity, instability, stiffness, weakness or incoordination. He denied having episodes of dislocation or subluxation, locking, effusions and symptoms of inflammation. The Veteran described weekly flare-ups of moderate severity and moderate pain when walking up a flight of stairs and lifting over 30 pounds. The X-ray studies revealed findings of slight convexity of the femoral head-neck junction with a possible subchondral cystic change on the frontal view. There was a faint calcification adjacent to the lateral acetabulum that might represent an os acetabulare. There were mild sclerosis of the superior acetabulum and a small inferior humeral head osteophyte. The impression was that of degenerative changes of the left hip. It was recommended that there be clinical correlation for femoral acetabular impingement syndrome. On examination, the Veteran was noted to have an antalgic gait, but did not use any assistive device. There was objective evidence of pain on active motion and following repetitive motion. Left hip range of motion was as follows: flexion was from 0 to 60 degrees, extension was from 0 to 15 degrees, abduction was from 0 to 40 degrees. The Veteran could cross the left leg over the right and could toe out greater than 15 degrees. On repetitive movement, the left hip range of motion was as follows: flexion was from 0 to 55 degrees, extension was from 0 to 15 degrees, abduction was from 0 to 40 degrees. The examiner diagnosed degenerative joint disease of the left and noted that there were "[s]ignificant effects" on usual occupation. Normal range of motion for the hip is defined as follows: flexion to 125 degrees and abduction to 45 degrees. See 38 C.F.R. § 4.71, Plate II (2012). The Veteran complained of left hip pain as well as weekly flare-ups that were severe and lasted for hours and an inability to walk more than one fourth of a mile at the VA examination. The VA examiner also indicated that left hip condition caused an antalgic gait and interfered with the Veteran's ability to engage in several usual daily activities. Based on careful review of the entire record, the Veteran currently is shown to have a serious functional deficit due to pain and following repetitive movement as well as during periods of flare ups involving the left hip. However, during the initial period of the appeal, the non-VA medical evidence showed that Veteran only experienced some functional loss due to pain with X-ray evidence of changes involving the weight bearing area of the femoral head and findings deemed to be reflective of moderate arthritis. A letter submitted by the Veteran's wife at that time served to document the extent of the functional loss by noting that he could not participate in sports, walked with a limp, and experienced "constant pain" that required the use of high doses of pain medication. She added that, given the location of the left hip changes, the bearing of weight caused pain and reduced the quality of his life. After considering the evidence for this period, that included credible lay statements showing limited left hip function precluding participation in certain activities and manifested by a limp and constant pain and medical evidence of moderate arthritis of the left hip, the Board finds that the service-connected left hip disability picture was productive of functional loss the more nearly approximated that of flexion of the thigh limited to 30 degrees. Thus, based on the record as constituted up through 2004, an increased rating of 20 percent, but not higher is for application in this case. Significantly, the only VA examination performed in August 2011 serves to document the progressive nature of the service-connected disability in that a dramatic decrease in actual motion of the left hip is shown. To the extent that an additional restriction of function was shown on repetitive movement and during moderate weekly flare ups, the Board finds that the service-connected left hip disability picture manifested by functional loss due to pain more closely resembles that of flexion of the thigh restricted to 20 degrees. This also is based on consideration of the VA examiner's finding that the Veteran is experiencing "significant effects" on his usual occupation and that flexion was reduced to 55 degrees on repetitive motion at the time of the examination. These factors, in the Board's opinion, prevent the assignment of a higher rating based on limited function in that they do no equate with an overall disability picture consistent with flexion limited to 10 degrees at this time. In addition, due to particular circumstances of this case, the Board finds that this higher level of overall incapacity due to the service-connected left hip degenerative joint disease is found to date from February 7, 2005 when the Veteran's Substantive Appeal was received asserting that he had less than full motion of that joint. Accordingly, on this record, the Board finds that an increased rating of 30 percent, but no more is for application beginning on February 7, 2005. When it considers rating a disability under a Diagnostic Code provision which contemplates limitation of motion the Board also recognizes its duty to consider the extent to which a joint may be subject to additional functional loss because of pain on motion or use. 38 C.F.R. § 4.40, 4.45 (1998); DeLuca v. Brown, 8 Vet. App. 202 (1995). In increasing the Veteran's rating, the Board has considered his functional limitations due to pain and reduction of motion. The Board in this case also has considered other rating codes. There is no showing that the Veteran's right hip is ankylosed or manifested by pathology such as flail joint or nonunion; therefore, ratings under Diagnostic Codes 5250 and 5254 are not appropriate. III. Extraschedular Considerations The Board has considered whether extraschedular consideration for the service-connected bilateral hip disability is required in this case. See Thun v. Peake, 22 Vet. App 111, 115-16 (2008). First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional 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 disability picture has such factors as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for 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. The assignment of staged ratings for the service-connected left hip disability contemplates the signs, symptoms, and limitations reported by the Veteran, to include the functional loss involving of the hip due to pain. The evidence does not present an exceptional or unusual disability picture that renders impracticable the application of the established rating criteria. Accordingly, on this record, referral for consideration for an extraschedular evaluation is not warranted. ORDER An increased rating of 20 percent, but no higher for the service-connected degenerative joint disease of the left hip for the initial period of the appeal is granted, subject to the regulations governing the award of VA monetary benefits. An increased rating of 30 percent, but no higher for the service-connected degenerative joint disease of the left hip beginning on February 7, 2005 is granted, subject to the regulations governing the award of VA monetary benefits. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs