Citation Nr: 1325862 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 11-22 893 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to a rating in excess of 30 percent for a right hip disability, characterized as subtrochantor fracture of the right femur with limitation of motion of the right hip. REPRESENTATION Appellant represented by: Robert Chisholm, Esquire ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran served on active duty from September 1966 to December 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island, which denied an evaluation in excess of 30 percent for a right hip disability. An August 2013 review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. The Veteran's disability of the right hip is manifested by limitation of motion with pain and some functional impairment, but not by nonunion of the femur or by false joint. 2. The schedular rating in effect for the Veteran's service-connected right hip disability adequately contemplate and account for symptoms and manifestations associated with that condition. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for a right hip disability are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5255 (2012). 2. Application of extraschedular provisions is not warranted in this case. 38 C.F.R. § 3.321(b) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), 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. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate 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. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. 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) 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 record reflects that the Veteran was provided all required notice in a letter mailed in February 2010, prior to the April 2010 rating decision on appeal. Letter also advised the Veteran of the disability-rating and effective-date elements, as well elements required to support a claim for increased evaluation for his service-connected disability and of the respective duties of VA and the claimant in obtaining supporting evidence. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). The Federal Circuit Court recently vacated the Court's previous decision in Vazquez-Flores, concluding that generic notice in response to a claim for an increased rating is all that is required. See Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009). Regardless, overall, the Board is satisfied that the RO provided both generic and specific VCAA notice as to the increased rating claim when considering the VCAA letter provided. The Board also finds VA has complied with its duty to assist the Veteran in the development of his claim. In this regard, the Board notes that service treatment records (STRs) have been obtained, as well as post-service treatment records from VA. In addition, the Veteran was provided appropriate VA examinations relating to the increased rating claim on appeal in 2010 and 2012. Neither the Veteran nor his representative has identified any additional outstanding evidence that could be obtained to substantiate the claim. The Board is also unaware of any such evidence. In sum, the Board is satisfied that any procedural errors in the development and consideration of the claim by the originating agency were insignificant and not prejudicial to the Veteran. Accordingly, the Board will address the merits of the claim. Background Service connection was established for a right hip disability in 1969 and a 10 percent evaluation has been in effect from that time until May 2006, from which time a 30 percent evaluation was established. The Veteran's claim for increase was filed in January 2010. A VA examination of the joints was conducted in March 2010 and the claims file was reviewed. The Veteran claimed having progressive limitation of motion, flexibility and use of the joint and the lower leg. It was noted that he did not use assistive devices and was not employed, but had formerly worked as a pipe fitter. The examiner noted that the Veteran walked with a pelvic tilt, minimal limp and good gait and posture and transferred from the chair to examining table without any difficulty. It was noted that the Veteran had sustained injuries to the right femur and pelvis during service (the pelvic injury residuals are already separately service connected). The report mentioned that the Veteran was not able to stand for a prolonged time due to problems with the hip and pelvis. It was noted that activities of daily living were not really affected and that range of motion had been noted and was limited. The examiner stated that there was no history of flare-ups. Range of motion testing revealed flexion was 0 to 100 degrees and to 110 with pressure, without pain, weakness, fatigue, or lack of endurance. Extension was from 0 to 20 degrees without pain, weakness, fatigue, or lack of endurance. Adduction was from 0 to 25 degrees, without pain, weakness, fatigue, or lack of endurance. Abduction was from 0 to 40 degrees 4 times, without pain, weakness, fatigue, or lack of endurance. External rotation was from 0 to 30 degrees, without pain, weakness, fatigue, or lack of endurance. Internal rotation was from 0 to 20 degrees, without pain, weakness, fatigue, or lack of endurance. The examiner commented that there was no apparent increase in pain on repetitive movements and that the hip appeared to be stable. Limitation of motion of the right hip secondary to trauma to the right leg and pelvis. It was noted that there was significant functional impairment in terms of progressing limitation of motion secondary to trauma. In a statement dated in May 2010, the Veteran indicated that his symptoms included listing gait; abnormal posture; left leg shortening; and walking with a limp. He mentioned that when standing, his right leg was flexed all of the time and that he could not put his socks on due to limited motion of the right hip caused by malunion of the pelvis. VA records reflect that the Veteran was seen in August 2010, primarily for complaints of low back pain. At that time, the Veteran complained of leg and calf stiffness. Another VA examination was conducted in October 2012, at which time degenerative joint disease of the hip was diagnosed. Shortening of the bone was also diagnosed (already separately service connected). On examination, the Veteran complained of pain in the right hip and thigh and indicated that he had pain in the low back which he believed was attributable to a change in gait and left hip pain. Daily pain assessed as 5/10 was reported increasing to 7/10 during the day. Right hip flexion was measured as to 100 degrees, with pain at 100 degrees. Extension was reported to end at 5 degrees, with painful motion at 5 degrees. The examiner reported that abduction was lost beyond 10 degrees, adduction was limited such that the Veteran could not cross his legs; and that rotation was limited to the point that the Veteran could not toe out more than 15 degrees. The report reflected that the Veteran was able to perform repetitive testing three times, with results revealing flexion ending at 90 degrees, and extension ending at 5 degrees or greater. The examiner reported that additional limitation of motion following repetitive use testing of the hip and thigh. The report reflects that functional loss/impairment of the right hip was demonstrated as follows: less movement than usual; weakened movement; excess fatigability; incoordination; pain on movement; instability; disturbance of locomotion; and interference with sitting, standing, and/or weight-bearing. Muscle strength testing of the right hip was 4/5 in flexion, abduction, and extension. Localized tenderness was noted. The examiner specifically found that the Veteran did not have ankylosis of the right hip, malunion or non-union of the femur, or flail hip joint; but did have leg length discrepancy of 3 cm, with the right leg being slightly higher. The report reflected that the Veteran had not had total hip joint replacement, or arthroscopic surgery. Other pertinent findings in the report revealed that: the Veteran walked with a limp; his pelvis was malaligned; left leg shorter than right; gait was affected; the left leg swung forward which the Veteran walked; there was instability on examination; and that the right knee was flexed on standing. It was noted that the Veteran used a cane occasionally with flare-ups. Functioning was not found to be so diminished as would be equally served by amputation with prosthesis. The examiner noted that the right hip condition impacted his ability to work, explaining that the Veteran had been employed as a pipefitter and had to stand for long periods of time and crawl into small spaces, causing pain and decreased range of motion. Analysis The Veteran contends that an evaluation in excess of 30 percent is warranted for his right hip disability. In accordance with 38 C.F.R. §§ 4.1, 4.2 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability on appeal. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations that would warrant an exposition of remote clinical histories and findings pertaining to the disability. Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (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. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more of less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Since 2006, the Veteran's right hip disability has been evaluated as fracture of the femur, rated as 30 percent disabling under the criteria of 38 C.F.R. § 4.71a, Diagnostic Code 5255 (impairment of the femur), as follows. A rating of 30 percent is assigned for malunion with marked knee or hip disability. A rating of 60 percent is assigned for fracture of the surgical neck with false joint, or for fracture of the shaft or the anatomical neck with nonunion but without loose motion and with weight bearing preserved with aid of a brace. A rating of 80 percent is assigned for fracture of the shaft or anatomical neck with nonunion with loose motion (spiral or oblique fracture). Alternatively, rating in excess of 30 percent may be warranted with flail joint of the hip (80 percent under Diagnostic Code 5254), or for limitation of flexion of the thigh to 10 degrees (40 percent under Diagnostic Code 5252). Impairment of the thigh in terms of limitation of abduction, adduction or rotation is rated under the criteria of Diagnostic Code 5253, but that diagnostic code does not provide for a rating higher than 20 percent and would thus not be favorable to the Veteran. A rating higher than 30 percent may be warranted under Diagnostic Code 5250 for ankylosis of the hip. However, the clinical evidence does not indicate that the Veteran's right hip is ankylosed according to the 2012 VA examination report, nor does the Veteran so maintain, so that diagnostic code is not applicable. The Board notes at the outset that the Veteran is separately compensated for multiple residuals of pelvic fractures with shortening of the leg, currently assigned a 60 percent rating. The rating for that disability is not on appeal before the Board and manifestations associated with that condition will not be considered herein. On review of the evidence above the Board acknowledges the Veteran has a long-standing disability of the right hip, as documented in the medical records and lay evidence. However, there is no schedular basis for rating higher than the currently assigned 30 percent. As an initial matter, the Veteran does not have fracture of the surgical neck with false joint or nonunion of the hip, for fracture of the shaft or the anatomical neck with nonunion but without loose motion and with weight bearing preserved with aid of a brace, which are threshold criteria for rating higher than 30 percent under Diagnostic Code 5255. In addition, the Veteran's flexion of the right hip, even after allowing for pain and repetitive testing was at worst 100 degrees in 2010 and 90 degrees upon examination of 2012. Under Diagnostic Code 5252, flexion in excess of 45 degrees is not compensable, and rating in excess of the currently-assigned 30 percent requires limitation of flexion to 10 degrees. Thus, application of Diagnostic Code 5252 does not benefit the Veteran. VA must consider the effect of pain and weakness when rating a service-connected disability on the basis of limitation of range of motion. DeLuca v. Brown, 8 Vet. App. 202 (1995), discussing 38 C.F.R. §§ 4.40 and 4.45. In the case of Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. The Board acknowledges that the Veteran is competent to report on his manifestations of pain, impaired mobility, and functional loss and that there has been clinical documentation of manifestations (2012 VA examination report) to include: less movement than usual; weakened movement; excess fatigability; incoordination; pain on movement; instability; disturbance of locomotion; and interference with sitting, standing, and/or weight-bearing. However, the Veteran was able to achieve motion within the noncompensable range despite such manifestations. He reported that he needed to use a cane for mobility, only occasionally, on flare ups. The examination report indicated that no form of right hip surgery or replacement had been, nor was such recommended or scheduled. Essentially, despite indications of painful and limited motion, as well as limitation of function, such manifestations do not provide a basis for a rating in excess of 30 percent for a right hip disability. Additionally, the Veteran is not shown to have flail joint, which would entitle him to higher compensation under Diagnostic Code 5254, or ankylosis, which would entitle him to higher rating under Diagnostic Code 5250. As mentioned, he has not had a hip replacement, which would enable the disability to be rated under the criteria of Diagnostic Code 5054. The Board notes that the Veteran's left leg is shorter than the right leg by 3 cm. Shortened bones in the lower extremity are compensated under Diagnostic Code 5275, but compensable rating (10 percent) begins with shortening of at least 3.2 cm. Accordingly, there is no basis for a separate compensable evaluation for this manifestation and moreover, this condition is considered part of a separately service-connected condition, characterized as multiple residuals of pelvic fractures with shortening of the leg, for which an increased rating claim is not on appeal. VA must consider all favorable lay evidence of record. 38 USCA § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). The Board has accordingly considered the lay evidence offered by the Veteran, primarily in the form of correspondence to VA, in addition to the medical evidence cited above. The Veteran is competent to provide lay evidence regarding the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). However, in this case, the rating criteria described specifically enumerated clinical findings in order to support a higher rating; findings which are much more accurately evaluated by a medical provider than a lay person. As such, the objective clinical findings and VA examination reports are found to have the most probative evidentiary value in this case. Based on analysis of the lay and clinical evidence provided in this case, the Board finds the criteria for a rating higher than 30 percent are not met. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine, but concludes that it provides no assistance in this case. Gilbert, 1 Vet. App. 49, 53-56 (1990); See 38 U.S.C.A. § 5107(b) (West 2002). Accordingly, the claim must be denied. Extraschedular Evaluation and TDIU Consideration of referral for an extraschedular rating requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). For extraschedular consideration, 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, the assigned schedular evaluation is, therefore, adequate, and no extraschedular referral is required. 38 C.F.R. § 3.321(b)(1); Thun at 115. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. Id. The Board concludes that the multiple rating criteria considered above adequately contemplate the nature and symptoms associated with the Veteran's right hip disability as well as pain and functional impairment associated with that condition. A higher rating is available if the condition is shown to be manifested by more severe and/or uncorrected joint damage. As discussed, these criteria were not met as shown in the medical treatment and examination records. Moreover, the Veteran and his representative failed to identify any evidence or provide any argument or basis for the assignment of an evaluation in excess of 30 percent for the right hip disability or indicate why the schedular criteria was not adequate. Therefore, referral of the case for extra-schedular consideration strictly for the right hip disability under 38 C.F.R. § 3.321, is not warranted. ORDER Evaluation in excess of 30 percent for a right hip disability is denied. Referral of the case for extra-schedular consideration is not warranted. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs