Citation Nr: 1326921 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 12-34 568 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to an increased rating for osteoarthritis of the left hip, currently rated as 20 percent disabling. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD Marne Marotta, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1987 to May 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York which denied the claim for increased rating for the left hip and a claim of service connection for the left knee. The Veteran filed a notice of disagreement (NOD) for both claims and the agency of original jurisdiction (AOJ) issued the Veteran a statement of the case (SOC) in November 2012 that addressed both claims. In a subsequent VA Form 9, received in December 2012, the Veteran specifically limited his appeal only to his claim for a higher rating for his left hip osteoarthritis. FINDING OF FACT The Veteran's service-connected osteoarthritis of the left hip is manifested by flexion limited to 80 degrees; and no evidence of limitation of extension or impairment of the thigh. CONCLUSION OF LAW The criteria for entitlement to a disability evaluation in excess of 20 percent for the Veteran's service-connected osteoarthritis of the left hip have not been met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.7, 4.71a and Diagnostic Codes 5010-5252 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's claim was filed as a fully developed claim (FDC) pursuant to the Secretary's program to expedite VA claims. Under this framework, a claim is submitted in a "fully developed" status, limiting the need for further development of the claim by VA. When filing a fully developed claim, a Veteran submits all evidence relevant and pertinent to his claim other than service treatment records and treatment records from VA medical centers, which will be obtained by the VA. Under certain circumstances, additional development, including obtaining additional records and providing the Veteran with a VA medical examination, may still be required prior to the adjudication of the claim. See VA Form 21-526EZ. The FDC form includes notice to the Veteran of what evidence is required to substantiate a claim for an increased disability rating and of the Veteran's and VA's respective duties for obtaining evidence. The notice also provides information on how VA assigns disability ratings. See VA Form 21-526EZ. Thus, the notice that is part of the claim form submitted by the Veteran satisfies the duty to notify. VA also has a duty to assist the Veteran, including obtaining relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). To participate in the fully developed claims process, the Veteran agreed to submit all private treatment records relevant to the claim. In addition, the RO has obtained the Veteran's service treatment records and VA treatment records. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim. Thus, the Board finds that all necessary development has been accomplished. The Veteran was afforded a VA medical examination in September 2012 which the Board finds is adequate in order to evaluate the Veteran's left hip disability because it included an interview with the Veteran, a review of the record, and a full physical examination, addressing the relevant rating criteria. VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on his claim for an increased rating for osteoarthritis of the left hip at this time. II. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. While the regulations require a review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant 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. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40. Raters must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare-ups. 38 C.F.R. § 4.14. The guidance provided by the Court in DeLuca must be followed in adjudicating claims where a rating under the diagnostic codes governing limitation of motion should be considered. 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. 38 C.F.R. § 4.59. With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. 38 C.F.R. § 4.45. For the purpose of rating disability from arthritis, the hip is considered a major joint. 38 C.F.R. § 4.45. Arthritis shown by X-ray studies is rated based on limitation of motion of the affected joint. When limitation of motion would be noncompensable under a limitation-of-motion code, but there is at least some limitation of motion, a 10 percent rating may be assigned for each major joint so affected. 38 C.F.R. § 4.71a, Diagnostic Codes 5003. The Veteran's left hip disability is currently rated 20 percent disabling. The RO initially assigned a rating under Diagnostic Code 5003-5255, but changed it to Diagnostic Code 5003-5253 in the rating action on appeal. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. The hyphenated codes assigned by the RO indicate that degenerative arthritis is the service-connected disorder (Diagnostic Code 5003) and it was rated based on limitation of motion of the thigh (Diagnostic Code 5253) or impairment of the femur (Diagnostic Code 5255). 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 (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 Diagnostic Code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet.App. 625 (1992). The Board has considered whether another rating code is "more appropriate" than the ones used by the RO. Tedeschi v. Brown, 7 Vet.App. 411 (1995). The hip can be rated under Diagnostic Codes 5250-5255. 38 C.F.R. § 4.71a. Assigning multiple ratings based on the same symptoms or manifestations would constitute prohibited pyramiding. 38 C.F.R. § 4.14. However, the Board finds that assigning separate ratings based on limitation of extension, flexion, adduction and rotation of the hip under DC 5251, 5252 and 5253 would not amount to pyramiding under 38 C.F.R. § 4.14. Separate ratings under different diagnostic codes may be assigned where "none of the symptomatology for any of [the] conditions is duplicative of or overlapping with the symptomatology of the other ... conditions." Esteban v. Brown, 6 Vet. App. 259 (1994). Here the key consideration has been met, in that limitation of extension, flexion, adduction, and rotation concern excursions of movements in different planes, and these limitations therefore constitute different bases for rating the hip. See 38 C.F.R. § 4.45. If these limitations are demonstrated, they must be rated separately to adequately compensate for functional loss associated with the service-connected hip disability. See 38 C.F.R. § 4.40; see also VAOPGCPREC 9-2004 (separate ratings may be assigned for disability of the same joint where veteran has both limitation of flexion and limitation of extension of same leg). Diagnostic Code 5251 provides for a 10 percent evaluation for extension of the thigh limited to five degrees. Diagnostic Code 5252 provides for 10, 20, 30 and 40 percent evaluations where flexion of the thigh is limited to 45 degrees, 30 degrees, 20 degrees and 10 degrees, respectively. Diagnostic Code 5253, which contemplates impairment of the thigh, provides for a 10 percent evaluation for limitation of rotation of the thigh of (cannot toe-out more than) 15 degrees, or limitation of adduction (cannot cross legs). A 20 percent evaluation is warranted for limitation of adduction of the thigh where motion is lost beyond 10 degrees. In considering the applicability of other diagnostic codes, the Board finds that Diagnostic Codes 5250 (ankylosis of the hip), 5254 (flail joint of the hip), and 5255 (impairment of the femur) are not applicable as there was no evidence of ankylosis, flail joint, or impairment of the femur in the record. Accordingly, these diagnostic codes may not serve as the basis for an increased rating in this case. The Veteran's service-connected left hip osteoarthritis is currently rated at 20 percent, under Diagnostic Code 5255. In June 2012, the Veteran filed a statement saying his left hip osteoarthritis was worse. The September 2012 VA examination reflects that the Veteran reported that his left hip condition causes physical limitations, including walking and standing for a maximum of one hour and having restricted squatting, bending and lifting. He also reported that he experienced severe flare-ups on average once a week. Physical examination of his left hip revealed flexion to 90 degrees, extension of greater than 5 degrees, external rotation to 30 degrees and internal rotation to 0 degrees. The examiner found that the Veteran had painful motion beginning at 80 degrees. The examiner also indicated that abduction was not lost beyond 10 degrees; the Veteran was able to cross his legs; and rotation is not limited such that the Veteran cannot toe out more than 15 degrees. The Veteran was unable to perform repetitive-use testing with 3 repetitions because of pain. The examiner indicated that the Veteran did not have malunion or nonunion of femur, flail hip joint or leg length discrepancy. X-rays of the hip documented degenerative or traumatic arthritis. The examiner noted no localized tenderness or pain to palpation for joints or soft tissue of the left hip and found no ankylosis. The examiner noted that the Veteran walks with a severe limp. Range of motion testing conducted by the Veteran's private physician (Dr. L.D.) in May 2013 indicated that the Veteran's left hip flexion was limited to 100 degrees; results for extension were not recorded. Abduction was to 30 degrees, internal and external rotation was to 35 degrees, each. Dr. L.D. found tenderness over the groin and trochanter of the left hip, but no deformity or bulge along the inguinal ligament of the hips bilaterally. The Board finds the Veteran is not entitled to an evaluation in excess of 20 percent for his left hip osteoarthritis at any point during the period on appeal. A higher rating is not warranted under Diagnostic Code 5252 as there is no indication, on VA examination or within the treatment records, of limitation of motion of the thigh to 20 degrees flexion. Consideration has been given to the provisions of 38 C.F.R. §§ 4.40 and 4.45 and DeLuca, 8 Vet. App. 202. The Board has considered that the Veteran walks with a severe limp and has indicated that he has weekly flare-ups and has a hard time doing the "simplest tasks on a day to day basis." There is no indication that the Veteran's limitation of motion of the left hip on flare-ups results in limitation of flexion of the thigh at the hip to 20 degrees. Rather, range of motion testing has shown painful motion at 80 degrees of flexion, but no evidence of painful motion on extension. While repetitive testing was not conducted as part of the VA examination because of "pain and safety," treatment records are absent for findings of a more severe loss of range of motion on flare-ups. Increased ratings would not be warranted under Diagnostic Codes 5251 or 5253 and additional separate ratings under those Codes are not warranted because there is no evidence of extension limited to 5 degrees or limitation of rotation which is contemplated by assignment of 10 percent ratings under those Codes. Moreover, the Board finds that the current 20 percent rating compensates the Veteran for the pain he experiences on flare-up, or that interferes with his daily activities. Accordingly, a rating higher than 20 percent for a left hip disability is not warranted. III. Other considerations Finally, the Board has considered whether extraschedular consideration is warranted. The discussion above reflects that the symptoms of the Veteran's left hip disability (mainly pain, tenderness and limitation of motion) are contemplated by the applicable rating criteria. The effects of pain and functional impairment have been taken into account and are considered in applying the relevant criteria in the rating schedule. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202. The effects of the Veteran's disability have been fully considered and are contemplated in the rating schedule; hence, referral for an extraschedular rating is unnecessary at this time. Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) has been raised. Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Here, there is no evidence of unemployability due to the Veteran's service-connected left hip osteoarthritis and further consideration of TDIU is not warranted. ORDER Entitlement to an increased rating excess of 20 percent for osteoarthritis of the left hip is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs