Citation Nr: 1328911	
Decision Date: 09/10/13    Archive Date: 09/17/13

DOCKET NO.  09-06 736	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boise, Idaho


THE ISSUE

Entitlement to an evaluation greater than 50 percent from November 1, 2009, for status post left total hip arthroplasty.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

Hallie E. Brokowsky, Counsel



INTRODUCTION

The appellant served on active duty from June 1967 to August 1992.

This matter came before the Board of Veterans' Appeals (the Board) on appeal from a June 2008 rating decision of the Boise, Idaho, Department of Veterans Affairs (VA) Regional Office (RO).

In May 2011, the Board remanded the Veteran's claim for additional development of the record.  The case has been returned to the Board. The RO/AMC complied with the Board's remand instructions; the Veteran was provided a VA examination in order to assess the current severity and manifestations of the Veteran's left hip disorder.  The report has been associated with the Veteran's claims file.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  In the prior decision, the Board addressed the evaluations prior to the assignment of a temporary 100 percent evaluation for the hip.  In addition, the AOJ granted service connection for the lumbar spine.  The only remaining issue is that stated on the title page.

Subsequently, in a May 2012 rating decision, the RO/AMC granted an increased, 50 percent disability evaluation for status post left total hip arthroplasty, also effective from November 1, 2009.  The Veteran continued to disagree with the rating assigned; therefore, the grant of a higher rating is not a full grant of the benefit sought on appeal.  See AB v. Brown, 6 Vet. App. 35 (1993).  

The Virtual VA claims file has been reviewed.  


FINDING OF FACT

Since November 1, 2009, the Veteran's status post left total hip arthroplasty is productive of moderately severe residuals, with pain and some limitation of motion.



CONCLUSION OF LAW

The criteria for a disability rating in excess of 50 percent for status post left total hip arthroplasty have not been met for the rating period since November 1, 2009.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5054 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award.  Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.

In this case, the agency of original jurisdiction (AOJ) issued notice letters, dated in January 2008 and July 2008, to the Veteran.  These letters explained the evidence necessary to substantiate the Veteran's claim for an increased rating, as well as the legal criteria for entitlement to such benefits.  The letters also informed him of his and VA's respective duties for obtaining evidence.  The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice.  As such, there was no defect with respect to timing of the VCAA notice.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).

VA also has a duty to assist a veteran with the development of facts pertinent to the appeal.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1).  VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim.  38 C.F.R. § 3.159(c)(4).

The claims file contains the Veteran's available service treatment records, reports of VA and private post-service treatment, and the Veteran's own statements in support of his claim.  The Veteran was afforded a VA examination responsive to the claim for an increased disability rating.  The Board has reviewed the examination report, and finds that it is adequate for the purpose of deciding the increased rating claim on appeal.  The examination report contains all the findings needed to rate the Veteran's service-connected status post left total hip arthroplasty, including his history and clinical evaluation.  The Board finds that the opinion is adequate.  

The Veteran's appeal for a higher evaluation for status post left total hip arthroplasty is distinguished from the facts in Proscelle v. Derwinski, 2 Vet. App. 629, 633 (1992), where no VA examination was provided during the rating claim, and a veteran specifically stated that his disability "has increased in severity [such] that I rate a higher disability," constituting at least both some assertion by the veteran and some evidence of worsening of disability since the last VA examination.  Proscelle, 2 Vet. App. at 632.  In the Veteran's case currently on appeal to the Board, there is no evidence of worsening of the Veteran's disability since the 2011 VA examination, including no assertion by the Veteran of worsening since the last VA examination.  The Veteran here does not assert that his status post left total hip arthroplasty has worsened since the VA examination; he merely asserts entitlement to a higher disability evaluation.  The Veteran has not submitted evidence of worsening, and the evidence of record, including the medical evidence reflecting on the severity of the disability on appeal, does not suggest that this disability worsened since the most recent VA examination.  As there is no evidence of worsening since the last VA examination, a remand for a new VA examination is not warranted, and is not required by the VCAA.  See Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007) (mere passage of time does not require VA to provide a new medical examination); VAOPGCPREC 11-95 (interpreting that a new examination is appropriate when there is an assertion of an increase in severity since the last examination).  The Veteran has been afforded an adequate examination on the issue decided herein.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). 

Additionally, the Veteran has not alleged that the examination is inadequate to decide the claim being adjudicated herein, so the examination is presumed to have been adequate.  See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of the opinion).  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met.  38 C.F.R. § 3.159(c)(4).

The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claim.  For these reasons, the Board finds that the VCAA duties to notify and assist have been met.

Legal Criteria for Evaluation

Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment.  38 C.F.R. § 4.10.  When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.

The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  

Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged.  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.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).   Here, the disability significantly changed during the initial appeal period.  However, as to the remaining staged period, the disability has not significantly changed and a uniform evaluation is warranted.  It is important to note that based upon the Remand, the AOJ assigned a 50 percent evaluation rather than the 30 percent evaluation.  

More generally, 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 or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45.

In addition, 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.  This regulation also provides that the intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability, and that crepitation should be noted carefully as points of contact which are diseased.

Thus, when assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria.  DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995).

The Court has also held that VA's regulations pertaining to whether a compensable rating is warranted for pain (as shown by adequate pathology and evidenced by the visible behavior in undertaking motion), 38 C.F.R. §§ 4.40 and 4.59, apply regardless of whether the painful motion is related to arthritis.  Burton v. Shinseki, 25 Vet. App. 1, 5 (2011).

Analysis for a Disability Evaluation

On September 16, 2008, a left total hip replacement was performed.

The Veteran is rated for his status post left total hip arthroplasty pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5054; he receives a 50 percent disability evaluation for the remaining period on appeal.  

The Veteran was afforded a VA examination in June 2011.  According to the report, the Veteran complained of decreased speed of motion of the left hip, mild flare-ups, and some functional limitations; standing is limited to one hour and walking is limited to less than a mile.  The Veteran denied the use of assistive devices.  He complained of tenderness and abnormal motion, but denied experiencing instability, stiffness, weakness, incoordination, dislocation or subluxation, effusion, or locking.  There were no deformities.  Upon examination, his gait was normal and there were no symptoms or signs of arthritis.  Range of motion of the left hip was flexion to 100 degrees, extension to 10 degrees, and abduction to 40 degrees.  He could cross his left leg over his right and toe out greater than 15 degrees.  There was evidence of pain on repetitive motion, but no additional limitation of motion.  There was no ankylosis.  X-ray showed a left hip prosthesis, in adequate position, without evidence of fracture.  The Veteran is retired due to age or duration of work, and a kidney problem.  The diagnosis was status post left hip arthroplasty.  The VA examiner noted that the impact of the left hip disability was decreased mobility, increased problems with lifting and carrying, and pain.  There was moderate impact on activities of daily living, except for sports, shopping, recreation, and chores.  

A July 2010 VA treatment record indicates that the Veteran has continued complaints of mild chronic hip pain.  

Under Diagnostic Code 5054, a 50 percent rating is assigned for a hip replacement with moderately severe residuals, including weakness, pain, or limitation of motion.  A 70 percent disability is assigned under this Code for a markedly severe residual weakness, pain, or limitation of motion following implantation of a prosthesis.  A 90 percent disability evaluation is assigned following implantation of prosthesis with painful motion or weakness such as to require the use of crutches.  See 38 C.F.R. § 4.71a, Diagnostic Code 5054.

 Normal range of motion for the hips is zero (0) to 125 degrees flexion and zero (0) to 45 degrees abduction.  See 38 C.F.R. § 4.71, Plate II.

After a review of the lay and medical evidence, the Board finds that the Veteran's status post left total hip arthroplasty is no more than 50 percent disabling.  The current evaluation contemplates painful motion and moderately severe residuals.  A higher evaluation may be assigned only if there are markedly severe residuals.  38 C.F.R. § 4.7 (2012).

However, the objective clinical evidence of record for the entire rating period on appeal shows that the Veteran's status post left total hip arthroplasty residuals are not markedly severe.  Significantly, the Veteran's June 2011 VA examination showed that the Veteran had range of motion of the left hip from zero (0) to 100 degrees in flexion, with abduction to 40 degrees.  The Veteran had pain on motion, but no additional limitation of motion.  His gait was normal, and there was no ankylosis.  The Veteran did not complain of instability, locking, stiffness, effusion, dislocation, weakness, or deformity of the left hip joint.  

There is no indication that he has additional functional impairment, above and beyond the 50-percent level for the left hip, which would support an even higher rating.  In this regard, the Board points out that the Veteran's VA examination report was negative for objective evidence of incoordination, weakness or excess fatigability.  See DeLuca, citing 38 C.F.R. §§ 4.40, 4.45, and 4.59.  There was also no evidence of instability or locking, although the Veteran reports experiencing pain and stiffness.  Although there was limited and painful motion, his pain did not significantly inhibit his range of motion or otherwise create functional limitations.  Rather, when tested his remaining functional use was no worse than 100 degrees of flexion and 10 degrees extension.  

There also is no objective clinical indication that he has other symptoms (e.g., premature or excess fatigability, weakness, incoordination) which otherwise result in any additional functional limitation in his right ankle to a degree or extent that would support a higher rating.  In particular, the June 2011 VA examiner noted that there was a mild increase in pain upon repetitive flexion, but found that there was no additional weakness, fatigability, incoordination, lack of endurance, or additional loss of motion.  As a result, his current 50 percent rating for status post left total hip arthroplasty adequately compensates him for the extent of his pain.  

There is also no basis for any higher rating under any other potentially applicable diagnostic code.  As such, the Board does not find that the medical evidence supports a higher schedular rating.


Lay Pleadings

One function of the Board is to consider the lay evidence and pleadings.  However, other than that recorded during medical evaluations, the record is remarkably lacking in substantive pleadings from the Veteran or the representative.  Under the circumstances, the medical evidence is more probative than any implied pleadings or lay evidence.  We do note that implicit in the appeal is an assertion that the disability is worse than evaluated.  In part, he was correct and a higher evaluation was assigned.  However, to the extent that an evaluation in excess of 50 percent is sought, the pleadings even when accepted as correct do not provide a basis for a higher evaluation. 

Extraschedular Considerations

As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry.  See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  The first question is whether the schedular rating adequately contemplates the Veteran's disability picture.  Thun, 22 Vet. App. at 115.  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 referral is required.  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. 

The discussion above reflects that the symptoms of the Veteran's status post left total hip arthroplasty are fully contemplated by the applicable rating criteria.  As shown above, the criteria include symptoms of reduced range of motion, pain, moderate impact on activities of daily living, each of which were addressed in the VA examination and treatment records and which provided the basis for the disability rating.  Thus, 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.  In any event, the Veteran did not claim, and the evidence does not reflect, that there has been marked interference with employment, frequent hospitalization, or that the Veteran's symptoms have otherwise rendered impractical the application of the regular schedular standards.  The VA examiner did not indicate that the Veteran lost any time from work due to his status post left total hip arthroplasty.  Therefore, referral for consideration of an extraschedular rating for the Veteran's status post left total hip arthroplasty is not warranted.  38 C.F.R. § 3.321(b)(1).

In the absence of exceptional factors associated status post left total hip arthroplasty, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1)  are not met.  See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227   (1995). 


ORDER

Entitlement to an evaluation greater than 50 percent from November 1, 2009, for status post left total hip arthroplasty is denied. 




______________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs