Citation Nr: 1329797 Decision Date: 09/17/13 Archive Date: 09/25/13 DOCKET NO. 07-25 456 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to an increased evaluation for a left hip disability, to include entitlement to an evaluation in excess of 10 percent disabling prior to October 11, 2012, and in excess of separate 10 percent and 20 percent ratings on and after October 11, 2012. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD McBrine, M., Counsel INTRODUCTION The Veteran served on active duty from January 1970 to September 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from September 2007 and April 2008 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The issue of an increased evaluation for the Veteran's left hip was previously remanded in January 2010 and August 2012. After the prior remand, the Veteran was granted separate ratings for his left hip disability based on limitation of flexion and limitation of abduction, and the Veteran's claim was considered to encompass a claim for TDIU, since the Veteran claimed to be unemployability due to this disability. As such, the remaining issues in appellate status have been recharacterized as above. The Board notes that the issue of entitlement to an earlier effective date for the award of a 20 percent rating for limitation of abduction was adjudicated in an April 2013 Statement of the Case, and that the Veteran suggested in his VA Form 9 that he did not disagree with the effective date of October 11, 2012, for that award. However, the Board notes that the potential for a separate rating for limitation of abduction prior to that date is part and parcel of the claim for an increased rating for the left hip disability that is presently on appeal and will be considered herein below. FINDINGS OF FACT 1. For the period prior to October 13, 2011, the Veteran's service connected left hip disability was manifested by pain, stiffness, and limitation of extension of the thigh. 2. For the period from October 11, 2012, the Veteran's service connected left hip disability was manifested by pain, stiffness, limitation of extension, limitation of flexion, and limitation of abduction. 3. Service connection is currently in effect for PTSD, at a 50 percent evaluation, degenerative disc disease of the lumbar spine at a 20 percent evaluation; left hip limitation of abduction, at a 20 percent evaluation; tinnitus, at a 10 percent evaluation; left hip limitation of flexion, at a 10 percent evaluation; left hip limitation of extension, at a 10 percent evaluation; diabetes at a 10 percent evaluation; and hearing loss at a noncomepnsable evaluation. These ratings combine to an 80 percent evaluation. 4. The Veteran's service-connected disabilities, combined, result in such severity as to render him unable to obtain or maintain substantially gainful employment. CONCLUSIONS OF LAW 1. For the period prior to October 13, 2011, the criteria for an evaluation in excess of a single 10 percent rating in the left hip are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.71(a), including Diagnostic Codes 5251 (2012). 2. For the period from October 11, 2012, the criteria for separate evaluations of 10 percent for limitation of left hip extension under Diagnostic Code 5251, 10 percent for limitation of left hip flexion under Diagnostic Code 5252, and a 20 percent evaluation for left hip limitation of abduction under Diagnostic Code 5253 are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.71(a), including Diagnostic Codes 5251, 5252, 5253 (2012). 3. The criteria for a total disability rating for compensation based on individual unemployability (TDIU) have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.16, 4.19, 4.25, 4.26 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (finding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Stegall Considerations As noted above, the Board previously remanded this case in January 2010 and August 2012 for further development, specifically for VA examinations with opinions to adequately address the current level of severity of the Veteran's thigh disability. The Veteran was provided with appropriate VA examinations for this disability, and his claim was readjudicated most recently in an April 2013 SSOC. Thus, there is compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and 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) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. In this regard, the Board finds that VCAA letters dated in February 2008, May 2008, August 2012, September 2012, as well as remands dated January 2010 and August 2012, satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (1) (2012); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims. The letters informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) (finding that "no error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the Veteran has been continuously represented by an experienced service representative and has submitted argument in support of his claims. These arguments have referenced the applicable laws and regulations. Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claims and is not prejudiced by a decision in this case. As such, a further remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (noting that remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and relevant VA medical records are in the file. All records identified by the Veteran as relating to the claims have been obtained, to the extent possible. The Board finds that the record contains sufficient evidence to make a decision on the claims. 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. 38 C.F.R. § 3.159(c) (4) (i) (2012). In this case, the Board notes that the Veteran was provided with multiple VA examinations during the course of this appeal. The VA examination reports reflect that the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate evaluations of the Veteran, rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record, and provided sufficient information to evaluate the Veteran's claim. Additionally, the Veteran has not stated nor is there evidence indicating that there has been a material change in the severity of his disabilities since he was last examined. See 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. See VAOPGCPREC 11-95 (April 7, 1995). The Board concludes that the examination reports of record are adequate for purposes of rendering a decision in the instant appeal. See 38 CF.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and his representative have not contended otherwise. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Increased rating claim Disability evaluations are determined by the application of a schedule of ratings, which is based on average industrial impairment. 38 U.S.C.A. § 1155. A proper rating of the Veteran's disability contemplates its history, 38 C.F.R. § 4.1, and must be considered from the point of view of a Veteran working or seeking work. 38 C.F.R. § 4.2. 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. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, as in this claim, the present level of disability is of primary concern. 38 C.F.R. §§ 4.1, 4.2 (2012); see also Francisco v. Brown, 7 Vet. App. 55 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), however, the Court held that "staged ratings" are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings, as is shown in the instant case. With any form of arthritis, painful motion is an important factor. 38 C.F.R. § 4.59 (2012). The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability, and to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Id., see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that the applicability of 38 C.F.R. § 4.59 is not limited to arthritis claims). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40 (2012). 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 may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Id. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. Id. When considering joints, manifestations of functional loss also include less or more movement than is normal, weakened movement, excess fatigability, incoordination, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight bearing. 38 C.F.R. § 4.45 (2012); see also DeLuca v. Brown, 8 Vet. App. 202, 207 (1995) (holding that 38 C.F.R. § 4.45 applies to joint conditions as well as muscle and nerve conditions). Assignment of a disability rating should take into account consideration of limitation of functional ability during flare-ups or when a joint is used repeatedly over a period of time. See DeLuca, 8 Vet. App. at 206; see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2012). Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (Diagnostic Code 5200 etc.). 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Musculoskeletal hip disabilities are addressed in the VA rating schedule under Diagnostic Codes 5250 to 5255. 38 C.F.R. § 4.71a, Diagnostic Codes 5250 to 5255. As reflected in the evidence discussed below, the Veteran does not have ankylosis or flail joint of either hip or impairment of the femur. As such, the diagnostic codes relevant to these disabilities are not for application. See 38 C.F.R. § 4.71a, Diagnostic Codes 5250, 5254, 5255. The Veteran's left hip injury has been evaluated as 10 percent disabling prior to October 11, 2012, under the criteria of Diagnostic Code 5251 for limitation of extension. Effective October 11, 2012, the RO evaluated the Veteran's thigh disability as 10 percent disabling under Diagnostic Code 5252 for limitation of flexion and 20 percent disabiling under Diagnostoc Code 5253 for limitation of abduction. In this regard, the Board notes that 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, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Furthermore, while service-connected disabilities and ratings in effect for 20 years or more are protected, and ratings in effect for shorter periods are also afforded some protections against reduction, the selection of diagnostic codes or applicable rating criteria are not protected and may be appropriately revised if the action does not result in the reduction of compensation payments. See 38 C.F.R. §§ 3.951, 3.957 (2010); See Butts, 5 Vet. App. 532; VAOPGCPREC 71-91 (Nov. 7, 1991). Here, the Board concludes that the RO's actions were not impressible in so far as the rater is permitted to reevaluate a service-connected disorder under a different diagnostic code or codes in light of the evidence of record. However, the Board disagrees that the Veteran's left hip disorder ceased to be manifested by a compensable degree of limitation of extension as of October 11, 2012. Therefore, the Board finds that the original 10 percent assigned for his left hip disorder should have remained under Diagnostic Code 5251 for limitation of extension both before and after October 11, 2012. The Board also agrees with the RO determination that a separate 20 percent, but no more, was warranted for limitation of abduction on and after October 11, 2012, but further finds that a separate 10 percent is warranted for flexion as well on and after that same date. In this regard, limitation of extension of the thigh to 5 degrees warrants a 10 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5251. Limitation of flexion of the thigh to 45 degrees, 30 degrees, 20 degrees, and 10 degrees warrants 10, 20, 30, and 40 percent disability ratings, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5252. Impairment of the thigh is addressed in Diagnostic Code 5253, which provides for 10 percent disability ratings for limitation of adduction where the claimant cannot cross legs or limitation of rotation where the claimant cannot toe-out more than 15 degrees; a 20 percent disability rating is warranted when there is limitation of abduction with motion lost beyond 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5253. Reviewing the relevant evidence of record, in February 2006, range of motion of the left hip was to at least 80 degrees of flexion, 3-5 degrees of extension, 12-15 degrees of abduction, 20 degrees of adduction, 5 degrees of internal rotation, and 15-20 degrees of external rotation. Under Diagnostic Codes 5251, 5252, and 5253, these findings would warrant no more than a 10 percent evaluation for extension limited to 5 degrees. Upon VA examination in July 2007, the Veteran's left hip had flexion to 90 degrees, extension to 5 degrees, adduction to 25 degrees, abduction to 45 degrees, external rotation to 20 degrees, and internal rotation to 10 degrees. He reported pain and stiffness in that hip. X-rays showed mild to moderate osteoarthritic changes of the left hip. Under Diagnostic Codes 5251, 5252, and 5253, these findings would warrant no more than a 10 percent evaluation for extension limited to 5 degrees. Physical therapy records dated October 2007 show hip flexion to 75 degrees, internal rotation and internal rotation of 0, and extension to neutral. Under Codes 5251, 5252, and 5253, these findings would warrant no more than a noncompensable evaluation. The Veteran received another VA examination in December 2008. At that time, he reported pain and stiffness in the left hip. Left hip flexion was to 80 degrees, extension was to 5 degrees, adduction was to 20 degrees, abduction was to 30 degrees, external rotation was to 20 degrees, and internal rotation was to 10 degrees. He was specifically noted to have no additional limitation on repetition, was able to cross his legs, and could toe out greater than 15 degrees. He was noted to have mild to moderate changes of the left hip. Under Codes 5251, 5252, and 5253, these findings would warrant no more than a 10 percent evaluation for extension limited to 5 degrees. The Veteran had another VA examination on October 13, 2011. At that time, flexion of the left hip was to 90 degrees, with pain on motion at 90 degrees. Testing was unclear as to whether abduction was lost beyond 10 degrees. The Veteran could however cross his legs, and could toe out to more than 15 degrees. Repetitive testing appeared to show some additional loss of range of motion. An addendum to this report was made in November 2011. At that time, the examiner noted that he had omitted a section from the previous examination report. Left hip flexion was noted to be 90 degrees, with extension to 5 degrees, with abduction not lost beyond 10 degrees. Post test flexion resulted in identical results. The Veteran was able to cross his legs and could toe out to more than 15 degrees. The examiner appeared to indicate that the Veteran had additional limitation of motion on repetitive testing. He did note that the Veteran had increased fatigability, weakened movement, and more pain on movement after additional testing. No ankylosis was noted. An October 11, 2012 VA examination report noted, on repetitive testing, flexion limited to 35 or 40 degrees, abduction limited to 5 or 10 degrees, adduction limited to 5 or 10 degrees, internal rotation to 0 degrees, and external rotation to 10 degrees. Post test abduction was lost beyond 10 degrees. Post test adduction was such that the Veteran could not cross his legs, and post test rotation was limited such that the Veteran could not toe out more than 15 degrees. There was no ankylosis of the joint. The Veteran did have an antalgic gait, and appeared restless when sitting. A February 2013 VA examination report conducted in regard to the issue of employability noted that the Veteran's left hip extension was from 0 to 15 degrees, with evidence of painful motion at 15 degrees, limiting further extension. The Veteran was able to perform repetitive use testing using 3 repetitions without additional loss of range of motion. At that time, the examiner noted that this condition would not prevent sedentary employment. The Board finds this examination information to be of limited value as it does not appear to have measured all applicable planes of movement. In summary, even taking into account additional functional loss due to pain and other symptoms, these findings support no more than a 10 percent rating for limitation of extension under Diagnostic Code 5251 for the entire period under consideration, a 10 percent rating for limitation of flexion under Diagnostic Code 5252 on and after October 11, 2012, and a 20 percent rating under Diagnostic Code 5253 for limitation of abduction on and after October 11, 2012. Thus, the Board concludes that a separate 10 percent rating is warranted on and after October 11, 2012, beyond the separate 10 and 20 percent evaluations already assigned. In reaching its conclusions, the Board has considered the Veteran's statements pertaining to this disability. However, the more probative evidence consists of that prepared by neutral skilled professionals, and such evidence demonstrates that the currently assigned evaluations for this disability are appropriate. Entitlement to TDIU The Veteran alleges that limitations associated with his service-connected disabilities preclude his gainful employment. Based upon the evidence of record, the Veteran worked at a pet food company for 38 years, and was terminated in October 2012. Total disability ratings for compensation based on individual unemployability may be assigned when the combined scheduler rating for the service-connected disabilities is less than 100 percent and when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, this disability is ratable at 60 percent or more, or if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more. The Veteran's employment history, his educational and vocational attainment, as well as his particular physical disabilities are to be considered in making a determination on unemployability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The Veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one that exists because of an approximate balance of positive and negative evidence which satisfactorily proves or disproves the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. 38 C.F.R. § 3.102. See also 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The Veteran's service-connected disabilities consist of PTSD, at a 50 percent evaluation, degenerative disc disease of the lumbar spine at a 20 percent evaluation; left hip limitation of abduction, at a 20 percent evaluation; tinnitus, at a 10 percent evaluation; left hip limitation of flexion, at a 10 percent evaluation; left hip limitation of extension, at a 10 percent evaluation, diabetes at a 10 percent evaluation, and hearing loss at a noncompensable evaluation. These ratings combine to an 80 percent evaluation. As such the Board finds that the Veteran meets the percentage standard set forth in 38 C.F.R. § 4.16(a). Thus, the question is whether the Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation. Based on the evidence of record, the Board concludes that the evidence is in equipoise, and thereby supports the Veteran's claim for a TDIU. While the employability opinions contained in the Veteran's most recent February 2013 examinations indicate that no one individual service connected disability of the Veteran's causes his unemployability, when considering the evidence as a whole, considering that the Veteran has both significant psychiatric and physical service connected disabilities, his recent diagnosis of diabetes, and the Veteran's statements as to his ability to work, and considering his prior employment experience, the Board finds the evidence is at least in equipoise as to the question of whether the Veteran's service connected disabilities render him unemployable. As such, the Board finds that the Veteran should be granted the benefit of the doubt, and entitlement to TDIU is warranted. ORDER Entitlement to an evaluation in excess of 10 percent for the left hip disability prior to October 11, 2012, is denied. Entitlement to separate evaluations of 10 percent for limitation of flexion, 10 percent for limitation of extension, and 20 percent for limitation of abduction in the left hip from, from October 11, 2012, is granted, subject to the laws and regulations governing the award of monetary benefits. Entitlement to a TDIU is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs