Citation Nr: 1335585 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 09-49 022 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent for osteoarthritis, status post left total hip replacement. 2. Entitlement to an initial disability rating in excess of 10 percent for a right ankle disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran served on active duty from March 1987 to September 1990, from November 2001 to April 2002, and from September 2004 to May 2005, and from July 2005 to February 2006. This case is before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which established service connection for osteoarthritis, status post left total hip replacement, and assigned a 30 percent disability rating. During the pendency of this appeal, the Veteran initiated a separate claim of entitlement to service connection for a right ankle disorder. While the claims folder was pending at the Board, the Veteran submitted a timely substantive appeal on this issue. In February 2012, a Travel Board hearing was held before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims file. In February 2013, the case was remanded for further development. In an April 2013 rating decision, the RO granted the Veteran's service connection claim for right ankle disability, and assigned a 10 percent rating effective January 26, 2011 (the date of the claim). In April 2013 correspondence, the Veteran expressed his disagreement with the 10 percent rating assigned. A review of the Virtual VA paperless claims processing system reveals additional VA treatment records dated from July 7, 2011 to April 1, 2013; and the September 2013 Appellant's Brief. The issue of entitlement to a rating in excess of 10 percent for a right ankle disability is addressed in the REMAND portion of the decision below and is REMANDED once again to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if any action on his part is required. FINDING OF FACT Throughout the entire appeal period, the Veteran's left hip disability is manifested by minimal residuals following a total hip replacement; but it is not characterized by moderately severe residuals of weakness, pain or limitation of motion. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 30 percent for osteoarthritis, status post left total hip replacement have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, DC 5054 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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) (2013). Proper notice from VA must inform the claimant of any information and medical or lay 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran's rating claim arises from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA as to these issues. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file, to include the Veteran's electronic file, contains the Veteran's available service treatment records, post-service reports of VA, and private treatment and examination. Moreover, the Veteran's statements, to include testimony taken at the February 2012 Board hearing, in support of the claim are of record. The Board has carefully reviewed such statements and concludes that there is no available outstanding evidence pertinent to the claim decided below that must be obtained. Accordingly, the Board finds that all reasonable efforts have been undertaken by VA with respect to the instant appeal, and no further development is required under these circumstances. Additionally, the Veteran was afforded VA examinations in January 2007, and April 2013 to evaluate the severity of his left hip disability. The Board finds that the VA examinations are adequate because, as shown below, they are based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because it describes the right ankle disability in detail sufficient to allow the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). Furthermore, the Veteran has not asserted, and the evidence does not show, that his symptoms have materially worsened since the April 2013 evaluation. See 38 C.F.R. §§ 3.326, 3.327 (reexaminations will be requested whenever VA determines there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect.); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The Board accordingly finds no reason to remand for further examination regarding the issue decided herein. As noted, the Veteran was provided with an opportunity to set forth his contentions during a hearing before the undersigned. The United States Court of Appeals for Veterans Claims (Court) has held that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board and that a Veterans Law Judge has a duty to explain fully the issues and a duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). The record reflects that during the hearing the undersigned set forth the issue to be discussed at the hearing, focused on the elements necessary to substantiate the claim, and sought to identify any further development that was required to help substantiate the claim. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. The Board also finds that there was substantial compliance with the February 2013 remand directives. A remand by the Board confers upon the claimant, as a matter of law, the right to substantial compliance with a remand order. See Stegall v. West, 11 Vet. App. 268 (1998); see D'Aries v. Peake, 22 Vet. App. 97, 104-05 (2008) (finding substantial compliance where an opinion was provided by a neurologist as opposed to the internal medicine specialist requested by the Board); Dyment v. West, 13 Vet. App. 141 (1999). In this case, the Board directed the AMC/RO to obtain and associate all outstanding VA treatment records, and then afford the Veteran a VA examination to determine the current severity of his left hip disability. A review of the claims file reveals all updated records have been associated with the claims file; and as noted, the Veteran was afforded a VA examination in April 2013. As stated above, the Board finds that the VA examination is adequate. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Analysis Initially, the Board notes all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal, has been reviewed. Although there is an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran contends that his service-connected left hip replacement is more disabling than reflected in the current disability rating. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which assigns ratings based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In Fenderson v. West, 12 Vet App 119, 125-26 (1999), however, the U.S. Court of Appeals for Veterans Claims (Court) distinguished appeals involving a veteran's disagreement with the initial rating assigned at the time a disability is service-connected. Accordingly, where the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection, and consideration of the appropriateness of "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts found) is required. See id. at 126-27. The Board finds that the Veteran's current 30 percent assigned, represents the greatest level of severity throughout the entire course of the appeal. Consequently, "staged" ratings are not for consideration. In an August 2008 rating action, service connection was granted for status post total left hip replacement. A 30 percent disability rating was assigned under DC 5054. The Veteran has disagreed with the evaluation assigned. Under this diagnostic code, replacement of the hip with prosthesis warrants a 100 percent rating for a one-year period following implantation of the prosthesis. Thereafter a minimum rating of 30 percent is warranted. A 50 percent rating is warranted for moderately severe residuals of weakness, pain, or limitation of motion. A 70 percent rating is warranted for markedly severe residual weakness, pain, or limitation of motion following implantation of the prosthesis. A 90 percent rating is warranted following implantation with painful motion or weakness such as to require the use of crutches. DC 5054. Normal range of motion for the hip is 0 degrees of extension to 125 degrees of flexion and 0 to 45 degrees of abduction. 38 C.F.R. § 4.71, Plate II. The Board observes that the words "moderate," "moderately severe," and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. Evidence relevant to the severity of the Veteran's service-connected left hip disability includes, in addition to his assertions, private outpatient treatment notes, VA clinical records, and VA examination reports. During a January 2007 VA examination, the Veteran reported pain, stiffness, fatigability, and lack of endurance. There was no noted weakness, swelling, and redness. He reported flare-ups occurring on average of one time a week. The Veteran reported the flare-ups cause functional impairment in that he experiences difficulty walking, difficulty putting his clothes on, and difficulty getting out of the vehicle. He did not have a need for assistive devices. The Veteran has not had any episodes of dislocation or recurrent subluxation. The examiner noted that the Veteran's joint problem moderately affects him with walking, driving, and recreational activities. On examination the Veteran had normal gait and posture; the left hip was not ankylosed; there was pain with motion, fatigue, and a lack of endurance; there was no noted weakness, incoordination, abnormal weight bearing, effusion, redness, or heat. Range of motion testing of the left hip revealed extension was to 30 degrees, flexion was to 100 degrees, abduction was to 40 degrees, adduction was to 20 degrees, internal rotation was to 30 degrees; and external was to 50 degrees. Range of motion testing after repetitive testing revealed extension was to 25 degrees; flexion was to 95 degrees; abduction was to 35 degrees; adduction was to 15 degrees; internal rotation was to 25 degrees; and external rotation was to 45 degrees. There was no pain with extension, abduction, adduction, or internal rotation; pain was noted at 90 degrees of flexion, and at 45 degrees of external rotation. The examiner noted that functional limitations with standing and walking was that the Veteran was unable to stand too long in one place, and he could not walk too long a distance. The diagnosis was osteoarthritis status post arthroplasty. In his April 2009 notice of disagreement (NOD), the Veteran contends that a 50 percent rating is warranted because he experiences moderately severe residuals of weakness, pain, or limitation of motion. He attached a copy of a February 2009 letter from his personal physician that documented that the Veteran has limited range of motion with abduction, adduction, extension and flexion. Private treatment records include a February 2009 record that notes the Veteran's left hip pain and decreased range of motion, however no range of motion testing is documented. A December 2009 private treatment record notes left hip flexion "about 75 percent of full range"; and pain with extension, abduction, external rotation, and internal rotation passive ranges of motion. The examiner noted that the Veteran has left hip active flexor weakness with resistance and pain. During the February 2012 Travel Board hearing, the Veteran testified that he experienced increased pain, stiffness; trouble with sitting, stooping, or standing for long periods of time; flare-ups; weakness; trouble sleeping; and affects on activities of daily living, all due to his left hip disability. An October 2012 private treatment record notes that the Veteran has a one-half limb length discrepancy. On April 2013 VA examination, the Veteran reported that his service-connected left hip disability was stable. He stated that during flare-ups he experiences reduced range of motion but otherwise is functioning well. Range of motion testing revealed flexion to 125 degrees or greater with no objective evidence of painful motion; extension was to 5 degrees or greater with no objective evidence of painful motion; abduction was not lost beyond 10 degrees; adduction was not limited such that the Veteran could not cross his legs, and rotation was not limited in that the Veteran could not toe-out more than 15 degrees. The Veteran was able to perform repetitive-use testing with 3 repetitions. The examiner noted that there was no additional limitation in range of motion of the left hip. The examiner noted that the left hip experienced functional impairment as there was less movement than normal and there was pain on movement. Range of motion testing was reported again (page 6 of the examination report); flexion was 0 to 100 degrees; abduction was 0 to 30 degrees, with pain at 30 degrees; extension was 0 to 30 degrees; external rotation was 0 to 15 degrees active; the examiner noted that the Veteran takes the lower leg and brings it up over the opposite leg when putting on shoes and socks (notably exceeding 0 to 60 degrees normal range). Muscle strength testing revealed normal left hip flexion, abduction, and extension. There was no ankylosis present. There was no noted malunion, nonunion of the femur, flail hip joint or leg length discrepancy. The examiner noted that the Veteran utilizes shoe inserts to even out his gait. He indicated that the Veteran's left hip disability impacted his ability to work in that the Veteran should avoid prolonged walking, standing, and no running. A review of the remaining evidence of record shows that no treatment records pertaining to the Veteran's left hip disability have been associated with the claims folder and electronic Virtual VA folder since the April 2013 VA examination. As a result there are no records that indicate a worsening in range of motion or incapacitating episodes to warrant a higher evaluation for the left hip. Rather, if anything, this supports the conclusion that the Veteran's hip condition has remained stable. Applying the regulations to the facts in the case, the Board finds that the criteria for a disability rating in excess of 30 percent are not met. Both the medical evidence and the Veteran's statements reflect that the predominant symptom appears to be hip stiffness and discomfort with certain activities, such as prolonged sitting or standing. The Board notes, however, for purposes of evaluating the hip disorder the subjective descriptions must be reviewed in light of the objective findings. The evidence of record does not show regular ongoing treatment for the left hip. In fact, the objective clinical findings from the private 2009 treatment records and the 2007 and 2013 VA examination reports are negative for any medical evidence of residual impairment of the left hip suggestive of a higher disability evaluation. While the January 2007 VA examination documented some objective evidence of painful motion, fatigue, and lack of endurance; range of motion testing was still within normal limits even with the additional 5 degrees loss with repetitive testing. The February and December 2009 treatment reports document the Veteran's decreased range of motion; however full range of motion testing was not performed. In any event, the Board finds the treatment reports do not document symptoms reflective of moderately severe symptomatology. Moreover, the most recent April 2013 VA examination report notes the Veteran's report that his left hip is stable, and again range of motion testing was within normal limits with minimal pain noted. Here the Board is faced with evidence of minimal objective clinical findings associated with status post left total hip replacement and a diagnostic code that requires moderately severe symptomatology in order to assign a higher evaluation under DC 5054. The Board has also considered DeLuca v. Brown, 8 Vet. App. 202 (1995), in reaching its conclusion in this case. The record does not include evidence that is both credible and persuasive documenting any additional functional limitation which would warrant higher ratings under the applicable rating criteria. Despite the Veteran's left hip disability, which primarily cause discomfort with prolonged sitting, he has remained fully ambulatory and functional. Moreover no examiner has established that pain, weakness, or limitation of motion result in functional loss that would equate to a moderately severe level of disability. As such, the provisions of 38 C.F.R. §§ 4.40, 4.45 have been considered, but they do not provide a basis for the assignment of higher ratings. Although the Board is required to consider the effect of the Veteran's pain when making a rating determination, and has done so in this case, the Rating Schedule does not require a separate rating for pain. Rather, it provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. Spurgeon v. Brown, 10 Vet. App. 194 (1997). The presently assigned 30 percent disability ratings adequately compensate the Veteran for any painful motion and functional loss. In an effort to determine whether a higher evaluation may be assigned to the left hip disability, the Board also considered rating criteria based on limitation of motion and hip joint disabilities found in DCs 5250 through 5255, also under 38 C.F.R. § 4.71a. The medical evidence shows that the Veteran's hip replacement residuals do not indicate evidence of actual ankylosis of the hip, flail hip joint or fracture of the shaft or anatomical neck of the femur as contemplated by DCs 5250, 5254 and 5255. Id. Such is simply not demonstrated. Under DCs 5251 and 5253, the maximum ratings for limitation of motion or impairment of the thigh are 10 percent and 20 percent respectively. Thus, those codes would not provide a basis for a higher rating. Id. Also, even considering the complaints as reported by the Veteran, given the clinical evidence of record, the Board finds that there is simply no indication that the Veteran has experienced pain so disabling as to result in flexion limited to 10 degrees or less, so as to warrant a 40 percent disability rating under DC 5252. Id. There is likewise no evidence that any loss of extension, flexion, or abduction could combine to support a higher (40 percent) rating. Therefore, the Board concludes that the overall level of disability under DC 5054 for limitation of motion, weakness, and pain does not approximate moderately severe and is, therefore, best represented by the 30 percent minimum rating. Thus, the criteria for the assignment of disability ratings in excess of 30 percent for status post total right hip replacement and status post total left hip replacement are not met. Extraschedular considerations The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2013). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-116. When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluation is not inadequate. The Board recognizes that an evaluation in excess of the 30 percent rating may be assigned for certain manifestations of the service-connected left hip disability. The Board notes, however, as explained in detail above, the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorder. Thus, the Veteran's left hip disability does not present an exceptional or unusual disability picture. Consequently, the Board need not address whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. See Thun, 22 Vet. App. at 115-16. For these reasons, the rating schedule is adequate to evaluate the disability, and referral for extraschedular consideration is not in order. Finally, as the Veteran is currently employed (see October 2011 VA examination for right ankle disability; additionally, while the April 2013 examination notes that the condition impacts the Veteran's ability to work in that he should avoid prolonged walking, standing, and no running, there is no indication that the Veteran is unable to work due to his left hip disability), entitlement to a total disability rating due to individual employability resulting from service-connected disability has not been raised by the record. ORDER An initial disability rating in excess of 30 percent for osteoarthritis, status post left total hip replacement is denied. REMAND As previously noted, in a rating decision dated April 2013, the RO granted service connection for a right ankle disability. At that time, the RO awarded an initial 10 percent rating for right ankle disability effective to the date of claim. In April 2013 correspondence, received by the Board in May 2013, the Veteran expressed his disagreement with the 10 percent rating assigned for his service-connected right ankle disability. In short, the Veteran has submitted a timely NOD with respect to the initial rating assigned which initiates the appeal process. See Manlincon v. West, 12 Vet. App. 238 (1999). As the RO has not furnished the Veteran a statement of the case (SOC) on this issue, the Board is required to remand, rather than refer, this issue. Id. For procedural purposes, this claim has been listed as an issue on the title page. Accordingly, the case is REMANDED for the following action: Provide the Veteran an SOC with regard to the issue of entitlement to an initial rating greater than 10 percent for service-connected right ankle disability. The Veteran should be informed of his appellate rights and of the actions necessary to perfect an appeal on this issue. Thereafter, the issue is to be returned to the Board only if an adequate and timely substantive appeal is filed. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs