Citation Nr: 1335831 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 07-29 977 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUE Entitlement to an increased evaluation for the service-connected degenerative joint disease of the left hip, currently evaluated as 10 percent disabling. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shana Z. Siesser, Counsel INTRODUCTION The Veteran served on active duty from October 1969 to September 1971 and from March 1973 to March 1991. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from September 2006 decision of the RO. In September 2009, the Veteran testified at a videoconference hearing with another Veterans Law Judge who has since retired. A transcript of that hearing has been associated with the claims file. The Veteran did not request that another hearing be conducted in this case. A review of the Veteran's Virtual VA electronic claims file reveals no additional relevant records. During the November 2009 hearing, the Veteran raised the issue of service connection for a low back disorder, to include as secondary to the service-connected left hip disorder. The matter has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction and refers the issue to the AOJ for appropriate action. FINDING OF FACT The service-connected left hip disability picture is shown to be manifested by degenerative changes and painful motion, but is not productive of flexion of the thigh limited to 30 degrees, extension limited to 5 degrees, ankylosis, motion lost beyond 10 degrees on thigh abduction, flail joint or significant malunion or deformity of the femur itself. CONCLUSION OF LAW The criteria for the assignment of a disability rating in excess of 10 percent for the service-connected left hip disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a including Diagnostic Codes 5250-5255 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and, (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, the RO provided the Veteran with notification letters in February 2006, March 2006, May 2006, December 2008, March 2010, and September 2011. Therefore, the timing requirement of the notice as set forth in Pelegrini has been met and to decide the appeal would not be prejudicial to the claimant. Moreover, the content of the letters satisfied the notice requirements. In this regard, the letter informed the Veteran of the information and evidence needed to substantiate his claim and notified him of the division of responsibilities in obtaining such evidence. The letters also explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess, 19 Vet. App. at 490-491. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available post-service medical records are in the claims file and were reviewed by both the RO and the Board in connection with the claim. The Veteran has not identified any other outstanding records that are pertinent to the issue being decided herein. 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, as defined by law. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the Veteran was afforded VA examinations in April 2006, August 2010, and May 2011. There has been no allegation that the examinations were inadequate. Moreover, the Board finds that the VA medical examinations are adequate, as they are predicated on a full reading of the available records as well as a physical examination of the Veteran. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). Additionally, as noted, the Veteran was provided the opportunity to testify at a hearing before a Veterans Law Judge in November 2009. The Veterans Law Judge clearly set forth the issue to be discussed, and the hearing focused on the elements necessary to substantiate the claim. Questions were asked regarding the Veteran's current symptoms. The Veterans Law Judge also inquired as to whether the Veteran was receiving any current treatment in order to determine whether there was any outstanding evidence. For these reasons, the Board finds that VA fully complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). VA has further assisted the Veteran and his representative throughout the course of this appeal by providing them with a Statement of the Case (SOC) and numerous Supplemental Statements of the Case (SSOC), which informed them of the laws and regulations relevant to the Veteran's claim. The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the particular claim on appeal. He has been given ample opportunity to present evidence and argument in support of his claim. As noted, he has not requested that another hearing be conducted. For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Merits of the Claim The Veteran contends that he is entitled to a rating in excess of 10 percent for the service-connected left hip disability. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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 current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Words such as "moderate," "moderately severe" and "severe" are not defined in the Rating 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 (2012). Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2012). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2012). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function, however, will be expected in all instances. 38 C.F.R. § 4.21 (2012). The evidence to be considered in the appeal of an initial disability rating is not limited to that reflecting the current severity of the disorder. In cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the initial evaluation period. Fenderson v. West, 12 Vet. App. 119 (1999). Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant on motion. Disability of the musculoskeletal system is the inability to perform normal working movement with normal excursion, strength, speed, coordination, and endurance, and that weakness is as important as limitation of motion, and that a part that becomes disabled on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, through atrophy, for example. 38 C.F.R. § 4.40. The provisions of 38 C.F.R. §§ 4.45 and 4.59 also contemplate inquiry into whether there is limitation of motion, weakness, excess fatigability, incoordination, and impaired ability to execute skilled movements smoothly, and pain on movement, swelling, deformity, or atrophy of disuse. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing are also related considerations. The Court has held that diagnostic codes predicated on limitation of motion require consideration of a higher rating based on functional loss due to pain on use or due to flare-ups. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The service-connected left hip disability has been evaluated as 10 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5010-5255 for degenerative joint disease of the left hip. The Veteran is also in receipt of two noncompensable ratings based on limitation of extension of the left thigh pursuant to Diagnostic Code 5251 and limitation of abduction and internal rotation of the left thigh, pursuant to Diagnostic Code 5253. Under Diagnostic Code 5255, a rating of 10 percent is warranted for malunion of the femur with slight knee or hip disability. A 20 percent disability rating is assigned for malunion of the femur with moderate knee or hip disability. A 30 percent rating is warranted for malunion of the femur with marked knee or hip disability. A 60 percent rating is assigned for fracture of the femur surgical neck with false joint, and for nonunion of the femur with loose motion, weight bearing preserved with aid of brace. Finally, an 80 percent rating is warranted for fracture of femur shaft or anatomical neck with nonunion and loose motion. 38 C.F.R. § 4.71a. Although the Board acknowledges that the RO assigned the Veteran's disability rating under Diagnostic Code 5255, at no time has the evidence of record demonstrated that the Veteran suffers from malunion or other significant bony pathology of the femur. Essentially, the currently assigned 10 percent disability rating reflects the presence of arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Under Diagnostic Code 5003, degenerative arthritis established by x-ray findings is rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. 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 and 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. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Diagnostic Code 5251 provides a maximum rating of 10 percent for limitation of extension of the thigh to 5 degrees. Diagnostic Code 5252 provides for a 10 percent rating for limitation of flexion of the thigh to 45 degrees; a 20 percent rating where flexion is limited to 30 degrees; a 30 percent rating where flexion is limited to 20 degrees; and a 40 percent rating where flexion is limited to 10 degrees. Diagnostic Code 5253 provides a 10 percent evaluation when there is limitation of abduction of the thigh such that the legs cannot be crossed or there is limitation of rotation such that it is not possible to toe out more than 15 degrees. A 20 percent rating requires limitation of abduction with motion lost beyond 10 degrees. According to VA standards, full hip range of motion is defined as 0 to 125 degrees hip flexion and 0 to 45 degrees hip abduction. See 38 C.F.R. § 4.71, Plate II. The Veteran's treatment records show that he underwent surgery on his lumbar spine in August 2005. An examination of his left hip at that time showed no edema, atrophy or bony deformation. Palpation revealed no tenderness or masses. The range of motion of the hip produced some back pain; however, no exact of range of motion was provided. The Veteran underwent a VA examination in April 2006. The Veteran reported that he had had an L5-S1 discectomy in May 2004 and August 2005 and had problems with his left leg since that time. A December 2005 electromyogram showed an acute left L5 radiculopathy. The Veteran reported having very slight hip pain if he twisted. He denied having flare ups, using medication, or needing assistive devices for his hip. An examination showed no tenderness of the hip. He had 5/5 motor strength, and his range of motion was that of flexion to 110 degrees, abduction to 40 degrees, adduction to 25 degrees, external rotation to 60 degrees, and internal rotation to 30 degrees with no pain or diminution with repetitive testing. The examiner also found no evidence of De Luca criteria. The examiner opined that the Veteran had left hip degenerative joint disease. An x-ray study noted an unremarkable radiograph of the left hip. A May 2006 treatment record showed that the Veteran had normal bilateral active and passive hip range of motion and 5/5 motor strength of the hips. In July 2006, the Veteran presented with mild pain with motion of the left hip. In August 2006, he was evaluated for a possible avascular necrosis of the left hip. An examination showed that the left hip was without discomfort to hip flexion, internal rotation, or external rotation. He had an equal range of motion on the contralateral side, and there was good strength with abduction and hip flexion. The Veteran testified at a hearing in November 2009 that he was having increased pain in his left hip as well as pain in the left leg. He further testified that, although he sought treatment for his hip, he was told that the disability was in his back and that he had problems with left leg giving way and pain. The Veteran underwent a VA examination in August 2010. The examiner noted that a June 2009 x-ray study of the left hip showed minimal sclerosis of the acetabular roof with posterior L5-S1 fusion and probable tendinopathy of the gluteus medius. An examination of the left hip revealed no tenderness to palpation, 5/5 motor strength in all planes, extension to 15 degrees, flexion to 70 degrees with pan, adduction to 30 degrees with pain, abduction to 25 degrees with pain, external rotation to 55 degrees with diminishment to 30 degrees with no substantial pain, and internal rotation to 30 degrees. The examiner further stated that the Veteran had no additional limitations due to pain, fatigue, weakness or lack of endurance following repetitive use. An x-ray study showed no evidence of avascular necrosis of the hip. Another VA examination was conducted in May 2011 when the Veteran reported having intermittent left hip pain, rated as 10 out of 10 with increased activity and aggravated by long periods of walking and standing. The Veteran's symptoms included those of pain, weakness and decreased speed on joint motion. He denied having deformity, giving way, instability, stiffness, episodes of dislocation or subluxation, locking, effusions, inflammation, or flare-ups. Upon examination, the examiner found the Veteran's hip was not tender; there was no crepitus. His range of motion included that of flexion to 70 degrees, extension to 15 degrees, and abduction to 30 degrees with objective evidence of pain on active motion. He was able to cross his left leg over his right leg and was able to toe-out more than 15 degrees. No ankylosis was found. Based on the forgoing, the Board finds that the service-connected left hip disability does not warrant a rating higher than 10 percent in this case. As stated, the Veteran is currently in receipt of a 10 percent rating under Diagnostic Code 5255 based on having malunion of the femur with slight hip disability. To the extent that malunion is not actually shown, this rating is effectively based on the Veteran having degenerative joint disease or arthritis of the left hip with resulting pain, as addressed by Diagnostic Code 5003. However, without actual malunion or nonunion, the Veteran is not entitled to a rating in excess of 10 percent under Diagnostic Code 5255. The Veteran has not been assigned a compensable rating under Diagnostic Codes 5251 or 5253. The record in this regard does not show limitation of extension of the thigh to 5 degrees or limitation of flexion of the thigh to 45 degrees or less. Moreover, there is no showing of any limitation of abduction, adduction or rotation. Therefore, compensable ratings are not warranted under Diagnostic Codes 5251, 5252 or 5253. Diagnostic Code 5250 requires ankylosis of the hip. Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Colayong v. West, 12 Vet App 524 (1999) (citing DORLAND'S ILLUSTRATED MEDICAL DICTIONALRY (28TH Ed. 1994) at 86). Diagnostic Code 5254 requires flail joint of the hip. As neither ankylosis nor flail joint of the hip is demonstrated, Diagnostic Codes 5250 and 5254 are not for application in this matter. 38 C.F.R. § 4.71. Thus, an evaluation in excess of 10 percent under Diagnostic Code 5255 for the Veteran's left hip disability is not warranted. The Board has also considered DeLuca, in reaching its conclusion. DeLuca, 8 Vet. App. 202. The extent of any additional functional loss due to pain, however, is adequately contemplated by the currently assigned 10 percent rating. The objective evidence does not demonstrate, nor does the Veteran identify, any functional limitation which would warrant a higher rating under any applicable rating criteria. As such, the provisions of 38 C.F.R. §§ 4.40 and 4.45 have been considered, but they do not provide a basis for an increased rating under these circumstances. Accordingly, on this record, the Board finds that the service-connected left hip degenerative joint disease does not meet the criteria for a rating in excess of 10 percent at this time. There are no identifiable periods of time during which this condition has been shown to be disabling to a greater degree so as to warrant the assignment of higher "staged ratings." Therefore, the claim for increase must be denied. Extraschedular consideration The above determination is based on application of provisions of the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2012). However, the regulations also provide for exceptional cases involving compensation. Pursuant to § 3.321(b)(1), the Under Secretary for Benefits or the Director of the Compensation and Pension Service is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). If the evidence raises the question of an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of a Veteran's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule. The assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO must determine whether the claimant's exceptional disability picture involves related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). Here, because the schedular rating of 10 percent for the service-connected left hip disability is fully addressed, referral to the Under Secretary for Benefits or the Director of Compensation and Pension Service for consideration of an extraschedular evaluation is not warranted. Thus, the service-connected disability picture does not produce impairment that is not contemplated by the schedular rating criteria or otherwise render impractical the application of the regular schedular standards. See Thun, 22 Vet. App. at 111. Accordingly, the requirements for referral of this case for extraschedular consideration under 38 C.F.R. § 3.321(b)(1) have not met. Id.; see also Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996). ORDER An increased rating in excess of 10 percent for the service-connected left hip disability is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs