Citation Nr: 1336429 Decision Date: 11/08/13 Archive Date: 11/22/13 DOCKET NO. 09-25 688 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial rating for status post, total left hip replacement in excess of 30 percent. 2. Entitlement to an initial rating for osteoarthritis of the right hip in excess of 10 percent. 3. Entitlement to an initial rating for osteoarthritis of the right hip in excess of 20 percent. ATTORNEY FOR THE BOARD W. R. Stephens, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1985 to October 2006 in the United States Air Force. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision. The Veteran attended a Board hearing in June of 2013 at the Atlanta, Georgia RO. As will be discussed in greater detail below, the Board has found it appropriate to grant a 20 percent evaluation for the Veteran's service-connected osteoarthritis of the right hip, while the matter of whether a rating in excess of 20 is warranted is being remanded for further development. Therefore, the issue of entitlement to an initial rating for osteoarthritis of the right hip in excess of 20 percent is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The status of the Veteran's left hip, post replacement surgery does not show moderately or markedly severe residuals of weakness, pain or limitation of motion, or painful motion or weakness such as to require the use of crutches. 2. The Veteran's osteoarthritis of the right hip has been manifested by limited and painful motion, tenderness, and significant functional loss. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for the Veteran's status post, total left hip replacement have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Code 5054, 5250, 5252 (2013). 2. The criteria for a disability rating of 20 percent for osteoarthritis of the left hip are met or nearly approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010, 5250, 5252, 5253 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duty to Notify and Assist 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 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). VA should notify the Veteran of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; and (3) the evidence, if any, to be provided by the claimant. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (codified at 38 C.F.R. Part 3). The Veteran in this case is challenging the initial evaluation assigned following the grant of service connection for his sinusitis disability. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. See also VAOPGCPREC 8- 2003 (December 22, 2003). Thus, because service connection has already been granted, VA's VCAA notice obligations with respect to the issue of entitlement to a higher initial evaluation for sinusitis are fully satisfied, and any defect in the notice is not prejudicial. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). In any event, the Board notes that the RO provided the Veteran with adequate notice under the VCAA in a June 2006 letter. There is no indication that any additional action is needed to comply with the duty to assist the Veteran. The RO has obtained copies of the service treatment records and outpatient treatment records, and has arranged for VA examinations in connection with the claims decided on appeal, reports of which are of record and are adequate for rating purposes. The Veteran received VA examinations in August 2006 and December 2009. The Board finds these examination to be adequate for the purpose of allowing the Board to render an informed decision on the left hip claim, however, the Board does note the concerns expressed by the Veteran at his hearing with respect to the exams. These concerns will be addressed further in the applicable portion of the decision. Given these facts, it appears that all available records have been obtained. There is no further assistance that would be reasonably likely to assist the Veteran in substantiating the claims. 38 U.S.C.A. § 5103A(a)(2). II. Applicable Laws and Regulations Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The Schedule is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. When two evaluations are potentially applicable, VA will assign the higher evaluation when the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. VA will resolve reasonable doubt as to the degree of disability in favor of the Veteran. 38 C.F.R. § 4.1. If the evidence for and against a claim is in equipoise, the claim will be granted. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). As a result, a complete medical history of the Veteran is required for a ratings evaluation. This is in order to protect claimants against adverse decisions based on a single, incomplete, or inaccurate report and to enable VA to make a more precise evaluation. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In addition, VA has a duty to acknowledge and consider all regulations which are potentially applicable, and to explain the reasons and bases for its conclusions. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45 (2011), pertaining to functional impairment. If feasible, these determinations are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. Deluca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2011). 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. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a 10 percent evaluation is assignable 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. 38 C.F.R. § 4.71a, Diagnostic Code 5003. In this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). He is also competent to report symptoms of hip pain. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran is competent to describe his symptoms and their effects on employment or daily activities. His statements have been consistent with the medical evidence of record, and are probative for resolving the matters on appeal. 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 importance. Hart v. Nicholson, 21 Vet. App. 505, 509 (2007). Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Id. A. Increased Rating for the Left Hip The Veteran is seeking an increased rating for his service-connected left hip replacement, currently rated at 30 percent. The Veteran's left hip is rated under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5054. Under this diagnostic code, a 30 percent rating is the minimum rating when a Veteran has received a hip replacement prosthetic. A 50 percent rating is appropriate when there is moderately severe residuals of weakness, pain or limitation of motion. A 70 percent rating is appropriate where this is markedly severe residual weakness, pain or limitation of motion. A 90 percent rating is warranted where there is painful motion or weakness such as to require the use of crutches. Pursuant to DC 5250, a 60 percent rating is appropriate where there is favorable ankylosis, in flexion at an angle between 20 degrees and 40 degrees, and slight adduction or abduction. Higher evaluations are warranted with more severe ankylosis. 38 C.F.R. § 4.71a Under DC 5252, concerning limitation of flexion of the thigh, a 10 percent evaluation is assigned for limitation of flexion to 45 degrees. A 20 percent evaluation is assigned for limitation of flexion to 30 degrees. A 30 percent evaluation is assigned for limitation of flexion to 20 degrees. The highest schedular rating, 40 percent, is assigned for limitation of flexion to 10 degrees. 38 C.F.R. § 4.71a. Normal ranges of motion of the hip are from hip flexion from 0 degrees to 125 degrees, and hip abduction from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. VA regulations set forth at 38 C.F.R. §§ 4.40, 4.45, and 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. The United States Court of Appeals for Veterans Claims has held that an increased rating can be based on "greater limitation of motion due to pain on use." Deluca v. Brown, 8 Vet. App. 202, 206 (1995). A finding of dysfunction due to pain must be supported by, among other things, adequate pathology. 38 C.F.R. § 4.40 (2013); see also Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). The Veteran received his left hip replacement in November 2005. No complications were noted. At the August 2006 VA examination the Veteran reported some stiffness. The Veteran stated that the hip did not hurt at rest, he was experiencing no weakness, swelling, heating, redness, instability, giving way or locking. The Veteran was not using a cane to walk. The hip was not affecting the activities of daily living. At the December 2009 VA examination the Veteran complained of constant stiffness and pain in both hips. In addition, he reported intermittent fatigue and weakness in both legs. The Veteran denied deformity, instability or giving way, locking, lack of endurance, effusion, episodes of dislocation or subluxation, inflammation, swelling, heat, redness, tenderness, or drainage. On inspection, the examiner found no asymmetry, erythema, edema, or instability, tenderness or crepitus on palpation. There was no evidence of callous formation, skin breakdown, or unusual shoe wear pattern. Flexion was to 90 degrees with pain noted throughout, and abduction was to 30 degrees with pain throughout. External rotation was to 40 and internal rotation was to 25, with pain noted throughout both movements. There was objective evidence of pain, however there was no weakness, incoordination, fatigue, or lack of endurance with repetition of motion. April 2013 and June 2011 radiology exam reports note that the left hip prosthetic appears in good shape and there was no evidence of "loosening or dislocation or other evidence of mechanical hardware failure." At the Veteran's June 2013 hearing, the Veteran expressly indicated that he was more concerned with the evaluation of his right hip disability than his left hip. In fact, when referring to the disability rating for his left hip he noted that "when I saw the 30 percent for my left hip, I could see that." Referencing the notice of disagreement he sent in February 2008, the Veteran explained that he was primarily in disagreement with the evaluation assigned for his right hip. At the hearing, the Veteran made it clear that he had reviewed the rating decision and corresponding diagnostic codes. It is of note that the Veteran has medical training as he served as a medic while on active duty. While the record indicates that the Veteran has experienced some pain, stiffness, and fatigue associated with his left hip replacement surgery, the weight of the evidence does not support a finding that he is currently experiencing "moderately severe residuals of weakness, pain, or limitation of motion" that would warrant a 50 percent rating or higher. There is also no limitation of motion sufficient to warrant a higher rating under DC 5252, nor is there functional loss akin to ankylosis so as to consider application of DC 5250. The record indicates that the Veteran is not currently using crutches or other assistance while walking, such as a cane. The record indicates that the hip replacement is still in good shape, with "no evidence of loosening or dislocation or other evidence of mechanical hardware failure." While pain and increased pain on repetitive motion were demonstrated through the range of motion on VA examination, this did not result in additional functional loss. Pain alone does not constitute a functional loss under VA regulations. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). As a result, the Board finds that an evaluation in excess of 30 percent is not currently warranted. B. Increased Rating for the Right Hip The Veteran is seeking an increased rating for his service-connected osteoarthritis of the right hip. The Veteran's osteoarthritis of the right hip is currently rated under 38 C.F.R. § 4.71a, DCs 5250-5010. Hyphenated codes generally reflect a rating by analogy. See 38 C.F.R. §§ 4.20, 4.27. Under DC 5010, traumatic arthritis is to be rated as degenerative arthritis. Under DC 5003, 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. 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, no 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. In the absence of limitation of motion, a 20 percent evaluation will be assigned with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbation. A 10 percent evaluation will be assigned with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. 38 C.F.R. § 4.71a, DC 5003. As noted, pursuant to DC 5250, a 60 percent rating is appropriate where there is favorable ankylosis, in flexion at an angle between 20 degrees and 40 degrees, and slight adduction or abduction. Higher evaluations are warranted with more severe ankylosis. 38 C.F.R. § 4.71a Under DC 5252, concerning limitation of flexion of the thigh, a 10 percent evaluation is assigned for limitation of flexion to 45 degrees. A 20 percent evaluation is assigned for limitation of flexion to 30 degrees. A 30 percent evaluation is assigned for limitation of flexion to 20 degrees. The highest schedular rating, 40 percent, is assigned for limitation of flexion to 10 degrees. 38 C.F.R. § 4.71a. Under DC 5253, concerning impairment of the thigh, a 10 percent rating is assigned for either limitation of adduction (inability to cross legs) or for limitation of rotation (cannot toe-out more than 15 degrees with the affected leg). A 20 percent evaluation is awarded for limitation of abduction with motion lost beyond 10 degrees. The standard ranges of motion of the hip are zero degrees extension, 125 degrees flexion, and 45 degrees abduction. 38 C.F.R. § 4.71, Plate II. At the Veteran's August 2006 VA examination, the Veteran stated that the right hip was not painful at rest or on walking for two blocks. He did claim stiffness, but denied weakness, swelling, heat, redness, instability, giving way or locking. Minor fatigability and lack of endurance was also noted. At the Veteran's December 2009 VA examination, he reported intermittent fatigue and weakness in both legs, but denied deformity, instability or giving way, locking, lack of endurance, effusion, episodes of dislocation or subluxation, inflammation, swelling, heat, redness, tenderness, or drainage. The Veteran noted that flare-ups occurred daily as a result of increased activities and prolonged sitting. Flare-ups led to increased pain, limited motion, and stiffness. On examination of the right hip, there was no asymmetry, erythema, edema or instability, tenderness, or crepitus on palpation. The range of motion was as follows: flexion, 0 to 70 degrees with pain throughout; extension, 0 to 30 degrees without pain; adduction, 0 to 20 degrees with pain throughout; abduction, 0 to 35 degrees with pain throughout; external rotation, 0 to 55 degrees with report of pain throughout; internal rotation, 0 to 35 degrees with pain throughout. Pain was noted objectively by sighing. There was no weakness, incoordination, fatigue, or lack of endurance with repetitive motion. A June 2011 radiology examination found severe osteoarthritis of the right hip. An April 2012 radiology examination noted advanced degenerative changes in the right hip. An April 2013 radiology examination noted advanced osteoarthritic changes in the right hip. Earlier while addressing VA's duty to notify and assist the Veteran, the Board noted that the Veteran had expressed concern over the adequacy of his VA examinations. In short, the Veteran did not believe that the examiners had properly taken into account the pain that he was in while performing the range of motion tests. In addition, the Veteran further compared the current condition of his right hip to his left hip before he required replacement surgery: My right hip is beginning to do that to the point where if I sit down right now without having had premedicated myself, if I sit down for more than ten minutes, I can't move. So I was urinating on myself with my left hip, and I'm afraid I'm about to start doing that with this hip because I just cannot move. So that's where I'm at now. The evidence suggests that the Veteran's right hip has steadily worsened. The December 2009 VA examiner noted pain throughout many of the range of motion tests. There was evidence of pain during flexion, adduction, abduction, external rotation, and internal rotation. The Veteran has specifically addressed the pain he experienced during flexion at his Board hearing. The Veteran has reported severe flare-ups on a daily basis, and fatigue and weakness that worsens throughout the day. Although the Court determined in Mitchell that pain alone does not constitute functional loss, the Board has carefully considered the Veteran's statements to the effect that he has functional impairment in the right hip from pain that interferes with his ability to stand and to walk. 38 C.F.R. §§ 4.10, 4.40, 4.41, 4.45, 4.59. Given the Veteran's description of his symptoms, the pain shown throughout all ranges of motion and resolving doubt in favor of the Veteran, the Board finds that the current overall evidence more closely approximates a 20 percent rating under 38 C.F.R. § 4.71a, DC 5253. Due to the significant worsening of the Veteran's right hip condition as alleged by the Veteran, the Board finds that a VA examination is necessary to determine if an evaluation in excess of 20 percent is warranted. This will be addressed in the Remand portion of the decision. ORDER Entitlement to an initial rating for status post, total left hip replacement in excess of 30 percent is denied. Entitlement to an initial rating for osteoarthritis of the right hip of 20 percent is granted, subject to the regulations governing the payment of monetary benefits. REMAND The Board notes that nearly four years have passed since the Veteran's last Compensation and Pension VA examination. The last one of record was in December 2009. As discussed earlier in the decision, the Board notes that generally a new VA examination is not warranted based on the mere passage of time. However, the Veteran has reported that his osteoarthritis of the right hip has deteriorated significantly in the past few years. As a result, the Board finds that a new VA examination is necessary to determine if the Veteran's right hip disability has worsened to a degree that would warrant an evaluation greater than the 20 percent evaluation that the Board has granted in this decision. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he identify any additional medical treatment he has received for his right hip disability. Take appropriate steps to secure copies of any such treatment reports identified by the Veteran which are not in the record on appeal, to include updated VA treatment records. Efforts to obtain these records should also be memorialized in the Veteran's VA claims folder. 2. Schedule the Veteran for an examination to determine the current level of severity of his right hip disability. The claims folder and a copy of this Remand must be made available to the examiner who should indicate on the examination report that (s)he has reviewed the folder in conjunction with the examination. Any indicated studies should be performed and the examination report should comply with all protocols for rating a hip disability. 3. Notify the Veteran that it is his responsibility to report for the scheduled VA examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). 4. After the requested records review and opinion are completed, the report should be reviewed to ensure complete compliance with the directives of this remand. If the report is deficient in any manner, it should be returned to the reviewing personnel. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After undertaking any other development deemed appropriate, the RO will re-adjudicate the issues on appeal. If any benefit sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters 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). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs