Citation Nr: 1338038 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 11-20 606 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an increased rating, in excess of 20 percent, for degenerative joint disease, left hip. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and Friend ATTORNEY FOR THE BOARD C. Bruce, Counsel INTRODUCTION The Veteran had active military service from January 1969 to June 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Columbia, South Carolina. The Veteran testified before the undersigned at a Travel Board hearing in August 2012 held at the Columbia, South Carolina, RO. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. The Veteran's degenerative joint disease, left hip, has been manifested throughout this appeal by abduction limited to 10 degrees; but flexion limited to no less than 110 degrees; there is no competent evidence of ankylosis, a flail joint, or impairment of the femur associated with this disability. 2. The Veteran's degenerative joint disease, left hip, has been manifested throughout this appeal by extension limited to 5 degrees. CONCLUSIONS OF LAW The criteria for an increased rating, in excess of 20 percent, for degenerative joint disease, left hip, have not been met for the entirety of this appeal. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5253 (2013). The criteria for a 10 percent rating for limitation of extension associated with degenerative joint disease, left hip, have been met for the entirety of this appeal. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5251 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2013). Here, the Veteran was provided with the relevant notice and information in a July 2010 letter prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). He has not alleged any notice deficiency during the adjudication of his claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. Here, the Veteran's service records and VA records have been obtained and associated with the claims file. The Veteran was also provided with a VA examination which contains a description of the history of the disability at issue; and documents and considers the relevant medical facts and principles relevant to rating the Veteran's left hip condition. VA's duty to assist with respect to obtaining relevant records and an examination has been met. 38 C.F.R. § 3.159(c); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Finally, the Veteran testified at a Travel Board hearing. The hearing was adequate as the Acting Veterans Law Judge who conducted the hearing explained the issue and identified the symptomatology required to address the severity of the Veteran's service-connected left hip disability. 38 C.F.R. 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). Merits of the Claim Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2013). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending and, consequently, 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 (2013). Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability. 38 C.F.R. § 4.14 (2013). However, it is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. 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 innervations, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45, see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. As such, the Veteran's reports of pain have been considered in conjunction with the Board's review of the limitation of motion diagnostic codes. The provisions of 38 C.F.R. § 4.71a, Diagnostic Codes 5250 to 5255 (2013) provide the criteria for rating hip and thigh disabilities. The Veteran's degenerative joint disease, left hip, is currently rated as 20 percent disabling under Diagnostic Code 5253. Diagnostic Code 5253, a 20 percent disability rating applies where the Veteran has limitation of abduction of the thigh, and motion is lost beyond 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5253. Under Diagnostic Code 5251, a 10 percent disability rating applies where the Veteran has limitation of extension of the thigh to 5 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5251. Pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5252, a 10 percent disability rating applies where the Veteran has limitation of flexion of the thigh to 45 degrees. A 20 percent disability rating applies where the Veteran has limitation of flexion of the thigh to 30 degrees. A 30 percent disability rating applies where the Veteran has limitation of flexion of the thigh to 20 degrees. A 40 percent disability rating applies where the Veteran has limitation of flexion of the thigh to 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5252. 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. Diagnostic Codes 5250, 5254, and 5255 are not for application because there is no competent medical or lay evidence that the Veteran has ankylosis or a flail hip joint, nor is there competent evidence of any fracture or malunion of the Veteran's right or left femur. The Veteran was afforded a VA examination in August 2010. The Veteran reported daily pain with weakness and stiffness most of the time. He reported instability and giving way when walking, particularly upstairs. He reported locking of the left hip as well as fatigue and lack of endurance for repetitive motion activities. Pain medication helped during his daily flare-ups which caused him to limp. The examiner noted that the Veteran used a cane. Veteran reported that he could only drive an automatic and that he had to stop and stretch his legs every 30 minutes. He further reported that he could not perform yard work, home maintenance tasks, or recreational pursuits. Upon physical examination the Veteran exhibited obvious gait and balance abnormalities and pain when rising from a chair. Neurological testing was normal. Muscle strength testing was 4/5. There was palpable or audible crepitus. The Veteran exhibited the following range of motion: flexion to 110 degrees, extension to 5 degrees, adduction to 10 degrees, abduction to 10 degrees, external and internal rotation to 15 degrees with pain throughout every movement. Repetitive movements caused increased pain, fatigability, weakness, instability, and incoordination, but no additional limitation of motion. There was both objective and subjective evidence of pain. X-rays associated with the examination revealed mild arthritic degenerative changes of the left hip. At his August 2012 Travel Board hearing the Veteran reported that he could no longer stand for more than 10 minutes without using a walker because his leg would go numb and he would fall. He reported trouble walking and driving. He also reported that his need to use the walker made doing anything at home nearly impossible. A friend testified that the Veteran's left hip had worsened significantly and he was unable to do tasks that he was able to do even a few years before. Finally it was noted that his wife had to stop working to care for the Veteran. The Board notes that the Veteran is currently assigned a 20 percent rating under Diagnostic Code 5253. As noted above, a 20 percent rating is assigned for limitation of abduction of the thigh, and motion lost beyond 10 degrees. A rating of 20 degrees is the highest rating available under this diagnostic code. Under Diagnostic Code 5251, however, a separate 10 percent rating can be granted for limitation of extension of the thigh to 5 degrees. As noted above the Veteran's extension was limited to 5 degrees. As such, the Board finds that an additional 10 percent rating is warranted under Diagnostic Code 5251. With respect to an evaluation under Diagnostic Code 5252, flexion would have to be limited to 45 degrees in order for a compensable rating to be warranted and as noted above the Veteran exhibited flexion to 110 degrees. Accordingly, an additional rating is not for application under Diagnostic Code 5252. The Board has considered the lay evidence of record in making its determination; however, it observes that the Veteran's opinions and observations alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.71a with respect to determining the severity of his service-connected disability. See Moray v. Brown, 2 Vet. App. 211, 214 (1993); see also 38 C.F.R. § 3.159(a)(1) and (2) (2013). Determining the severity of the Veteran's disabilities must be done by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). As discussed above, the competent medical evidence of record supports a higher rating than that currently assigned. As noted above, when evaluating disabilities of the musculoskeletal system, consideration must be given to functional loss due to pain and weakness, excess fatigability, and incoordination causing additional disability beyond that reflected on range of motion measurements. See 38 C.F.R. §§ 4.40, 4.45 (2012); see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995) (holding that the schedular criteria do not subsume sections 4.40 and 4.45). While there is competent and credible evidence that the Veteran's left hip disorder does cause additional functional limitation, it has been considered in the above ratings. Indeed the competent medical evidence indicated that the additional limitations in function did not further limit the Veteran's range of motion. In evaluating the Veteran's claims for higher ratings, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disabilities is inadequate. A comparison between the level of severity and symptomatology of the Veteran's left hip disability with the established criteria found in the rating schedule for that disability shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology, as discussed above. The Board further observes that, even if the available schedular evaluation for the disability is inadequate (which it manifestly is not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms." The record does not show that the Veteran has required frequent hospitalizations for his disabilities. There is no persuasive evidence in the record to indicate that the service-connected disability on appeal would cause any impairment with employment over and above that which is already contemplated in the assigned schedular ratings. The Board therefore has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The preponderance of the evidence in this case is against a higher disability rating than that currently assigned under Diagnostic Code 5253; however a separate 10 percent rating is warranted under Diagnostic Code 5251. ORDER An increased rating, in excess of 20 percent, for degenerative joint disease, left hip is denied. A rating of 10 percent, but no greater, for limitation of extension associated with degenerative joint disease, left hip, is granted. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs