Citation Nr: 1340469 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 08-31 018 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to an increased rating for femur impairment due to right hip disability, status post fracture, currently rated 20 percent disabling. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Jeany Mark, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The Veteran served on active duty from March 1976 to August 1978. These matters initially came before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In that decision, the RO granted a rating of 20 percent, but no higher, for the Veteran's right hip disability and denied the claim for a TDIU. The Veteran testified at a hearing before a decision review officer at the RO in December 2008. In June 2010, the Board denied the claims. In an April 2012 memorandum decision, United States Court of Appeals for Veterans Claims (the Court) vacated the Board's decision and remanded the claims to the Board. In February 2013, the Board denied the claim for an increased rating for right hip disability and remanded the claim for a TDIU to the RO for additional development. In an August 2013 Order, the Court granted a July 2013 Joint Motion by counsel for the Veteran and VA to vacate the Board decision and remand the claim for an increased rating for right hip disability to the Board. Separately, the RO conducted additional development on the claim for a TDIU and returned that claim to the Board. In addition to the paper claims file, there are Virtual VA and Veterans Benefits Management System (VBMS) paperless files associated with the Veteran's case. A review of the documents in the Virtual VA paperless claims file reveals no documents in addition to those in the paper claims file that are relevant to the claims being decided herein. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. The evidence is approximately evenly balanced as to whether symptoms of femur impairment caused by the Veteran's right hip disability most nearly approximate malunion with marked rather than moderate disability. 2. There is no evidence of significant shortening of the lower extremity, impairment of the femur with nonunion and weight bearing preserved with aid of brace, fracture of the surgical neck, limitation of flexion of the thigh to 10 degrees, or ankylosis. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for a rating of 30 percent, but no higher, for femur impairment caused by right hip disability status post fracture have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5255 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist claimants in the development of their claims. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The Court has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In a July 2006 pre-rating letter, the RO notified the Veteran of the evidence needed to substantiate the claim for an increased rating for right hip disability. This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 was amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). In any event, the July 2006 letter complied with this requirement. The Veteran has substantiated his status as a veteran. The Veteran was notified of all other elements of the Dingess notice, including the disability rating and effective date elements of his claim, in the July 2006 letter. In addition, in a May 2008 letter, the RO also provided additional information regarding disability ratings and the criteria applicable to the Veteran's increased rating claim in compliance with a decision of the Court that was subsequently vacated by the Federal Circuit. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Contrary to VCAA requirements, some of the VCAA-compliant notice in this case was provided after the initial adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). The timing deficiency was cured by readjudication of the claim in the August 2008 statement of the case statement of the case (SSOC). Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA obtained the Veteran's service treatment records (STRs) and all of the identified post-service private and VA treatment records. The Veteran was also afforded September 2006, April 2009, and May 2013 VA examinations. As shown by the discussion below, these examinations were adequate because they were based on consideration of the Veteran's prior medical history and described the right hip disability in sufficient detail to allow the Board to make a fully informed evaluation. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Board notes that the Court in its memorandum decision concluded that the April 2009 VA examination was adequate and did not find that VA otherwise violated its duties to notify and assist the Veteran in this case. Similarly, the parties to the Joint Motion did not find any deficiency in VA's compliance with its duties to notify and assist the Veteran with regard to the claim being decided herein. In her November 2013 letter in connection with the Veteran's claim for a TDIU, the Veteran's attorney noted that X-rays were not conducted on the May 2013 VA examination and asserted that the most recent X-rays, from May 2008, were outdated. As the Board is, however, granting a higher, 30 percent rating based on the May 2008 X-rays, and there is no specific allegation of worsening that would be apparent on X-ray, the Board finds that a remand for X-rays is not necessary for an equitable disposition of the claim. Similarly, at the conclusion of her November 2013 letter, the Veteran's attorney requested that records of physical therapy from Middleton Memorial Hospital be obtained. However, given the extensive medical evidence already of record, based on which the Board is granting a higher, 30 percent rating, the Board finds there is no reasonable possibility that physical therapy records contain additional evidence relevant to the criteria for a rating higher than 30 percent, such as significant shortening of the lower extremity, impairment of the femur with nonunion and weight bearing preserved with aid of brace, or fracture of the surgical neck. Another remand resulting in further delay is therefore unnecessary in the circumstances of this case. Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) ("The legal standard for relevance requires VA to examine the information it has related to medical records and if there exists a reasonable possibility that the records could help the veteran substantiate his claim for benefits, the duty to assist requires VA to obtain the records"). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claim for an increased rating for right hip disability is thus ready to be considered on the merits. Analysis 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. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as here, 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 concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, as explained below, a uniform 30 percent rating is warranted for the Veteran's right hip disability. The Veteran's right hip disability is currently rated under 38 C.F.R. § 4.71a, DCs 5003-5255. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. DC 5003 is applicable to DJD or degenerative arthritis and DC 5255 applies to impairment of the femur. The Board notes that separate ratings relating to the same disability are appropriate in some cases, where such ratings do not result in evaluation of the same manifestation under different diagnostic codes. 38 C.F.R. § 4.14 (avoidance of pyramiding); VAOPGCPREC 23-97; 62 Fed. Reg. 63604 (1997); VAOPGCPREC 9-98; 63 Fed. Reg. 56704 (1998) (allowing for separate ratings for limitation of motion and instability of the knee). In this case, the Board granted a separate 10 percent rating for limitation of motion caused by his right hip disability, specifically DJD, in its February 2013 decision. The parties to the July 2013 Joint Motion agreed not to disturb this portion of the Board's February 2013 Board decision, and this aspect of the rating for the Veteran's right hip disability will therefore not be discussed further. As to the current 20 percent rating under DC 5255, that diagnostic code is applicable to impairment of the femur. Under DC 5255, a 20 percent rating is assigned when there is malunion of the femur with moderate hip or knee disability. A 30 percent rating is assigned when there is malunion of the femur with marked hip or knee disability. A 60 percent rating is assigned when there is a fracture of the surgical neck of the femur with a false joint or when there is a fracture of the shaft or anatomical neck of the femur with nonunion but without loose motion and weight bearing is preserved with the use of a brace. An 80 percent rating is assigned when there is a fracture of the shaft or anatomical neck of the femur with nonunion and loose motion. Alternatively, limited or irregular motion of the hip and thigh are addressed in DCs 5250 through 5254. DC 5250 provides various ratings for ankylosis of the hip but, as shown below, there is no evidence of ankylosis in this case. DC 5251, which deals with extension of the thigh, has a maximum rating that is less than the currently assigned 20 percent rating. DC 5252 provides a 20 percent rating when flexion of the thigh is limited to 30 degrees, a 30 percent rating when it is limited to 20 degrees, and a 40 percent rating when it is limited to 10 degrees. DC 5253, which addresses limited abduction of the thigh, provides a maximum rating of 20 percent. DC 5254 addresses flail joint which, as shown below, is not present in this case. Normal range of motion in the hip is flexion to 125 degrees and abduction to 45 degrees. See 38 C.F.R. § 4.71a , Plate II. As noted, a separate rating has been assigned in this decision for noncompensable limitation of motion. The STRs reflect that the Veteran fractured his right hip during service and was treated with open reduction of the hip and removal of the inferomedial aspect of the femoral head fragment. On the September 2006 VA examination, the Veteran reported pain, weakness, stiffness, heat, instability, and locking. He reported that his hip disability flared up approximately once per week for two to three days. The Veteran reported that flares limited his activity and that they improved with rest and heat or cold packs. He occasionally used canes at home but did not use other assistive devices. He estimated that he missed 5 weeks of work in the past year due to hip pain and was subsequently laid off from his former job as a union president and accountant. The Veteran reported that he was unable to do yard work due to his hip pain and that his hip pain made it difficult to dress and walk. He estimated that he could walk a mile if he had to. On examination, the Veteran was noted to ambulate without a limp but with a stiff gait. He could flex his hip to 95 degrees with minimal pain at the extreme of this range of motion. He could extend his hip to 20 degrees, adduct to 20 degrees, abduct to 25 degrees, externally rotate to 40 degrees, and internally rotate to 0 degrees. The Veteran did not have significant pain with these motions. There was no additional disability after repetitive use. The examiner wrote that he could not address range of motion during flare-ups without resorting to speculation because a flare-up was not occurring at that time. X-rays of the hip showed degenerative changes with loss of joint space and osteophyte formation. There was deformity of the femoral head consistent with previous fracture. The examiner diagnosed moderate degenerative changes of the right hip status post femoral head fracture. On the April 2009 VA examination, the Veteran reported constant pain in his posterior right hip and that the pain flared in intensity several times per month. He sometimes used a cane to walk as a result of his hip and back problems. He reported that his hip was presently amidst a flare. On examination the Veteran was able to flex his hip to 95 degrees, with limitation of motion caused by pain. He could extend his hip to 25 degrees, adduct to 20 degrees, abduct to 25 degrees, externally rotate to 40 degrees, and internally rotate to 5 degrees. There was no additional impairment after three repetitive motions. Significantly, the examiner noted that the Veteran felt he was having a flare-up at the time of the examination. The X-ray impression was stable moderate to severe degenerative arthritis of the right hip and the diagnosis was right hip repaired fracture with residual DJD. On the May 2013 VA examination, right hip flexion was to 100 degrees, with objective evidence of painful motion at 90 degrees, right hip extension was greater than 5 degrees with objective evidence of painful motion at greater than 5 degrees. The same figures were given after repetitive motion testing. Additional range of motion testing showed extension was to 30 degrees, adduction to 20 degrees, abduction to 45 degrees, external rotation to 25 degrees, and internal rotation to 3 degrees. There was no change with 3 repetitions. There was no additional limitation of motion of the hip and thigh following repetitive use testing, but there was functional loss or impairment in the form of loss movement than normal, pain on movement, instability on station, disturbance of locomotion, and interfering with sitting standing, and/or weight bearing. The examiner noted that, in the absence of a flare-up at the time of the examination, he could not say whether function would be significantly limited by pain or the other DeLuca factors during flare-ups. There was localized tenderness or pain to palpation for the right hip joints/soft tissue. Muscle strength was a normal 5/5 and there was no ankylosis, malunion, nonunion, flail hip joint, or left leg discrepancy. The Veteran used a cane constantly and a walker regularly. The examiner found that the Veteran had a visibly altered and antalgic gait which prevented any kind of lifting or sustained standing or walking. VA treatment records show treatment for right hip pain. An X-ray in May 2008 showed stable moderate to severe degenerative osteoarthritis of the right hip. The Veteran was prescribed pain medication for his arthritis. In a written statement that was received by the RO in June 2008 the Veteran explained that his hip pain was increasing. He claimed that he was told that a hip replacement or resurfacing would help relieve his increasing arthritis, but that he declined to undergo either of these procedures. At his hearing in December 2008 the Veteran reiterated that his activities were limited by pain in his right hip and his back. The Veteran is not service connected for a back disability. The pain medication helped relieve the Veteran's hip pain well. He attended physical therapy for his hip and back. He used a cane and a walker, although it was unclear if this was a result of his hip disability or his non-service connected back disability. The Veteran testified that the combination of his hip pain and his back pain caused him to be unable to work. The above evidence reflects that the Veteran's femur is impaired, but there is no evidence of nonunion or fracture of the surgical neck with false joint. Ratings of 60 percent or higher are therefore not warranted under DC 5255. The only remaining question is whether the malunion or its equivalent causes slight, moderate, or marked hip disability. The terms slight, moderate, and marked are not defined in the Rating Schedule and an examiner's characterization of a disability is not binding on the Board. As noted by the parties to the Joint Motion, April 2009 VA examiner indicated that the right hip arthritis was moderate to severe. The Veteran's right hip symptoms have also caused him to use a cane and walker and impacted his employment and daily life. Although the Veteran's non-service connected back symptoms have also contributed to these difficulties, the Board cannot separate the effects of the service connected and non service connected disabilities for purposes of this increased rating claim. The benefit of the doubt doctrine thus requires the Board to attribute the effects to the service connected right hip disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998). Given the severe right hip arthritis and its impact on the Veteran's employment and daily life, the evidence is approximately evenly balanced as to whether symptoms of femur impairment caused by the Veteran's right hip disability most nearly approximate malunion with marked or moderate disability. As the reasonable doubt created by this relative equipoise in the evidenced must be resolved in favor of the Veteran, a 30 percent rating is warranted under DC 5255 for marked disability. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Veteran's attorney argued in her October 2012 letter that a 60 percent rating was warranted under DC 5255 based on nonunion, without loose motion, and weight bearing being preserved with the aid of a brace. The Board finds, however, that although the Veteran indicated on both VA examinations and in private treatment records that he used a cane and walker, the above evidence including X-rays showing no abnormality of the shaft or neck of the femur reflects that the symptoms of the right hip disability by themselves (as opposed to his nonservice-connected back disability) did not more nearly approximate fracture of the shaft or anatomical neck with nonunion and weight bearing preserved with the aid of a brace. The Veteran's attorney also argued that the Veteran was entitled to a higher rating under DC 5275, which provides for ratings where there is shortening of the bones of the lower extremity of at least 1 and 1/4 to 2 inches, with shortening of 3 to 3 and 1/2 inches required for a higher, 40 percent rating. The Board notes, however that the April 2009 and May 2013 VA examiners indicated that there was no leg shortening, and the September 2000 and October 2008 treatment notes cited by the Veteran's attorney do not indicate shortening to a degree warranting any higher rating. As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. The discussion above reflects that the symptoms of the Veteran's right hip disability are fully contemplated by the applicable rating criteria. As shown above, the symptoms of the Veteran's right hip disability, including his reported pain, weakness, stiffness, heat, instability, and locking, were considered by the Board. All of these symptoms were considered in granting both the 30 percent rating indicating marked hip disability under DC 5255 as well as the separate 10 percent rating under DC 5003 for limitation of motion. The criteria can therefore be said to reasonably describe the Veteran's disability level and symptomatology, consideration of whether there are other related factors such as those provided by the regulation as governing norms is not required, and referral for consideration of an extraschedular rating for right hip DJD is not warranted. 38 C.F.R. § 3.321(b)(1). For the foregoing reasons, with resolution of reasonable doubt in favor of the Veteran, a rating of 30 percent is warranted for the femur impairment caused by the Veteran's right hip disability. As the preponderance of the evidence is against any higher rating, the benefit of the doubt doctrine is not for further application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). ORDER A rating of 30 percent, but no higher, for femur impairment due to right hip disability, status post fracture, is granted, subject to controlling regulations governing the payment of monetary awards. REMAND As noted, pursuant to the Board's remand, the RO conducted additional development on the TDIU claim, by affording him a VA examination as to the effect of his service connected disabilities on his employability. The RO then continued the denial of the claim for a TDIU in the June 2013 supplemental statement of the case. That denial, however, was premised on the Veteran's schedular ratings being 20 and 10 percent for his right hip disabilities. In the decision above, the Board granted an increased, 30 percent rating for the Veteran's femur impairment due to right hip disability. The Board must therefore consider whether the Veteran would be prejudiced by its consideration of the claim for a TDIU without the RO having first considered a TDIU based on this new factual circumstanced. Bernard v. Brown, 4 Vet. App. 384, 393 (1993). The Board finds that there is a reasonable possibility the Veteran would be prejudiced by its consideration of the claim for a TDIU at this time. The Board's decision recognized that the right hip disability is more severe than that indicated by the 20 percent rating. Although the Veteran is still not eligible for a TDIU on a schedular basis, he and his attorney should be afforded an opportunity to argue that the severity of the right hip disability indicated by the 30 percent rating warrants referral of the claim to the Director of Compensation on an extraschedular basis. 38 C.F.R. § 4.16(b). A remand for initial RO consideration of the claim for a TDIU after implementing the Board's decision grating a 30 percent rating is thus warranted. Accordingly, the claim for a TDIU is REMANDED for the following action: After implementing the Board's decision granting a 30 percent rating for femur impairment due to right hip disability, status post fracture, readjudicate the claim for a TDIU. If any benefit sought on appeal remains denied, furnish the Veteran and his attorney a supplemental statement of the case and return the case to the Board. 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). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs