Citation Nr: 1342980 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 10-09 286 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to an initial rating in excess of 10 percent for a left hip disability. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran served on active duty from February 2004 to October 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in April 2012. The Board remanded the Veteran's claims for additional development in August 2013. FINDING OF FACT The Veteran's left hip disability is manifested by objective evidence of some limitation of flexion with pain, and subjective evidence of pain. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for a left hip disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.7, 4.71, 4.71a, Diagnostic Codes 5252 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice 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, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in letters dated in November 2008, January 2009, March 2009, April 2009, May 2009, and September 2013. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the October 2013 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained examinations with respect to the claim. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). Where entitlement to compensation has already been established and an increase in the assigned rating is at issue, it is the present level of disability that is of primary concern. Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7. Vet. App. 55 (1994). 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. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two ratings shall be applied, the higher rating 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). When rating musculoskeletal disabilities on the basis of limited motion of a joint, VA must consider functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination. 38 C.F.R. §§ 4.40, 4.45 (2013); DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered only in conjunction with diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The regulations preclude the assignment of separate ratings for the same manifestations under different diagnoses. The critical element is that none of the symptomatology for any of the conditions is duplicative of or overlapping with symptomatology of the other conditions. 38 C.F.R. § 4.14 (2013); Esteban v. Brown, 6 Vet. App. 259 (1995). For VA purposes, normal range of motion of the hip is from 0 to 125 degrees of flexion and 0 to 45 degrees of abduction. 38 C.F.R. § 4.71, Plate II (2013). The Veteran claims that his service-connected left hip disability warrants an increased rating. At a December 2008 VA examination, the Veteran reported a painful left hip which popped out of joint when moving from a sitting to a standing position. Physical examination revealed that the Veteran ambulated with an antalgic gait to the left with a mild left-sided list. On palpation there was tenderness in the groin (hip capsule) but no trochanteric tenderness. Range of motion revealed flexion to 90 degrees with pain and adduction to 90 with pain, noted to be a positive impingement sign. Extension was reported to produce an audible pop at the hip joint. Abduction was to 45 degrees which was mildly painful. Adduction was to 25 degrees with pain. External rotation was to 60 degrees and internal rotation to 20 degrees with pain. X-rays of the left hip revealed arthritis. The Veteran was diagnosed with internal impingement with labral pathology and arthritis. The examiner noted painful motion at 80 degrees, limited motion to 55 degrees, moderate weakness, moderate lack of endurance, and no lack of coordination. The examiner indicated that additional functional impairment of the left hip could not be specified in degrees without resorting to speculation. Private treatment reports from Triangle Orthopaedic Association dated from November 2007 to April 2008 show reports of left hip pain and leg numbness. A magnetic resonance imaging (MRI) of the pelvis was noted to be normal in November 2007. X-rays of the left hip were reported to be unremarkable with the exception of some thickening of the head/neck junction superiorly which could be suggestive of chronic impingement. The Veteran was assessed with hip pain and unexplained left leg numbness with essentially normal pelvis. In April 2008, he was assessed with left hip pain, snapping soleus with evidence of Pincer type impingement of the left hip. No range of motion findings were included with the records. VA outpatient treatment reports show reports of back, left hip, and left knee pain in December 2008. In April 2009, the Veteran reported low back pain radiating to the left hip. X-rays of the left hip dated in December 2008 found no evidence of fracture or dislocation. Physical examination revealed that there was no limitation of movement of the hip, but discomfort behind the left hip was noted. There was no pain or tenderness in the greater trochanteric region. A February 2010 MRI found no evidence of osteonecrosis and a possible small synovial herniation pit in the superior left femoral neck. In March 2010, the Veteran reported hip pain. Range of motion studies found equal range of motion of the hips with mild groin pain with maximal internal rotation on the left side. The Veteran had significant tenderness over the trochanteric prominence laterally. There was no discomfort with internal rotation with the leg in extension. Review of x-rays revealed a normal appearing hip and the MRI revealed questionable evidence of a small synovial cyst in the superior neck. The examiner assessed the Veteran with trochanteric bursitis with snapping iliotibial band. The Veteran was seen again for a report of left hip pain in April 2010 at which time he reported tenderness over the greater trochanter and laterally but no snapping of the iliotibial band. He also noted pain with internal and external rotation. In April 2011, the Veteran reported left hip pain. He was assessed with trochanteric bursitis with snapping iliotibial band. At an April 2012 Travel Board hearing, the Veteran testified that his left hip was painful and popped out of joint when he was in service. He reported that he was treated at VA with pain medication. He indicated that the condition had worsened since the time of the December 2008 VA examination. The Veteran testified that he was limited in his hobbies, such as hunting, due to his left hip disability. At an October 2013 VA examination, the examiner reviewed the claims file and noted that the Veteran had a diagnosis of internal impingement of the left hip with labral pathology and arthritis. The Veteran reported daily pain with flare-up when he was on his feet for prolonged periods of time. He noted that twisting the torso especially aggravated the hip. Frequent popping was also reported. Flare-ups were reported to occur due to repetitive use once monthly and required the Veteran to rest and take more Ibuprofen. Range of motion of the left hip was flexion to 115 degrees with pain beginning at 90 degrees and extension greater than five degrees and no objective evidence of pain. Abduction was not lost beyond 10 degrees. Adduction was not limited such that the Veteran could not cross his legs, and rotation was not limited such that the Veteran could not toe-out more than 15 degrees. The Veteran was able to perform repetitive-use testing with three repetitions. There was no additional limitation in range of motion of the hip and thigh following repetitive-use testing. The examiner noted that there was less movement than normal of the left hip, weakened movement of the left hip, excess fatigability of the left hip, pain on movement of the left hip, disturbance of locomotion of the left hip and interference with sitting, standing, or weight-bearing of the left hip. There was pain to palpation of the left hip. There was no ankylosis of the left hip and no malunion or nonunion of the femur, flail hip joint, or leg length discrepancy. The Veteran has not had a total hip joint replacement. X-rays were noted to confirm a diagnosis of arthritis. The examiner indicated that the Veteran was able to operate heavy equipment for his occupation with reasonable accommodation. He was not able to perform heavy lifting, stooping, bending, or twisting. The Veteran's left hip disability has been rated under Diagnostic Code 5252 for limitation of flexion of the thigh. Diagnostic Code 5252 provides a 10 percent rating for flexion limited to 45 degrees; a 20 percent rating for flexion limited to 30 degrees; a 30 percent rating for flexion limited to 20 degrees; and a 40 percent rating for flexion limited to 10 degrees. 38 C.F.R. § 4.71a (2013). Range of motion testing at the examinations of records revealed flexion of the left hip limited to no less than 90 degrees. Therefore, the Board finds that an increased rating is not warranted under Diagnostic Code 5252. The Board must also consider whether the Veteran's left hip disability warrants an increased rating under any of the Diagnostic Codes pertaining to the hip. Diagnostic Codes 5250 through 5255 are used to rate disabilities of the hip and thigh. 38 C.F.R. § 4.71a (2013). The Board finds that Diagnostic Codes 5250 (ankylosis of the hip), 5254 (flail joint of the hip), and 5255 (impairment of the femur) are not applicable because the evidence does not show that the Veteran's left hip disability has been manifested by ankylosis of the hip, flail joint of the hip, or an impaired femur. Therefore, an increased rating is not warranted under those diagnostic codes. Diagnostic Code 5251 provides for a 10 percent rating when extension of the thigh is limited to 5 degrees. 38 C.F.R. § 4.71a (2013). That is the only rating available under Diagnostic Code 5251. The December 2008 examiner did not include findings regarding extension of the thigh. However, at the time of the most recent examination, the Veteran had greater than 5 degrees of extension. Consequently, the Board finds that no increased or separate rating is warranted under Diagnostic Code 5251 because the criteria for a compensable rating are not met. Diagnostic Code 5253 pertains to impairment of the thigh and provides for a 10 percent rating for either limitation of adduction (cannot cross legs) or limitation of rotation (cannot toe out more than 15 degrees); and a 20 percent rating for limitation of abduction for motion lost beyond 10 percent. 38 C.F.R. § 4.71a (2013). The range of motion findings documented at the examinations do not show a limitation of adduction or rotation such that the Veteran cannot cross his legs or toe out more than 15 degrees. Nor do the range of motion findings approximate a limitation of abduction of motion lost beyond 10 degrees, to warrant any increased or separate rating under Diagnostic Code 5253 at any time during the pendency of the appeal for the left hip disability. The Veteran was able to cross his legs and toe out more than 15 degrees on examination. Additionally, there was no evidence of any functional loss which would equate to a higher rating. DeLuca v. Brown, 8 Vet. App. 202 (1995). Although the most recent VA examiner indicated that there was less movement than normal of the left hip, weakened movement of the left hip, excess fatigability of the left hip, pain on movement of the left hip, disturbance of locomotion of the left hip and interference with sitting, standing, or weight-bearing of the left hip, the examiner specifically found that the Veteran was able to perform repetitive-use testing with three repetitions and that there was there was no additional limitation in range of motion of the hip and thigh following repetitive-use testing. Consequently, the evidence does not show any additional functional loss due to pain or any other factors that would warrant any higher rating. In sum, the Board finds that the Veteran's left hip disability does not warrant an increased rating at any time during the pendency of this appeal. The preponderance of the evidence is against the claim for an increased rating and the claim is denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has considered whether an extraschedular rating is warranted. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate. Thun v. Peake, 22 Vet. App. 111 (2008); Fisher v. Principi, 4 Vet. App. 57 (1993); 38 C.F.R. § 3.321(b)(1) (2013). Factors for consideration in determining whether referral for an extraschedular rating is necessary include marked interference with employment or frequent periods of hospitalization that indicate that application of the regular schedular standards would be impracticable. Thun v. Peake, 22 Vet. App. 111 (2008); 38 C.F.R. § 3.321(b)(1) (2013). The Board finds that referral for extraschedular consideration is not warranted. The evidence of record does not show that the Veteran's service-connected left hip disability markedly interferes with employment, beyond that contemplated in the assigned rating, or causes frequent periods of hospitalization. The most recent VA examiner specifically reported that the Veteran was able to perform his job duties with accommodations. Moreover, the service-connected left hip disability has not required frequent periods of hospitalization. Consequently, the Board finds that the evidence does not show that the criteria for referral for consideration of an extraschedular rating are met because marked interference with employment and frequent hospitalizations are not shown. 38 C.F.R. § 3.321(b)(1) (2013); Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). ORDER Entitlement to an initial rating in excess of 10 percent for a left hip disability is denied. ____________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs