Citation Nr: 1343515 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 10-40 437 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a higher initial (compensable) disability evaluation for residuals of a left big toe fracture. 2. Entitlement to an evaluation in excess of 10 percent for traumatic osteoarthritis of the left hip with meralgia paresthetica, prior to March 9, 2011. 3. Entitlement to an evaluation in excess of 30 percent for traumatic osteoarthritis of the left hip with meralgia paresthetica, status post total hip replacement, from May 1, 2012 to September 3, 2013. 4. Entitlement to an evaluation in excess of 50 percent for traumatic osteoarthritis of the left hip with meralgia paresthetica, status post total hip replacement, from September 3, 2013. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran, who is also the appellant, had active service from November 1982 through January 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2008 and June 2010 rating determinations of the Department of Veterans Affairs (VA) Regional Office (RO) located in Waco, Texas. In the November 2008 rating determination, the RO, in pertinent part, denied an evaluation in excess of 10 percent for traumatic osteoarthritis of the left hip with meralgia paresthetica. The Veteran perfected his appeal on this issue. The Veteran had surgery on his left hip on March 9, 2011. Thereafter, the RO, in a May 2011 rating determination, assigned a 100 percent evaluation from March 9, 2011, through April 30, 2012, and a 30 percent disability evaluation thereafter, and reclassified the disability as traumatic osteoarthritis left hip with meralgia paresthetica, status post total hip replacement. In the June 2010 rating determination, the RO denied a compensable disability evaluation for residuals of a fracture of the distal phalanx of the left great toe and the Veteran subsequently perfected his appeal. The Veteran appeared at a Travel Board hearing before the undersigned Veterans Law Judge at the RO in March 2012. A transcript of the hearing is of record. In March 2013, the Board remanded this matter for further development, to include performing additional VA examinations. The development requested in the Board remand has been completed. In a September 2013 rating determination, the Appeals Management Center (AMC), acting on behalf of the RO, increased the Veteran's disability evaluation for his traumatic osteoarthritis of the left hip with meralgia paresthetica status post total hip replacement from 30 to 50 percent and assigned an effective date of September 3, 2013. As a result of the AMC/RO's actions, the Board has listed the issues as such on the title page of this decision. FINDINGS OF FACT 1. Arthritis of the left great toe is manifested by less than a moderate disability; it is demonstrated by painful motion and there is X-ray evidence of degenerative joint disease of the first metatarsophalangeal joint of the left foot. 2. Prior to March 9, 2011, left hip abduction limited to 10 degrees or less, and left thigh flexion limited to 30 degrees were not shown, even with consideration of the Veteran's complaints of pain, with evidence of no more than mild neurological impairment. 3. Since May 1, 2012, the Veteran's left total hip replacement residuals are productive of moderately severe residual weakness, pain, and limitation of motion; markedly severe disability has not been shown, with evidence of no more than mild neurological impairment. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 10 percent, but no more, for arthritis of the left great toe have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DCs 5003, 5010, 5283, 5284 (2013). 2. Prior to March 11, 2009, the criteria for an evaluation in excess of 10 percent for left hip osteoarthritis were not met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321(b), 4.1, 4.2, 4.7, 4.10, 4.71a, 4.124a, Diagnostic Codes 5250, 5251, 5252, 5253, 5254, 5255, 8529 (2013). 3. From May 1, 2012, the criteria for a 50 percent evaluation for residuals of a left total hip replacement have been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321(b), 4.1, 4.2, 4.7, 4.10, 4.71a, 4.124a, Diagnostic Codes 5054, 5250, 5251, 5252, 5253, 5254, 5255, 8529 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper VCAA notice 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) and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 has been 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). The Court has also held that 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). As to the issue for a higher evaluation the left hip disorder, a VCAA notice letter sent in August 2007 satisfied the provisions of 38 U.S.C.A. § 5103(a). In this letter, VA informed the Veteran about the information and evidence not of record that was necessary to substantiate the claim; the information and evidence that VA would seek to provide; the information and evidence the Veteran was expected to provide; and the information on disability ratings and effective dates required by Dingess. With regard to the left big toe claim, because the Veteran's appeal arises from his disagreement with the initial rating following the grant of service connection no additional notice is required. The Court and the United States Court of Appeals for the Federal Circuit (Federal Circuit) have held that, once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). As to both issues, the Board finds that there has been substantial compliance with the assistance provisions set forth in the law and regulations. The record in this case includes service treatment records, VA and private treatment records, VA and private examination reports, and lay evidence. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c). No additional pertinent evidence has been identified by the claimant. The Board further notes that as it relates to the left hip disorder, the Veteran was afforded VA examinations in April 2008, December 2009, and September 2013, the last one following his March 2012 Travel Board hearing. As to his left big toe claim, the Veteran was afforded a VA examination in September 2013. Information obtained from the above examinations is sufficient in order to properly address the issues on appeal. As such, the Board finds that additional VA examinations are not warranted as there is otherwise sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). The Veteran also appeared at a Travel Board hearing before the undersigned Veterans Law Judge in March 2012. In Bryant v. Shinseki, 23 Vet. App. 488 (2010) the Court held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer (DRO) or Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issue and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ noted the issues on appeal and sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim including asking about symptoms and asking for all possible treatment records and inquiring as to where the Veteran was receiving current treatment. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor has identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for benefits. In addition, the Veteran was represented by an accredited representative. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), or if there was error, it was harmless due to the Veteran's actual knowledge of what was needed, and that the Board can adjudicate the claim based on the current record. The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by submission of statements and arguments presented by his representative. As discussed above, he also appeared at a Travel Board hearing before the undersigned Veterans Law Judge. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide the appeal. Based upon the foregoing, the duties to notify and assist the Veteran have been met, and no further action is necessary to assist the Veteran in substantiating this claim. Evaluations Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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. 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). In Fenderson, the Court noted an important distinction between an appeal involving a Veteran's disagreement with the initial rating assigned at the time a disability is service connected. Where the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection to consider the appropriateness of "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson, 12 Vet. App. at 126; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, 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. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997); 38 C.F.R. § 4.59 (2013). Left Big Toe The Veteran has indicated that a compensable disability evaluation should be assigned for his left great toe. He has claimed that the toe produces pain. In conjunction with his claim for benefits, the Veteran underwent a VA examination in December 2009. As noted in the prior remand, there is some discrepancy as to which toe was evaluated. Thus, that examination is of little probative value. In his September 2010 notice of disagreement, the Veteran indicated that the pain in his left toe severely affected his locomotion. At the time of his March 2012 Travel Board hearing, the Veteran indicated that his right toe and not his left toe was the toe that was giving him problems. He indicated that he was confused as to the toe for which service connection was in effect. In conjunction with the Board remand, the Veteran was afforded a VA examination in September 2013. The examiner indicated that the claims folder was available and had been reviewed. The examiner rendered diagnoses of status post fracture proximal phalanx and status post fracture left great toe interphalangeal degenerative joint disease. The examiner noted that the Veteran complained of pain over the interphalangeal joint mainly at rest. It was a sharp pain that was more common in bed at night. The Veteran stated that he was not limited in ambulation due to the left great toe pain. Physical examination revealed normal range of motion for the left first toe of the interphalangeal joint. There was tenderness to firm palpation of the left distal first toe and over the interphalangeal joint. X-rays revealed degenerative joint disease of the left first toe interphalangeal joint. The examiner noted that the Veteran's left toe disability did not impact his ability to work. The examiner stated that the Veteran's left big toe fracture residuals were not manifested by weakened movement, excess fatigability, or incoordination. The examiner further reported that there was no nerve involvement and that the left big toe fracture residuals only resulted in mild impairment of the left foot. Under DC 5010, arthritis due to trauma, substantiated by X-ray findings, is to be rated as arthritis degenerative under DC 5003. Under DC 5003, degenerative changes established by X-ray findings are rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint involved. When however, the limitation of motion of the specific joint is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is assigned for limitation of motion, when limitation of motion is objectively confirmed by findings such as satisfactory evidence of painful motion. DC 5283 pertains to malunion or nonunion of the tarsal or metatarsal bones. 38 C.F.R. § 4.124a. Under that DC, a 10 percent rating is warranted for moderate symptoms; a 20 percent rating is warranted for moderately severe symptoms; a 30 percent rating is warranted for severe symptoms; and a 40 percent rating is warranted for actual loss of use of the foot. Based on the evidence of record, the Board finds that arthritis of the left great toe has not been manifested by symptoms that warrant a compensable evaluation under DC 5283. The X-ray findings revealed no evidence of malunion or nonunion of the great toe. The Veteran had active motion of the great toe and there have been no indications of any limitation for standing or walking. The findings therefore do not more nearly approximate or equate to a moderate disability to warrant a compensable rating of 10 percent under DC 5283. For the same reasons, the Veteran would not be entitled to an initial higher evaluation under DC 5284 for other foot injuries, which would require moderate symptoms of impairment. Thus, the Veteran is not entitled to an initial compensable rating of 10 percent for the great toe under DC 5283 or DC 5284. The Board has considered whether the Veteran would be entitled to a higher rating under other diagnostic codes. The evidence does not show that the Veteran has flatfoot, weak foot, an acquired claw foot, Morton's disease, hallux rigidus, or hammer toe to warrant an initial compensable rating under DCs 5276, 5277, 5278, 5279, 5281, and 5282. While the Veteran has been found to have hallux valgus of the left foot, service connection is nor in effect for hallux valgus. Moreover, it has been found to be no more than mild or moderate in nature, which would not warrant a compensable disability evaluation under DC 5280. However, there is X-ray evidence of degenerative joint disease of the first interphalangeal joint and painful motion. Therefore, as there is satisfactory evidence of painful motion with X-ray evidence of degenerative arthritis, a 10 percent rating under DC 5003 is warranted for arthritis of the left great toe. The Board has considered the guidance of DeLuca. The Veteran has complaints of pain and functional impairment in the great toe. This functional impairment, however, is considered by the 10 percent rating currently assigned. At the time of the September 2013 VA examination, the examiner stated that the Veteran's left big toe fracture residuals were not manifested by weakened movement, excess fatigability, or incoordination which would warrant a higher rating. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. The Board has also considered whether the Veteran is entitled to additional staged ratings. See Hart, 21 Vet. App. 505. Based upon the record, the Board concludes that at no time during the appeal period has the great toe disability been more disabling than as currently rated. Left Hip As it relates to the Veteran's left hip disorder, the provisions of 38 C.F.R. § 4.71a, Diagnostic Codes 5250 to 5255 below, provide the criteria for rating hip and thigh disabilities. Diagnostic Code 5250 requires ankylosis of the hip. Favorable ankylosis of the hip in flexion at an angle between 20 degrees and 40 degrees with slight adduction and abduction warrants a 60 percent evaluation. A 70 percent evaluation is assigned for intermediate ankylosis and extremely unfavorable ankylosis, with the foot not reaching the ground, and the necessity of crutches warrants a 90 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5250. Diagnostic Code 5251 provides a maximum rating of 10 percent for limitation of extension of the thigh to 5 degrees. Diagnostic Code 5252 provides 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. Increased evaluations under Diagnostic Codes 5254 and 5255 require flail joint, fracture, or malunion of the hip or femur. Diagnostic Code 5054 provides a 100 percent rating for hip replacement (prosthesis) with prosthetic replacement of the head of the femur or of the acetabulum for one year following implantation of prosthesis. Thereafter, a 90 percent rating may be assigned following implantation of prosthesis, with painful motion or weakness such as to require the use of crutches. A 70 percent rating is assignable for markedly severe residual weakness, pain or limitation of motion following implantation of prosthesis. With moderately severe residuals of weakness, pain, or limitation of motion, a 50 percent rating may be assigned. The minimum rating assignable is 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5054. The Board notes that the terms "markedly severe" and "moderately severe" in the criteria for the 50 percent and 70 percent ratings under DC 5054 are not defined in the rating schedule. Rather than applying a mechanical formula, VA must evaluate all the evidence to the end that decisions are equitable and just. 38 C.F.R. § 4.6. Under Diagnostic Code 8529, a disability rating of zero percent is assignable for paralysis which is mild to moderate and a disability rating of 10 percent is assignable for paralysis which is severe to complete in degree. 38 C.F.R. § 4.124a, Diagnostic Code 8729. Diagnostic Code 8529, under which the Veteran meralgia paresthetica has been rated, addresses the criteria for evaluating neuralgia of the external cutaneous nerve of the thigh. The criteria are consistent with the criteria for evaluating degrees of paralysis as set forth. 38 C.F.R. § 4.124a, Diagnostic Code 8529. With peripheral nerve injuries, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion, or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. The Veteran maintains that the symptomatology associated with his left hip disorder warrants an evaluation in excess of 10 percent prior to the left hip replacement surgery in March 2011 and warrants evaluations greater than those assigned subsequent to the one year period following the March 2011 surgery. In conjunction with his claim, the Veteran was afforded a VA examination in April 2008. At the time of the examination, the Veteran reported having pain in the hip all the time. There were no flares and it was worse with cold weather and with prolonged standing, walking, and climbing stairs. The pain radiated down from the groin into the lateral thigh and into the left knee. There was tingling and numbness sometimes in the thigh. The Veteran reported having cracking/popping in the hip. There were no periods of incapacitation. There was no redness, swelling, warmth, or locking in the hip. The Veteran stated that his left hip felt unsteady at times but he had not fallen in the last three years. There were no flare-ups. There were also no episodes of subluxation or dislocation. As to employment, the condition did not affect the Veteran's ability to work. He had lost no time from work. He could not run, had difficulty climbing stairs, and could not play sports, with only limited exercise, as a result of the hip. Walking was limited to one mile. Physical examination revealed active flexion from 0 to 110 degrees and passive flexion from 0 to 125 degrees, with pain from 80 degrees to the end. Extension was from 0 to 20 degrees, adduction from 0 to 25 degrees, abduction from 0 to 50 degrees, external rotation from 0 to 60 degrees, and internal rotation from 0 to 30 degrees, with pain at the end of each range of motion, with the exception of internal rotation which had pain from 20-30 degrees. There was no limitation or change in range of motion with 5 repetitions. The Veteran did report increased pain. There was mild pain to palpation of the lateral hip with no redness, swelling, or warmth. There was also no guarding. There was no leg weakness and no sensory loss in the lateral thigh. Sensation was intact to touch and pinprick. The Veteran had a normal gait with no limp. He could walk on his heels and toes and could squat. There was no ankylosis. A diagnosis of left hip traumatic arthritis with meralgia paresthetica was rendered. The examiner noted that the Veteran did have hip pain radiating to the lateral thigh and knee that was related to his hip condition and his meralgia paresthetica. At the time of a December 2009 VA general medical examination, hip range of motion revealed flexion to 115 out of 125 degrees, extension to 10 out of 15 degrees, abduction to 35 out of 45 degrees, adduction to 20 out of 30 degrees, internal rotation to 30 out of 40 degrees, and external rotation to 35 out of 45 degrees. After three repetitions, the Veteran experienced pain in all motions toward the end but with no further reduction. Mild tenderness was felt over the joint line area with no heat, redness, or swelling. In an October 2010 private treatment record, the Veteran reported that his hip pain had become more severe and he was having a very difficult time walking. Anti-inflammatories had not helped. The Veteran stated that the pain was mainly in the groin region although he did have some pain in the buttock radiating down the lateral aspect of his leg. On March 9, 2011, the Veteran underwent a left total hip arthroplasty. At his March 2012 hearing, the Veteran testified that at the time of the December 2009 VA examination he was using a cane. He noted that the examination given in December 2009 was not as thorough as the 2008 examination. The Veteran stated that he was in pain the entire 2009 examination. He noted that when range of motion studies were performed, the ranges were forced and he had to subsequently seek medical attention as a result of the pain. The Veteran stated that he was originally scheduled for hip surgery in September 2010 but that was postponed. The Veteran reported having had flare-ups since 2006-2007. He stated that his hip condition was much worse in 2010 than it was in 2008. The Veteran indicated that he treated his hip with cold compresses both prior and subsequent to the surgery. The Veteran stated that he could not take his grandchildren to the mall and that he had someone else do his shopping. He testified that prior to the surgery, he could not walk any great distances. He stated that he spent a lot of time avoiding things that he could not do. The Veteran noted having to take a break after about one hour in the car. He also stated that he could not sit down for extended periods of time. The Veteran indicated that his private physician had stated that the numbness he experienced on the outside of his leg was related to his hip condition. The Veteran reported that he had lost feeling on the side of his hip. He indicated that the numbness had not improved following the surgery and that he had tingling in the hip when sitting too long. At the time of an April 2012 private visit, the Veteran indicated that he had some tenderness over his left anterior hip muscles. He was noted to have good function and range of motion. X-rays showed the hip to be in good position with no obvious problems. There was a slight amount of heterotopic bone. It was the physician's assessment that the Veteran had a post total hip arthroplasty with components appearing in good position. In conjunction with his claim and in accordance with the March 2013 Board remand, the Veteran was afforded an additional VA examination in September 2013. At the time of the examination, the Veteran reported having hip pain every day. He was still working at a post office warehouse and he drove a forklift. He estimated that he walked 5-10 miles per shift. The veteran took Oxycontin for the pain. Without medication, he was only able to walk one block before needing to rest his hip. The Veteran did not report having flare-ups. Range of motion testing revealed flexion from 0 to 90 degrees and extension to greater than 5 degrees, with no objective evidence of painful motion. Abduction was not lost beyond 10 degrees, and adduction was not limited such that the Veteran could not cross his legs. Rotation was not limited to the point where the Veteran could not toe out more than 15 degrees. Internal rotation was from 0 to 20 degrees, with pain at 15 degrees; external rotation was from 0 to 20 degrees with no pain, abduction was from 0 to 35 degrees with pain at 25 degrees, and adduction was from 0 to 20 degrees with no pain. The Veteran was able to perform repetitive testing with three repetitions. He could flex to 90 degrees and could extend to greater than 5 degrees, with no lost abduction beyond 20 degrees, no loss of the ability to cross his legs, and the ability to toe-out more than 15 degrees. There was no additional limitation of motion with repetitive motion. The Veteran had pain on movement and interference with sitting, standing, and/or weight bearing. There was tenderness/pain to palpation for the joints/soft tissues of the left hip. Muscle strength testing was 5/5 for hip flexion, abduction, and extension. There was no ankylosis or malunion of the femur, flail hip joint, or leg length discrepancy. The Veteran was noted to have intermediate degrees of residual weakness and pain or limitation of motion following the surgery. He used a cane as an assistive device when working as a forklift operator at the post office. The examiner stated that the hip condition did not impact the Veteran's ability to work. The examiner further indicated that given the Veteran's report of increased pain after walking one block when not taking medication, to estimate any decrease in range of motion following walking one block when not on pain medication would require resort to mere speculation since the activity could not be re-created in the office. The examiner stated that the left hip replacement surgery residuals were not manifested by weakened movement, excess fatigability, or incoordination. The examiner opined that the symptoms due to meralgia paresthetica were slight and that the left hip replacement residuals resulted in moderately severe residuals of pain and limitation of motion. Evaluation of Left Hip Degenerative Joint Disease Prior to Hip Prosthesis Surgery The question is whether there is a basis for an evaluation in excess of 10 percent for the time period prior to the left hip replacement surgery, which occurred on March 9, 2011. Prior to the surgery, there was no evidence indicating ankylosis (Diagnostic Code 5250); flexion limited to 30 degrees (20 percent under Diagnostic Code 5252); flail joint (80 percent under Diagnostic Code 5254); or malunion of the femur, with moderate knee or hip disability (20 percent under Diagnostic Code 5255). Notably, there were no findings of limitation of flexion, even taking into account painful motion, which would warrant a higher evaluation under Diagnostic Code 5252. See DeLuca v. Brown, supra. The remaining code section to consider is Diagnostic Code 5253, which allows for a maximum 20 percent evaluation for limitation of abduction, with motion lost beyond 10 degrees. Such a loss of motion was not demonstrated. The Veteran has expressed his opinion that the symptomatology associated with left hip arthritis warrants a higher disability evaluation. Lay testimony is competent to establish the presence of observable symptomatology. Layno v. Brown, 6 Vet. App. 465, 469 (1994). He is not, however, competent to identify a specific level of disability of the disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's left hip disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. As such, the Board finds these records to be more probative than the Veteran's subjective evidence of complaints of increased symptomatology. The weight of the lay and medical evidence does not support an evaluation in excess of 10 percent for left hip degenerative joint disease prior to March 9, 2011, and to that extent the appeal is denied. Evaluation of Total Hip Replacement The Board concludes that an increased rating of 50 percent, but not greater, is warranted for the left hip from termination of the 100 percent rating on May 1, 2012. The Board acknowledges that the minimum 30 percent rating following placement of a hip prosthesis contemplates some level of discomfort and loss of function and that the private and VA medical records also show some contributions to the Veteran's pain and mobility deficits from disorders of the left hip, left knee, and lower back. Nevertheless, the weight of medical evidence after the surgical revision shows that symptoms that are present are best described as moderately severe. Prior to surgical total hip replacement, the Veteran consistently reported increased pain, weakness, and fatigue. Range of motion was noted to be less than normal on all VA examinations performed following the left hip surgery with difficulty sitting, standing, and walking due to stiffness and pain being reported. The Veteran required a cane, at least in part due to his left hip disorder. In consideration of all the evidence prior to and after surgery in March 2011, including the Veteran's reported complaints, the Board concludes that the residual symptoms of the Veteran's hip arthroplasty are more severe than are contemplated by the minimum 30 percent rating. As there is a question as to which of two evaluations shall be applied, the Board will afford the Veteran the benefit of doubt and assign the higher 50 percent evaluation because the disability picture more nearly approximates the criteria required for that rating. A higher rating is not warranted because the evidence does not show markedly severe residual weakness, pain, or limitation of motion. The range of motion of left hip is not markedly severe. The medical evidence predominantly shows range of motion on flexion to 90 degrees even with repetitive use. As the range of motion lost is not greater, a higher rating than 50 percent is not warranted. Moreover, the Veteran has abduction predominantly to 35 degrees even after repetitive use. As normal range of motion is to 45 degrees, the range of motion lost constitutes no more than a moderately severe disability. As the range of motion lost is not greater, a rating higher than 50 percent is not warranted. Furthermore, the September 2013 VA examiner specifically found that the Veteran's left hip replacement residuals resulted in moderately severe residuals of pain and limitation of motion. The Veteran's residual weakness and pain have been taken into account in granting the higher rating and, in addition, all doubt in evaluation of the disability has been resolved in the Veteran's favor in the granting of a 50 percent rating. It is noted that consideration has been given to whether staged ratings are warranted in this case. However, the Board finds, based on the discussion above, that the level of severity of the condition has not varied during the addressed period of time such that staged ratings were warranted following the March 2011 surgery. As to the neurological impairment resulting from the left hip disorder, namely meralgia paresthetica, as noted above, for a 10 percent disability evaluation, paralysis must be severe to complete in degree. At no point in time has the Veteran's neurological impairment been described as severe in nature. At the time of the most recent VA examination, the Veteran's meralgia paresthetica was described as mild in nature. The record does not contain any findings that the Veteran's meralgia paresthetica is severe or complete in nature, nor does the clinical evidence reveal findings demonstrating severe or complete paralysis. As such, a separate disability evaluation based upon neurological impairment would not be warranted at any time during the appeal period. Extraschedular Consideration In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2013). 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 the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, 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. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other 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"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has 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 for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. In this case, the Board finds that the schedular rating criteria contemplate the Veteran's left hip and left big toe disabilities and the symptoms associated with the disabilities including limitation of motion, difficulty standing, walking, and complaints of pain. The schedular rating criteria pertaining to the Veteran's left hip and left big toe disabilities provide for ratings based on limitation of motion, including due to pain and other orthopedic factors such as weakness, incoordination, and fatigability. 38 C.F.R. §§ 4.40 , 4.45, 4.59; see also DeLuca. Because the schedular rating criteria are adequate to rate the Veteran's left hip and left big toe disabilities, there is no exceptional or unusual disability picture to render impractical the application of the regular schedular standards. For these reasons, the Board finds that the criteria for referral for extraschedular rating have not been met. 38 C.F.R. § 3.321(b)(1). There has also been no demonstration that the Veteran is not currently employed. (CONTINUED ON NEXT PAGE) ORDER An initial 10 percent disability evaluation for residuals of a left big toe fracture is granted. An evaluation in excess of 10 percent for left hip osteoarthritis prior to March 9, 2011 is denied. A 50 percent evaluation for residuals of a left hip total replacement from May 1, 2012 is granted. ____________________________________________ K. J. Alibrando Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs