Citation Nr: 1440567 Decision Date: 09/11/14 Archive Date: 09/18/14 DOCKET NO. 12-28 011 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to a disability rating greater than 50 percent for avascular necrosis of the left hip with degenerative arthritis, post-surgical hip replacement and revision of the prosthesis. 2. Entitlement to a total disability rating based upon individual unemployability due to service connected disabilities (TDIU). 3. Entitlement to a disability rating greater than 20 percent for spondylolisthesis of the lumbar spine, secondary to trauma. 4. Entitlement to a disability rating greater than 10 percent for avascular necrosis of the right hip with degenerative arthritis. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The Veteran served on active duty from January 1951 to October 1953. This matter comes before the Board of Veterans' Appeals (Board) from an April 2010 RO decision. In April 2014, the Veteran presented sworn testimony during a hearing before the undersigned Veterans Law Judge. The transcript of the hearing is of record and has been reviewed. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2). The issues of entitlement to increased disability ratings for spondylolisthesis of the lumbar spine, currently rated as 20 percent disabling; and for avascular necrosis of the right hip with degenerative arthritis, currently rated as 10 percent disabling are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. Prior to the April 2013 surgery, the Veteran had severe pain and limitation of left hip function, related to his prior hip replacement prosthesis. 2. After the April 2013 prosthetic revision surgery, the Veteran's weight bearing and range of left hip motion was limited, and he was deemed at risk for hip dislocation due to instability. 3. The veteran uses a walker outside his home and a cane inside his home due to instability of his left hip. 4. The Veteran is rendered unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. CONCLUSIONS OF LAW 1. A 70 percent disability rating is warranted for avascular necrosis of the left hip with degenerative arthritis, post-surgical hip replacement until April 2013. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. § 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5054 (2013). 2. A 100 percent disability rating is warranted for one year following the April 2013 implantation of a new prosthesis. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. § 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5054 (2013). 3. A 90 percent disability rating is warranted for avascular necrosis of the left hip with degenerative arthritis, post-surgical hip replacement. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. § 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5054 (2013). 4. A total disability rating for compensation based upon individual unemployability due to service-connected disabilities is warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran contends his service-connected disabilities result in greater impairment than is reflected in the currently-assigned disability ratings. He particularly believes that he is precluded from employment on account of the severity of his service-connected disabilities. He also asserts that the VA examination provided to him in 2010 was inadequate and he requests a more thorough examination. In deciding the Veteran's claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as in the present case, entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a "staged rating, i.e., an assignment of different ratings for distinct periods of time. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). Left hip Historically, service connection for disability of the left hip was granted effective in February 1993, as secondary to his low back disability. He underwent hip replacement surgery in September 1993. A 50 percent disability rating was assigned effective in November 1994, following a convalescent period, and has remained in effect since that time. The Veteran filed the current claim for an increase in December 2009. Medical records reflect the Veteran's complaints of pain in his hips, and some rounds of physical therapy in 2009. Additionally his VA records show that he has been taking strong prescription medication for control of pain throughout the appeal period. During the hearing on appeal, however, he stated that the physical therapy helped for a little bit, but that he believed he ended up with greater hip pain than before. In April 2013, the Veteran underwent a surgical revision of his left hip arthroplasty, after imaging tests showed the cup, or socket portion of the ball and socket joint had slipped. According to the surgical report, the cup had slipped dramatically, resulting in quite a bit of bone loss. A new prosthesis was inserted and fitted into place with multiple surgical screws. The April 2013 surgical report provides that postoperatively, the Veteran's weight bearing and range of left hip motion are limited. The surgeon commented that, "Hopefully, if he is careful, he will not dislocate his hip, although one of my major concerns with his hip is his stability. Unfortunately, at this point, I did not really have a lot of options due to the significant bone loss." During the hearing on appeal, the Veteran testified that after the 2013 surgery, he had used a walker for stability, in light of the surgeon's recommendation that he take precautions to avoid dislocating the hip joint. He testified that he felt he needed the walker to maintain his hip stability as well. Prior to the 2013 surgery, he explained he had used a cane for assistance with walking, but that afterwards he uses his walker at all times when he is outside his home. Inside the home he feels comfortable using a cane, and he keeps one in each room. Following a hip replacement, the governing Diagnostic Code requires that a 100 percent disability rating be assigned for one year following the implantation of the prosthesis. 38 C.F.R. § 38 C.F.R. § 4.71a, Diagnostic Code 5054. Review of the history of this claim shows that a 100 percent rating was assigned for one year after the 1993 left hip prosthesis was implanted. However, the Veteran required a second left hip prosthesis in 2013, as described above. Therefore, a 100 percent disability rating is required for one year after the April 2013 surgery as well. Following implantation of a hip prosthesis with painful motion or weakness such as to require the use of crutches, a 90 percent disability rating is assigned. Markedly severe residual weakness, pain or limitation of motion following implantation of prosthesis warrants a 70 percent disability rating. Moderately severe residuals of weakness, pain or limitation of motion warrant a 50 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5054. The Veteran has been medically described as at risk for dislocating his hip. The Veteran has described the care he takes to avoid such an event and has testified that he is dependent upon a walker due to instability of his left hip, as well as his painful motion and weakness. The Board finds that these findings approximate the criteria for the maximum 90 percent rating under DC 5054. As such, a 90 percent rating is warranted. The preponderance of the evidence is against a disability rating greater than 90 percent. This award represents the highest disability rating provided for impairment related to a hip replacement; there are no schedular criteria for a disability rating greater than 90 percent. We observe that in implementing this grant, the RO may need to award special monthly compensation as well, under the governing rating criteria. For the time period prior to the April 2013 surgery, the Board finds that the criteria for a 70 percent disability rating more nearly approximate the Veteran's symptoms of severe pain and weakness. Based upon his testimony that he used a cane and did not require a walker until after the surgery, the Board finds that the cane is not analogous to the use a crutches as would support a higher disability rating before the surgery. TDIU The Veteran contends his service-connected disabilities render him unable to retain or maintain gainful employment. During the April 2014 hearing on appeal, he testified that he cannot sit or stand for any appreciable period of time due to pain and stiffness in his back and hips. In a recent decision, the Court held that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total rating based on individual unemployability is warranted as a result of that disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). Total disability ratings for compensation based on individual unemployability may be assigned when the combined schedular rating for the service-connected disabilities is less than 100 percent and when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, this disability is ratable at 60 percent or more, or if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the purpose of one 60 percent disability or one 40 percent disability in combination, disabilities resulting from common etiology or a single accident will be considered as one disability. The Veteran's employment history, educational and vocational attainment, as well as his particular physical disabilities are to be considered in making a determination on unemployability. It is further provided that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the Veteran unemployable. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In determining whether the Veteran is entitled to a total disability rating based upon individual unemployability, neither his nonservice-connected disabilities nor his advancing age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose. The Veteran has been awarded service connection for avascular necrosis of the left hip with degenerative arthritis, post-surgical hip replacement, now rated between 70 and 100 percent disabling during the time period at issue; for spondylolisthesis of the lumbar spine, currently rated as 20 percent disabling; and for avascular necrosis of the right hip with degenerative arthritis, currently rated as 10 percent disabling. The combined disability rating is therefore 80 percent prior to April 2013, 100 percent for one year after the April 2013 surgery, and 90 percent after that. 38 C.F.R. § 4.25. As such, he meets the schedular criteria for an award of a total disability rating for compensation based on individual unemployability under the provisions of 38 C.F.R. § 4.16(a), IF in the judgment of VA, his service-connected disabilities render him unemployable. Upon review of the evidence, the Board finds little doubt that the Veteran is rendered unemployable due to his service-connected disabilities. His inability to sit or stand for longer periods of time, combined with his reliance upon a walker to ambulate, and the strong prescription pain medication he takes all add up to the nearly foregone conclusion that the Veteran is unemployable, without consideration of his age or other nonservice-connected disabilities. A TDIU is therefore granted for the entire period of time encompassed by this appeal. Rice. Duties to notify and assist Given the results reached above, very little exposition of the VA's duties to notify and assist the Veteran in substantiating his claim is required, other than to note that he was indeed provided with the relevant information and notification, and that adequate information has been obtained to support the decisions reached above. One point is noteworthy, however. One of the VA's duties to appellants generally is that of providing quality medical examinations in cases involving medical issues. Although the Veteran was provided with a VA examination in 2010, the examination does not appear to have met a basic standard of care for such examinations. The Veteran's hearing testimony as to the embarrassment he experienced during the examination of his hips and back was eloquent and credible. We are genuinely sorry that he underwent such an experience under the auspices of the VA. ORDER A 70 percent disability rating for avascular necrosis of the left hip with degenerative arthritis, post-surgical hip replacement up to April 2013 is granted, subject to the laws and regulations governing the award of monetary benefits. After one year post-surgery, during which time a 100 percent disability rating is required; a 90 percent disability rating for avascular necrosis of the left hip with degenerative arthritis, post-surgical hip replacement and revision of the prosthesis, is granted, subject to the laws and regulations governing the award of monetary benefits. A total disability rating based upon individual unemployability due to service connected disabilities is granted, subject to the laws and regulations governing the award of monetary benefits. REMAND Upon review, the Board finds there simply is not adequate information upon which to base an informed decision as to the most appropriate disability ratings for the Veteran's right hip and low back disabilities during the time frame at issue. Perhaps most importantly, although the Veteran has indicated that he receives VA treatment for these disabilities, the most recent VA treatment records available to adjudicators are dated in 2010. VA records are deemed to be constructively of record in proceedings before the ROs and the Board. Bell v. Derwinski, 2 Vet. App. 611 (1992). Therefore, these records should be obtained prior to further review. The Veteran must be afforded an appropriate VA examination to ascertain the current functional impairment resulting from his service-connected right hip and low back disabilities. IF the Veteran is wholly satisfied with the grants reached above, and wishes to withdraw his appeals as to the disability ratings assigned to his right hip and low back, he may do so by contacting the RO. If he wishes to continue pursuing higher ratings, no action on his part is required. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The RO should obtain complete records reflecting VA medical care provided to the Veteran from April 2010 to the present by the Brooksville Community Based Outpatient Clinic and all related VA medical facilities. 2. The veteran should be afforded a VA orthopedic examination, by a physician who has not previously examined the Veteran, to identify all functional impairment involving the Veteran's right hip and low back. The claims folder should be made available to the examiner for review before the examination. All tests and studies deemed helpful by the examiner should be conducted in conjunction with the examination. The complete rationale for all opinions expressed should be fully explained. 3. After the development requested above has been completed, the RO should again review the record. If either benefit sought on appeal remains denied, the Veteran and his representative, should he choose to designate one, should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2013). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs