Citation Nr: 1603952 Decision Date: 02/03/16 Archive Date: 02/11/16 DOCKET NO. 13-20 508 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for limitation of flexion of the right thigh. 2. Entitlement to a disability rating in excess of 10 percent for limitation of extension of the right thigh to include a compensable rating earlier than February 10, 2015. 3. Entitlement to a compensable rating for impairment of the right thigh. REPRESENTATION Veteran represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD David R. Seaton, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1987 to May 1991. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. Jurisdiction was subsequently transferred to the RO in Madison, Wisconsin. The matter was then subsequently considered by the Board, and, in an August 2015 Board decision, the case was remanded to obtain outstanding treatment records. The Board's order was fully complied with, and as such there is no prejudice for the Board to proceed. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The weight of the evidence indicates that the flexion of the Veteran's right thigh is functionally limited to at most 120 degrees. 2. The weight of the evidence indicates that the extension of the Veteran's right thigh is functionally limited to at most five degrees. 3. The weight of the evidence does not indicate that the Veteran's abduction is so functionally limited that motion is lost beyond 10 degrees or that he cannot cross his legs; nor does the weight of the evidence indicate that his rotation is limited such that he cannot toe-out more than 15 degrees. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 10 percent for limitation of flexion of the right thigh have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, Diagnostic Code 5252 (2015). 2. The criteria for entitlement to a disability rating in excess of 10 percent for limitation of extension of the right thigh to include a compensable rating earlier than February 10, 2015 have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, Diagnostic Code 5251 (2015). 3. The criteria for entitlement to compensable disability rating for impairment of the right thigh have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, Diagnostic Code 5253 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was provided, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of his claim at this time is warranted. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records and VA treatment records been obtained. The Veteran was also informed of VA's obligation to obtain any pertinent private treatment records, but the Veteran did not indicate any private treatment records that needed to be obtained. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Additionally, the Veteran was offered the opportunity to testify at a hearing before the Board, but he declined. The Veteran was also provided with several VA examinations (the reports of which have been associated with the claims file), which the Board finds to be adequate for rating purposes, as the examiners had a full and accurate knowledge of the Veteran's disability and contentions, and were provided sufficient evidence to fairly rate his disability. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Moreover, neither the Veteran nor his representative has objected to the adequacy of any of the examinations conducted during this appeal. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). There is no prejudice to the Veteran in adjudicating this appeal, because VA's duties to notify and assist have been met. Increased Rating The Veteran alleges that he is entitled to a disability rating in excess of 10 percent for limitation of flexion of the right thigh; a disability rating in excess of 10 percent for limitation of extension of the right thigh; and a compensable rating for impairment of the right thigh. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran first filed for service connection for rheumatoid arthritis in May 1991 while he was still serving on active duty, and, in June 1991, the RO granted service connection and assigned a 60 percent disability rating effective the day after the Veteran was discharged from the service. Subsequently, the Veteran's disability rating was reduced to 20 percent, but, in February 1998, the RO discontinued the Veteran's single award for rheumatoid arthritis in order to provide awards for each joint separately. As a result, the Veteran was granted service connection for a number of disabilities associated with major joints including limitation of flexion of the right thigh (characterized as seronegative spondyloarthropathy, right hip at the time) and assigned a disability rating of 10 percent. In December 2009, the Veteran submitted a claim to increase his disability rating for his right thigh disability. In April 2013, the RO continued the Veteran's disability rating of 10 percent for limitation of flexion of the right thigh, and the Veteran filed a notice of disagreement. The RO, once again, continued the Veteran's 10 percent disability rating for limitation of flexion of the right thigh in a June 2013 statement of the case (SOC). Additionally, the RO granted service connection for two additional right thigh disabilities, limitation of extension of the right thigh and impairment of the right thigh, in a June 2013 rating decision and assigned noncompensable rating for both disabilities in a separate rating decision that same month. In October 2015, the Veteran's 10 percent disability rating for limitation of flexion of the right thigh and noncompensable rating for impairment of the right thigh were continued, and limitation of extension of the right thigh was increased to 10 percent as of February 10, 2015. Right Thigh: Flexion The Veteran contends that he is entitled to a disability rating in excess of 10 percent for limitation of flexion of the right thigh. As will be explained infra however, the weight of the evidence fails to show that the Veteran's flexion is sufficiently limited to warrant an increased rating under this criteria. The RO assigned the Veteran a disability rating of 10 percent for limitation of flexion of the right thigh pursuant to Diagnostic Code 5252. Under Diagnostic Code 5252, a 10 percent disability rating is assigned when flexion is limited to 45 degrees, and a 20 percent disability rating is assigned when flexion is limited to 30 degrees. Additionally, a 30 percent disability rating is assigned when flexion is limited to 20 degrees, and a 40 percent disability rating is assigned when flexion is limited to 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5252. A February 2010 primary care letter indicated that an X-ray of the Veteran's hips showed degenerative arthritis. The Veteran was examined at a VA facility in March 2010, at which time he reported experiencing pain in his hips all day, every day, flaring 4 times a week lasting all day and he asserted that he was unable to do any activities. The Veteran did not report using assistive devices such as a brace, cane, or crutch. The Veteran indicated that he was taking prioxicam and Tylenol. The examiner made the following range of motion measurements with regard to the Veteran's right thigh: flexion to 90 degrees; extension to 25 degrees; abduction to 30 degrees; internal rotation to 30 degrees; and external rotation to 40 degrees. Additionally, there was no functional limitation to the Veteran's range of motion based pain, fatigue, weakness, or lack of endurance following repetitive use. A September 2010 VA treatment record indicated that the Veteran had chronic right hip pain that had gotten worse over the course of three weeks, and that walking down steps was severely painful. The Veteran reported that the pain had made it difficult for him to sleep, and that the he could not stand for long periods of time. The Veteran further indicated that he had been unable to leave his house for three days due to the pain in his right hip. From September 2011 to November 2014 the Veteran sought treatment at a rheumatology clinic. Hip pain was a one of many chronic symptoms. Treatment records, however, do not reveal any additional range of motion testing being conducted. In February 2015, the Veteran was once again examined at a VA facility. The Veteran reported bilateral hip pain. The Veteran also indicated that he would need to change positions at night when sleeping on his side and experienced a sharp hip pain when stepping down while walking. Additionally, the Veteran indicated that a few days per month it would be too painful to walk. Furthermore, the Veteran claimed that when he was able to walk he had to rest after 10 minutes. Finally, the Veteran reported occasionally using a cane. The examiner measured the following ranges of motions: flexion was to 120 degrees; extension was to five degrees; abduction was to 25 degrees; adduction was to 15 degrees; external rotation was to 25 degrees; internal rotation was to 20 degrees; and the Veteran could cross his legs. Pain sufficient to cause functional loss was noted, and pain was observed with weight bearing, but there was not additional loss of function or range of motion after three repetitions. After fully and fairly considering this evidence, the Board finds that the weight of the evidence is against a finding that a rating in excess of 10 percent is warranted for limitation of flexion of the right thigh. As previously noted, in order to qualify for a disability rating in excess of 10 percent the Veteran's flexion must be limited to no greater than 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5252. During the period on appeal the Veteran's flexion has been measured as being limited to 90 degrees (March 2010) and to 120 degrees (February 2015). Even giving the Veteran the benefit of the doubt and using the most restricted measurement, the flexion of the right thigh greatly exceeds the 30 degree limitation required for a rating in excess of 10 percent. Accordingly, the Veteran does not meet the rating criteria for a disability rating in excess of 10 percent based on limitation of flexion of the right thigh. 38 C.F.R. § 4.71a, Diagnostic Code 5252. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. § 4.45. Even if range of motion was slightly limited by pain however, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id. Here, the March 2010 examiner indicated that Veteran's range of motion did not decrease as a result of pain, fatigue, weakness, or lack of endurance following repetitive use, and the February 2015 examiner did not observe the Veteran's range of motion decrease as a result of pain, fatigue, weakness, or lack of endurance following repetitive use during the examination. There is no dispute that the Veteran's hip is painful, but on physical examination the hip has not been shown to be so functionally limited by the pain as to be restricted to a compensable level. Of note, the Veteran has been assigned a compensable rating for limitation of flexion based specifically on a finding of painful motion. As described, the weight of the evidence indicates that the Veteran is not experiencing a functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. See DeLuca; see also Mitchell. Here, the weight of the evidence simply fails to demonstrate that the Veteran is entitled to a disability rating in excess of 10 percent for limitation of flexion of the right thigh, and the claim is denied. Right Thigh: Extension The Veteran also alleges that he is entitled to a disability rating in excess of his current staged disability rating of 10 percent as of February 10, 2015 and a noncompensable prior to February 10, 2015, pursuant to Diagnostic Code 5251. Under Diagnostic Code 5251, a 10 percent disability rating is assigned when extension of the right thigh is limited to five degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5251. The weight of the evidence indicates that, prior to February 10, 2015, the Veteran's extension of the right thigh was never measured as being restricted to five degrees. The Board notes that the Veteran has continuously reported pain, but his range of motion was never found to be functionally limited due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness, such that the extension was effectively limited to 5 degrees. See DeLuca; see also Mitchell. Accordingly the Veteran is not entitled to a compensable disability rating prior to February 10, 2015. 38 C.F.R. § 4.71a, Diagnostic Code 5251. Moreover, as noted above, the Veteran is receiving a compensable rating based on painful motion already, and cannot receive two such ratings for the same joint. As of February 10, 2015, the Veteran has been assigned a 10 percent rating for limitation of extension of the right thigh, which represents the maximum schedular disability rating for limitation of extension of the right thigh. 38 C.F.R. § 4.71a, Diagnostic Code 5251. As such, the Veteran is not entitled to a schedular disability rating in excess of 10 percent at any time for limitation of extension. Accordingly, entitlement to a disability rating in excess of the Veteran's current staged disability rating for limitation of extension of the right thigh is denied. Right Thigh: Impairment The Veteran also contends that he is entitled to a compensable rating for impairment of the right thigh. The RO assigned the Veteran a noncompensable disability rating pursuant to Diagnostic Code 5253. Under Diagnostic Code 5253, a 10 percent rating is assigned when rotation is limited to the extent that the Veteran cannot toe-out more than 15 degrees or adduction is limited to the extent that the legs cannot be crossed, and a 20 percent rating is assigned when abduction of motion is lost beyond 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5253. The March 2010 and February 2015 VA examination reports show that the Veteran's abduction was to 30 degrees and to 25 degrees respectively. Additionally, the examiner at the February 2015 VA examination noted that the Veteran could cross his legs. Nothing in the record indicates that the Veteran is unable to toe-out to 15 degrees. Finally, the Board once again notes that the Veteran has continuously reported pain, but his range of motion was never found to be functionally limited due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. See DeLuca; see also Mitchell. As such, entitlement to a compensable disability rating for limitation of the right thigh is denied. 38 C.F.R. § 4.71a, Diagnostic Code 5253. Extraschedular The Board has also considered whether referral for an extraschedular evaluation is warranted. In exceptional cases, an extraschedular rating may be provided. See 38 C.F.R. § 3.321; see also Rice v. Shinseki, 22 Vet. App. 447 (2009). 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. See 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, 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. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairments for the Veteran's right thigh disabilities are specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular criteria applicable to the Veteran's right thigh disabilities provide for compensable ratings based on limitation of motion. The Veteran is claiming that he is entitled to a higher disability rating due to his limited range of motion and pain. The Board, therefore, finds that his right thigh symptomology and impairments are more than contemplated by the schedular criteria. In reaching this conclusion, the Board acknowledges certain complaints the Veteran has voiced regarding limitation caused by his hips, such as trouble sleeping, or difficulty walking. However, these complaints do not identify separate symptoms, but effectively describe the impact of the right hip pain. However, pain is specifically being considered, and as discussed above, pain serves as the basis of one of the Veteran's compensable right hip ratings. Additionally, because the Diagnostic Codes used to evaluate right thigh disabilities require the Board to consider all of the Veteran's symptoms in determining whether the range of motion is functionally limited, the Board is essentially tasked with considering of all of the Veteran's right thigh related symptoms within the parameters of the schedular rating that is assigned. The Board acknowledges the fact that the Veteran wears assistive devices as a result of his right thigh disabilities. The use of these assistive devices, however, does not make the Veteran's right thigh disabilities unique or unusual, and their use alone does not mean the schedular rating criteria do not adequately describe the symptoms of the Veteran's service connected disabilities, so as to trigger referral for extraschedular consideration. First, the use of an assistive device is not unexpected when a person experiences significant pain in the right thigh. That is, it is not a unique or unusual result of lower extremity disabilities. Second, the use of an assistive device is not a "symptom" of the Veteran's disability; rather, it is the result of symptoms such as pain and limitation of motion. In other words, the Veteran uses assistive devices because of pain in his hip, but pain is a symptom that the Board considers when determining functional loss leading to the limited range of the motion or severity of the injury contemplated by the schedular rating criteria. Accordingly, the Board finds that the Veteran's disability picture is adequately anticipated by the schedular rating criteria for the disabilities on appeal, and, therefore, the Veteran is not entitled to consideration of extraschedular rating criteria by the Under Secretary for Benefits or the Director, Compensation and Pension Service. The Board has a duty to consider whether a claim for a total disability rating based on individual unemployability (TDIU) is implicitly raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board notes that the Veteran previously asserted that he was entitled to TDIU in March 2010. Nevertheless, the Veteran explicitly withdrew this claim in June 2010 and he has not since reasserted that he cannot work on account of his right hip. Accordingly, the Board finds that TDIU is not implicitly raised by the record. Id. ORDER A disability rating in excess of 10 percent for limitation of flexion of the right thigh is denied. A disability rating in excess of 10 percent for limitation of extension of the right thigh to include a compensable rating earlier than February 10, 2015 is denied. A compensable rating for impairment of the right thigh is denied. ____________________________________________ MATHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs