Citation Nr: 1616370 Decision Date: 04/25/16 Archive Date: 05/04/16 DOCKET NO. 10-15 794 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an initial rating greater than 10 percent for degenerative changes of the right hip. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD V. Chiappetta, Counsel INTRODUCTION The Veteran served on active duty from November 1990 to April 1991, from May 2007 to June 2008, from September 2010 to September 2013, and from November 2015 to the present day. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In that decision, the RO awarded service connection for degenerative changes of the right hip, and assigned a 10 percent initial rating. The Veteran disagreed with the assigned initial rating and perfected this appeal. The Veteran's return to active duty during the pendency of this appeal has not altered the legal rights and responsibilities of the Veteran or VA with respect to his pending claim for benefits. See VAOGCPREC 10-04. In December 2014, the Board remanded the Veteran's service-connection claims for left knee and left ankle disabilities, which the Agency of Original Jurisdiction (AOJ) subsequently granted in a February 2015 rating decision. Accordingly, those issues are no longer in appellate status. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). FINDING OF FACT For the entire rating period, the Veteran's degenerative changes of the right hip has been manifested in painful and limited motion to no worse than to 120 degrees of flexion, 20 degrees of extension, 40 degrees of abduction, 20 degrees of adduction, 45 degrees external rotation, and 35 degrees of internal rotation. Range of motion and joint function was not additionally limited by pain, fatigue, weakness, or lack of endurance on repetitive use. CONCLUSION OF LAW For the entire rating period, the criteria for an increased rating in excess of 10 percent for degenerative changes of the right hip have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5251, 5252, 5253 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. § 3.159 (2015). Concerning VA's duty to notify, in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. See Dingess v. Nicholson, 19 Vet. App. 473 (2006), 19 Vet. App. at 490-91; see also VAOPGCPREC 8- 2003 (December 22, 2003). Thus, because service connection for the Veteran's right hip disability has already been granted, VA's VCAA notice obligations with respect to the issue of entitlement to a higher initial evaluation for this disability are fully satisfied, and any defect in the notice is not prejudicial. Concerning VA's duty to assist, VA has obtained the Veteran's available service treatment records, service personnel records, all identified post-service VA and private treatment records, and his lay statements of argument. The Board notes that the Veteran's service treatment records from his period of active service from May 2007 to June 2008 are incomplete, and only his June 5, 2008 Post-Deployment Health Assessment is of record. In a February 2009 memorandum, VA made a formal finding that the Veteran's remaining service treatment records were unavailable. In cases where service treatment records are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of- the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board's analysis of the Veteran's right claim has been undertaken with these heightened duties in mind. The Board is also aware the Veteran is currently serving on active duty, and that any service treatment records that might exist pertaining to his present period of service have not been obtained. Such records are not necessary at this time, as the Veteran is ineligible for compensation awards from VA during his period of active duty. Indeed, the key question at issue in this case is whether a rating greater than 10 percent may be awarded for all periods that service-connection is in effect outside of the Veteran's periods active duty-namely, from June 2008 to September 2010, and from September 2013 to November 2015. As such, VA is not required to request current service treatment records at this time. The Veteran has been afforded VA examinations in August 2008 and February 2015 to assess the nature and severity of the Veteran's right hip disability. The Board observes that the findings contained within the corresponding examination reports are adequate for adjudicatory purposes. The respective examiners were aware of the Veteran's pertinent medical history, to include the Veteran's own descriptions of observable symptomatology, and rendered appropriate findings-to include range of motion findings-sufficient for the Board to make a fully informed decision on the merits. The Board accordingly finds that VA's duty to assist with respect to obtaining examinations or opinions addressing the severity of the Veteran's right hip disability has been met. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303 (2007). In short, the Board has carefully considered the provisions of the VCAA, in light of the record on appeal and, for the reasons expressed above, finds that the development of the appeal decided on the merits below has been consistent with said provisions. Analysis Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2015). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, separate evaluations for separate and distinct symptomatology may be assigned where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Additionally, if two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). "Staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). As discussed in the analysis below, the severity of the Veteran's right hip degenerative changes has not significantly changed, and a uniform evaluation is warranted for the period of the appeal. The Board notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups. See 38 C.F.R. §§ 4.40, 4.45 (2015); DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). As noted in the Introduction above, the RO awarded the Veteran service connection for degenerative changes of the right hip in a February 2009 rating decision, and assigned an initial 10 percent disability rating, effective June 15, 2008. The Veteran disagreed with this assigned initial rating and perfected this appeal. During the appeal period, service-connection was temporarily discontinued on two occasions due to the Veteran's return to active duty-from September 7, 2010 to September 5, 2013, and from November 28, 2015 to the present day. For all times in between his active duty periods of service, the Veteran's hip has been rated 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5003-5252. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. In this case, the first hyphenated code (5003) may be read to indicate that degenerative arthritis is the service-connected disorder, and it is rated as if the residual disability is limitation of flexion of the thigh under Diagnostic Code 5252. Arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71, Diagnostic Codes 5003, 5010 (2015). When limitation of motion is noncompensable under the appropriate diagnostic codes, a 10 percent rating is warranted for objectively confirmed limitation of motion. See 38 C.F.R. § 4.59 (recognizing painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint); see also Diagnostic Code 5003. In this case, the Veteran's 10 percent rating was originally assigned based on a finding of painful or limited motion of a major joint that was noncompensable under the hip and thigh diagnostic codes. The key question at issue is whether a rating higher than 10 percent may be awarded for the Veteran's service-connected hip disability. Diagnostic Codes 5250 through 5255 address disabilities of the hip and thigh, and are potentially applicable. At the outset, the Board notes that Diagnostic Codes 5250 (ankylosis of the hip); 5254 (flail joint of the hip); and 5255 (for impairments of the femur, to include fracture residuals) are not for application. Indeed, as discussed below, the Veteran's right hip is not ankylosed, nor does the evidence demonstrate that he has flail joint of the hip or any prior femur fracture or femur impairment resulting in malunion or nonunion of the femur. As such, the Board's focus will be on those Diagnostic Codes that specifically address limitation of motion. Under Diagnostic Code 5251, which addresses extension, a 10 percent rating is warranted when thigh extension is limited to 5 degrees. 38 C.F.R. § 4.71(a), Diagnostic Code 5251. Under Diagnostic Code 5252, which addresses flexion, a 10 percent rating is assigned when thigh flexion is limited to 45 degrees, a 20 percent rating is assigned when flexion is limited to 30 degrees, a 30 percent rating is assigned when flexion is limited to 20 degrees, and a 40 percent rating is assigned when flexion is limited to 10 degrees. 38 C.F.R. § 4.71(a), Diagnostic Code 5252. Diagnostic Code 5253 addresses limitations on abduction and adduction of the hip. Under Diagnostic Code 5253, a 20 percent rating is warranted for limitation of abduction of the thigh with motion lost beyond 10 degrees, a 10 percent rating is warranted for limitation of adduction with the inability to cross legs, and a 10 percent rating is warranted for limitation of rotation with the inability to toe-out more than 15 degrees in the affected leg. 38 C.F.R. § 4.71(a), Diagnostic Code 5253. Before addressing the evidence of record, the Board wishes to acknowledge that, in a February 2015 rating decision, the RO awarded separate noncompensable (zero percent) disability ratings for impairment of the right thigh and limitation of extension of the right thigh under Diagnostic Codes 5251 and 5253 respectively. As such, the Board will include in this decision discussion as to whether separate compensable disability ratings may be awarded under these Diagnostic Codes in addition to his established 10 percent rating under Diagnostic Code 5252. Upon examination in August 2008, the Veteran complained of right hip pain with and without weight bearing. He demonstrated the ability to flex his hip from 0 to 125 degrees, to extend from 0 to 30 degrees, to abduct from 0 to 45 degrees and to adduct from 0 to 25 degrees, all without pain or additional limitation of motion on repetitive use. He complained of no stiffness, weakness, episodes of dislocation or subluxation, locking or effusion, and indicated that although he experiences flare ups of pain, the flares do not cause any limitation of motion with the flares. The Veteran's treatment records following this August 2008 report show continued complains of right hip pain, to include treatment for right hip bursitis during his period of active service in January 2013. See the Veteran's January 16, 2013 Chronological Record of Medical Care. On October 22, 2014, the Veteran sought treatment with VA for bilateral hip pain, noting that his right leg "went out" a few weeks prior. He was assessed as having "hip pain" and was offered physical therapy, and advised on lower impact activities, good footwear, and weight management. A December 24, 2014 VA treatment note indicates an assessment of right trochanter pain syndrome. The Veteran discussed having pain ranked 4 out of 10 during flares, without radiation into his lower extremities. He exhibited no sensory impairment, and was treated with a hip injection for pain. In February 2015, the Veteran appeared for another VA examination of his hip. At that time, the Veteran reported that flare-ups of pain did not impact the function of his hip. Range of motion testing of the right hip showed that the Veteran was able to flex his hip from 0 to 120 degrees, extend from 0 to 20 degrees, abduct from 0 to 40 degrees, and adduct from 0 to 20 degrees. He was able to cross his legs, and showed external rotation from 0 to 45 degrees, and internal rotation from 0 to 35 degrees. Pain was observed upon testing, but the VA examiner specifically noted that the pain did not result in or cause functional loss. The Veteran was able to perform repetitive use testing with at least three repetitions without any additional loss of function or range of motion. The Veteran exhibited full muscle strength, with no reductions, had no muscle atrophy, or ankylosis. He uses no assistive devices, and the VA examiner indicated that the Veteran's hip disability did not impact his ability to perform any type of occupational task. At no point during the period under review has the Veteran exhibited limitation of flexion of the hip to 30 degrees or limitation of extension to 5 degrees, before or after repetitive use. As such, neither a rating greater than 10 percent under Diagnostic Code 5252 for limitation for flexion, nor a compensable rating under Diagnostic Code 5251 for limitation of flexion are warranted. Similarly, throughout the appeal period the Veteran has not exhibited limitations of abduction or adduction such that he has loss of motion beyond 10 degrees or an inability to cross his legs. Further, the Veteran does not have limitation of rotation such that he cannot toe-out more than 15 degrees on the right leg. Accordingly, a compensable rating for impairment of the thigh under Diagnostic Code 5253 is also not warranted. The Board has considered the provisions of 38 C.F.R. §§ 4.40, 4.45, and the holdings in DeLuca. However, an increased evaluation for the Veteran's right hip disability is not warranted on the basis of functional loss due to pain or weakness in this case. The Board recognizes, and in no way disputes, that the Veteran has experienced ongoing and continuous right hip pain throughout the appeal period. The Veteran is competent to attest to his own observable symptoms, and the medical records showing treatment for hip pain are consistent with the Veteran's own lay statements. Indeed, even assuming that the Veteran experiences continuous right hip pain there is no evidence of record contradicting the objective range of motion findings of the VA examiners listed above. Importantly, the Veteran has not described limitation of motion in terms of specific degrees. On VA examination in 2008, he denied additional motion loss during flares. Both VA examiners determined that even upon repetitive use testing, the Veteran was able to achieve ranges of motion well above the minimum requirements for the assignment of a rating greater than 10 percent under Diagnostic Code 5252, or the assignment of separate compensable ratings Diagnostic Codes 5251 and 5253. The Board has reviewed the Veteran's service treatment records and VA treatment records dated during the period under review, and observes no other range of motion assessments other than those made at the VA examinations listed above. The Board finds that the Veteran's competent and credible complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant increased, or separately compensable evaluations. Indeed, the Board has considered the Veteran's assertions as to the severity of his symptoms including his one report of right leg give-way; however, the most recent examination additionally showed full muscle strength absent muscle atrophy or reductions. The Board finds the objective medical evidence described above to be more probative than his lay description of symptomatology in determining that his right hip disability does not meet the criteria for a rating in excess of 10 percent. Extraschedular consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the claimant's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director, Compensation Service to determine whether an extraschedular rating is warranted. In this case, the discussion above reflects that the symptomatology associated with the Veteran's service-connected degenerative changes of the right hip-i.e. pain and limitation of motion-is fully contemplated by the rating criteria used to assign disability evaluations (to include the rating provisions outlined in 38 C.F.R. §§ 4.40, 4.45 and 4.59), and there is no characteristic or manifestation shown that is outside the purview of the applicable rating criteria or is so exceptional as to render the criteria inapplicable. All potentially relevant rating codes have been considered and evaluated. Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is therefore not required. Referral for consideration of an extraschedular rating for the disability on appeal is not warranted. 38 C.F.R. § 3.321(b)(1). Additionally, the Veteran has not alleged or indicated that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). Nonetheless, the Board has fully considered the Veteran's additional service-connected disabilities in concluding that referral for consideration of an extraschedular rating is not warranted. For the foregoing reasons, the Board concludes that there is no basis for staged ratings of the Veteran's degenerative changes of the right hip, as his symptoms have been shown to be primarily the same throughout the appeal period. In this regard, the Board finds that a rating greater than 10 percent is not warranted. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to an initial rating in excess of 10 percent for degenerative changes of the right hip is denied. ____________________________________________ T. MAINELLI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs