Citation Nr: 1625370 Decision Date: 06/23/16 Archive Date: 07/11/16 DOCKET NO. 09-40 154 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a low back disability. 2. Entitlement to an increased rating for bilateral hip arthritis in excess of 10 percent prior to March 26, 2009, and as of July 1, 2009. 3. Entitlement to a total disability rating for compensation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. M. Gillett, Counsel INTRODUCTION The Veteran had active service from March 1970 to March 1974, and from February 1977 to April 1993. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In January 2012, the Veteran testified at a hearing before a Veterans Law Judge at the RO. A transcript of that hearing is of record. The Veterans Law Judge who presided at the January 2012 Travel Board hearing is no longer with the Board. In a February 2016 letter, VA advised the Veteran of his right to testify at a hearing before a different Veterans Law Judge who would decide the claims. 38 C.F.R. § 20.717 (2015). The letter advised the Veteran that if he did not reply within 30 days of the date of the letter, the Board would assume that the Veteran did not wish to attend another hearing. The Veteran has not responded. The issues of entitlement to service connection for gout and sciatica have been raised by the record in a November 2013 statement, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over those issues, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). The issues of whether new and material evidence has been received to reopen a claim of entitlement to service connection for a low back disability and entitlement to TDIU are REMANDED to the AOJ. FINDINGS OF FACT 1. Prior to March 26, 2009, and as of July 1, 2009, left hip arthritis was characterized by pain resulting in a noncompensable limitation of motion. 2. Prior to March 26, 2009, and as of July 1, 2009, right hip arthritis was characterized by pain resulting in a noncompensable limitation of motion. CONCLUSIONS OF LAW 1. Prior to March 26, 2009, and as of July 1, 2009, the criteria for a separate rating of 10 percent, but no greater, for a left hip arthritis disability have been met, in place of the single 10 percent rating for bilateral hip arthritis previously assigned. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.40-4.46, 4.71a, Diagnostic Code 5003 (2015). 2. Prior to March 26, 2009, and as of July 1, 2009, the criteria for a separate rating of 10 percent, but no greater, for a right hip arthritis disability have been met, in place of the single 10 percent rating for bilateral hip arthritis previously assigned. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.40-4.46, 4.71a, Diagnostic Code 5003 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 3.159 (2015); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from any notice error. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication, and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in a letter dated in July 2006 of the requirements for substantiating a claim. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing an error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The required notice was provided prior to the initial adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Importantly, the Board notes that the Veteran is represented in this appeal. Overton v. Nicholson, 20 Vet. App. 427 (2006). The Veteran has submitted argument in support of the appeal. Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of the claim such that the essential fairness of the adjudication is not affected. The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained two VA medical examination reports, dated in December 2008 and July 2013 respectively, and a January 2014 addendum opinion with respect to the claim on appeal. In a June 2009 written statement, the Veteran suggested that the December 2008 VA medical examination was inadequate, because the examiner was a warrant officer and not a doctor of orthopedics. In a March 2014 written statement, the Veteran suggested that the July 2013 VA medical examination and January 2014 addendum opinion were also inadequate, because they were written by the same examiner who had performed the previous examination and the examiner was "not even a medical doctor." The Veteran specifically stated that the examiner's findings were inadequate as they consisted solely of range of motion findings. The Veteran also stated that, in the December 2008 VA medical examination report, the examiner had indicated that there was no increase in arthritis. The Veteran stated that a private examiner examined his left hip a few months later and recommended that he undergo surgery for an uncorrectable arthritic problem. The Veteran stated that the VA examiner's findings therefore should be considered products of error. There is a presumption of regularity which holds that government officials are presumed to have properly discharged their official duties. Ashley v. Derwinski, 2 Vet. App. 307 (1992). The December 2008 and July 2013 VA medical examination reports, and the January 2014 addendum opinion were written by a doctor of osteopathic medicine who was fully qualified to perform the examinations. In the reports, the examiner provided thorough and objective examination results, to include range of motion findings, to allow VA to rate the Veteran's disability. The Board finds that the Veteran's allegations, suggesting that the VA examiner wrote the examination results so as to minimize the severity of the service-connected disability, are inconsistent with the probative findings contained in the examination report and are not sufficient to overcome the presumption of regularity applying to government officials. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997) (Board has the duty to assess the credibility and weight to be given to the evidence); Ashley v. Derwinski, 2 Vet. App. 307 (1992). Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In April 2008, the Veteran filed a claim for an increased rating in excess of the 10 percent rating then assigned for service-connected bilateral hip arthritis. A September 2009 rating decision assigned a temporary total 100 percent rating for the bilateral hip disability for convalescence following left hip surgery, lasting from the date of the surgery, March 26, 2009, until June 30, 2009. That decision continued the 10 percent rating for bilateral hip arthritis prior to March 26, 2009, and as of July 1, 2009. The Veteran has not challenged the assignment of the temporary total rating, but is seeking higher disability ratings for the other periods on appeal. Limitation of motion of the hip is rated under either Diagnostic Code 5251, 5252, or 5253. Under Diagnostic Code 5251, the criterion for a 10 percent rating, which is the maximum rating for limitation of extension, is extension limited to five degrees. Under Diagnostic Code 5252, the criterion for a 10 percent rating is flexion limited to 45 degrees. The criterion for the next higher rating, 20 percent, is flexion limited to 30 degrees. Under Diagnostic Code 5253, the criterion for a 10 percent rating is the inability to cross the legs or external rotation limited to 15 degrees. The criterion for the next higher rating, 20 percent, is abduction limited to 10 degrees. 38 C.F.R. § 4.71a (2015). Normal extension of the hip is to 0 degrees and normal flexion is to 125 degrees. Normal abduction is to 45 degrees. 38 C.F.R. § 4.71a, Plate II (2015). Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate codes for the specific joint or joints involved. If the limitation of motion is non-compensable, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Ratings under Diagnostic Code 5003 cannot be combined with ratings based on limitation of motion of the same joint. 38 C.F.R. § 4.71a (2015). In the absence of limitation of motion, a 20 percent rating is merited for X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. A 10 percent rating is merited for X-ray evidence of involvement of two or more major joints or two or more minor joint groups. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2015). Functional loss may be due to pain, supported by adequate pathology, and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.59 (2015). The factors of joint disability include increased or limited motion, weakness, fatigability, painful movement, swelling, deformity, or disuse atrophy. 38 C.F.R. § 4.45 (2015). Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 (2015) must be considered. DeLuca v. Brown, 8 Vet. App. 202 (1995). A finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80 (1997). The intent of the Rating Schedule is to recognize actually painful, unstable, or malaligned joints as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2015); Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board has considered all evidence of record as it bears on the issue before it. 38 U.S.C.A. §§ 5107(b), 7104(a) (West 2014). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all evidence of record. The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the appeal. The service medical records indicate a diagnosis of bilateral trochanteric bursitis in May 1987, and subsequent diagnosis and injection treatment for left trochanteric bursitis in February 1989. In a November 1992 report of medical history prior to discharge, the Veteran stated that he had problems in his hips and left leg after prolonged standing or sitting. The Veteran further stated that he had received numerous cortisone shots in both shoulders and hips. An examiner wrote that the Veteran had bilateral bursitis by history. In a contemporaneous November 1992 service separation medical examination report, a service examiner noted that the Veteran's lower extremities and musculoskeletal systems were normal. In a July 2008 private bilateral hip X-ray report, a private examiner noted finding no fracture or subluxation, and mild degenerative changes in the hips. In a July 2008 private MRI reports of the right and left hips, a private examiner indicated that the hip joints demonstrated mild osteoarthritis, but were otherwise unremarkable. In a December 2008 VA medical examination report, the Veteran stated that he had retired from his position as a real estate agent in November 2006. The Veteran stated that his hip problems caused him to be incapacitated once per month for a couple of days or up to a week, but did not report the reason for the incapacity. The Veteran also reported having difficulty getting his shoes on every day. The Veteran stated that, on a typical day, he engaged in 30 to 40 minutes of aerobic exercise, performed some cleaning and maintenance around the house, and visited with friends. The Veteran indicated that he was experiencing greater symptoms in his hips than during the last examination that occurred years ago. The Veteran stated that his symptoms consisted of pain at times, which worsened with walking, and tightening while sitting. The Veteran stated that he could no longer use a treadmill, and had difficulty with stairs and ladders. The Veteran described his hip pain as a two to four on a scale of ten. He indicated that the pain occurred several times per month, lasting for up to a week. The Veteran stated that flare-ups occurred up to two times per month, each lasting up to 24 hours. The Veteran reported that he experienced hip pain measuring a nine out of 10 during flare-ups, and that those occurrences could be aggravated by using stairs, and alleviated by medication and rest. On examination, the examiner indicated that the Veteran walked with an antalgic gait using a cane. The Veteran was able to flex the right hip to 40 degrees. Right hip abduction was to 42 degrees. Right hip external rotation was to 55 degrees and internal rotation was to 37 degrees. Right hip extension was to 40 degrees and adduction was to 35 degrees. The Veteran was able to flex the left hip to 60 degrees. Left hip abduction was to 45 degrees. Left hip external rotation was to 60 degrees and internal rotation was to 30 degrees. Left hip extension was to 30 degrees and adduction was to 45 degrees. The examiner noted that X-rays of the hips were normal bilaterally. The examiner diagnosed bilateral hip arthritis. In a January 2009 private treatment record, the Veteran reported experiencing bilateral hip pain, which had worsened over the previous six months. The Veteran stated that he was unable to walk long distances and that the pain was located in his groin. The Veteran stated that previous trochanteric injections had provided no relief. The examiner stated that there was limited range of motion bilaterally in all planes, especially in the groin with internal rotation. The examiner noted tenderness at the groin, greater trochanter, and limits of motion. The examiner found no evidence of instability. The examiner diagnosed possible avascular necrosis. In January 2009 private MRI reports, a private examiner found mild osteoarthritic changes in the both hip joints without fractures, bone marrow edema, significant effusion, or avascular necrosis. In a February 2009 private treatment record, the examiner stated that the January 2009 private MRI reports revealed impingement of the left hip with labral tear, and the mild osteoarthritic changes of the right hip without fracture or bone marrow edema. The examiner referred the Veteran to another examiner for a left hip arthroscopy. In a March 2009 private treatment record, the Veteran reported experiencing the onset of left-sided hip pain in the spring of 2008 without any antecedent trauma or injury. The Veteran indicated that the pain was on the lateral side of his left hip and towards his groin, and was worsened by pretty much all activity. The Veteran stated that he gotten to the point where he walked with a cane and experienced left hip pain with any activity. Upon examination, the Veteran ambulated with an antalgic gait using a cane in his left hand. Upon examination, the examiner noted full and painless motion of the right hip without evidence of impingement or trochanteric tenderness. The Veteran was able to flex the left hip to 100 degrees. Left hip abduction was to 45 degrees. Left hip external and internal rotation were limited to 25 degrees with pain. Left hip extension was to 30 degrees and adduction was to 45 degrees. The examiner noted a positive C sign, but no trochanteric tenderness. The impression was femoral acetabular impingement of the left hip and left hip labral tear. In an additional March 2009 private treatment record, written the same day, another examiner indicated that the Veteran had been diagnosed with femoral acetabular impingement and a labral tear of the left hip. The Veteran indicated that he wanted to inquire about the possibility of an arthroscopic procedure. The Veteran stated that he had experienced a catch in his hip for several years, but the pain had increased in the previous year or so. The Veteran stated that he had difficulty sitting and moving the hip, but no true night pain. The examiner reported finding a positive C sign on the left hip. The examiner also indicated that the Veteran experienced pain with both flexion and abduction, and had a positive FABER test, left greater than right. The examiner reported reviewing X-rays and finding a little prominence of the femoral neck, but no crossover sign. The examiner also reported reviewing the MRIs and detecting a little labral tear that was unremarkable. The impression was femoral acetabular impingement of the left hip, with symptomatic labral tear. Private treatment records indicate that the Veteran underwent several surgical procedures on the left hip on March 26, 2009, to specifically include a diagnostic and operative arthroscopy, a debridement of the anterosuperior labrum, and a femoral osteoplasty with debridement of a lateral acetabular spur. The examiner noted in the operative report that the Veteran's prognosis was excellent for diminished symptoms related to the labrum tear secondary to the femoroacetabular impingement of the left hip. The examiner also stated that the Veteran had similar problems on the right hip. In a June 2009 statement, the Veteran stated that he had to undergo physical therapy, medication, and injections for hip problems since approximately 2000. The Veteran indicated that the therapy for his hips only improved matters temporarily. He reported that his hip pain was a major contributor to his inability to work for the past couple of years. The Veteran stated that his disability had worsened since retirement in December 2006. The Veteran reported having to change his exercise routines over the years to maintain physical fitness. The Veteran said that the hip disability affected his sleep and daily living. The Veteran stated that he had problems using stairs, walking on inclines, getting into and out of vehicles, and sitting or standing for long periods. He also reported being unable to play with his grandchildren on the floor as he needed help to stand again. In a June 2009 private treatment record, the Veteran reported experiencing gradual onset of right hip pain over the previous one to two years, with worsening over the previous six to eight months. The Veteran stated that he had previously undergone a trochanteric injection procedure without relief. The Veteran stated that the pain was constant, severe, and throbbing in quality, localized at the groin. The examiner indicated that the Veteran had an antalgic gait, but moved with ease. On examination, the examiner reported no evidence of swelling, erythema, or ecchymosis. The examiner noted tenderness at the groin. The examiner stated that the angle of motion of the hip was moderately limited, with groin pain on internal rotation, and pain with maximum abduction, resisted flexion, resisted abduction, and resisted adduction. The examiner noted that the hip was stable. A right hip X-ray showed mild osteoarthritic changes. The examiner suggested an intraarticular steroid injection in the right hip which was performed a week after examination. In a July 2009 private treatment record, the Veteran stated that he had experienced pain in the right hip over the past one to two years, with worsening over the previous six to eight months. The Veteran stated that the intraarticular steroid injection had provided relief for about three weeks. The Veteran stated that the pain was constant, severe, and throbbing in quality, localized at the groin. On examination, the examiner noted findings identical to those in the June 2009 private treatment record. The Veteran indicated that the pain could be aggravated by weight bearing and prolonged ambulation. The examiner indicated that an X-ray showed mild degenerative joint disease changes of the right hip. The impression was a labral tear. In an August 2009 private treatment record, the Veteran reported doing well since the injection procedure. On examination, the examiner found no right hip symptomatology. In an October 2009 private treatment record, the Veteran stated that he was doing well since the left hip operation and only had occasional complaints of left hip pain. Regarding the right hip, the Veteran stated that it was stiff. He indicated that, after several minutes of walking, he started to walk with short, "baby" steps. The Veteran reported being worried that his right hip was becoming like his left. On examination, the examiner noted that the Veteran was able to flex the right hip to 90 degrees and displayed marked discomfort with internal rotation. The Veteran was able to flex the left hip to 100 degrees and displayed internal rotation of 20/20 with minimal discomfort. After an X-ray review, the examiner diagnosed a femoral acetabular impingement of the right hip, with early osteoarthritis, and status post satisfactory decompression of the left hip with occasional catching, possibly related to persistent pincer-type impingement. In an October 2009 written statement, the Veteran reported having chronic recurrent incapacitating exacerbations of the hips. The Veteran indicated that multiple X-ray and MRI reports showed involvement of two or more major joints. The Veteran wrote that the right hip would require similar surgery to that performed on the left hip. The Veteran also reported having signs of muscle atrophy in the hip region. The Veteran stated that he had moved to a single-level home without stairs due to the disability. He also indicated that he sometimes felt pain of such severity that he required assistance dressing and had to take small "shuffle steps" to go to the bathroom. The Veteran stated that he had to take anti-inflammatory medication every day to function. The Veteran wrote that, as his pain was constant, his arthritis debilitating, and he required pain medication for management, his disability met the criteria for at least a 20 percent rating. In a January 2010 private treatment record, the Veteran stated that he had experienced no major difficulties other than occasional catching in his left hip. The Veteran stated that he did not believe that he had torn the labrum in his right hip, but experienced some degree of aching pain. On examination, the examiner noted that the Veteran displayed normal ambulation, stance, and gait. The examiner noted that the Veteran was able to flex the right hip to 100 degrees and displayed discomfort with internal rotation. The examiner also indicated that the Veteran showed marked tightness in abduction and external rotation, and a normal leg roll. The Veteran was able to flex the left hip to 100 degrees, displayed internal rotation of 20/20 without difficulty, and showed a normal leg roll. After an X-ray review, the examiner diagnosed a femoral acetabular impingement of the right hip, with early osteoarthritis, and status post satisfactory decompression of the left hip with occasional catching, possibly related to persistent pincer-type impingement. In a March 2010 private treatment record, the Veteran reported experiencing multiple joint discomfort. On examination, the examiner noted full range of motion at all joints. In a subsequent March 2010 private treatment record, the same examiner diagnosed osteoarthritis and fibromyalgia. In a June 2010 decision, the Social Security Administration (SSA) determined that the Veteran was disabled primarily due to a low back disability and secondarily due to osteoarthritis. At the January 2012 Travel Board hearing, the Veteran reported having a slight deterioration in each hip related to arthritis. The Veteran stated that his biggest problem was a growth on the leg bone right at the hip bone at the hip socket, and bone spurs on the hip joint. The Veteran stated that those problems impinged on each other, resulting in pain which increased with movement. The Veteran reported that pain worsened throughout the day and sometimes caused him to fall due to pain. The Veteran indicated that the bone spur started to eat away at the labrum in the left hip, causing it to tear. The Veteran stated that he had experienced similar problems on the right side. The Veteran reported being unable to cross his legs due to the impingement problems. The Veteran also stated that the doctor who performed the surgery stated that the situation was unfixable because a joint replacement would not stop the bone spurs from growing and causing buildup on the leg bone. The Veteran stated that he would occasionally need surgery due to the arthritic growth and impingement in each hip. The Veteran indicated that he used a walker to move, but stated that he used it due to a problem with using a cane related to his shoulders. The Veteran stated that he had difficulty driving long distances due to pain. The Veteran indicated that he had occasional difficulty getting dressed, going up steps, and moving sideways due to his hip disability. In a May 2012 private treatment record, a private examiner noted that the Veteran had lumbar disc degeneration, low back pain, and peripheral neuropathy. The examiner further stated that the Veteran had to use a wheelchair or a cane. On examination, the examiner noted that the hip muscles were normal in tone, bulk, and strength. In an August 2012 private treatment record, the same examiner made identical findings. In an October 2012 private treatment record, the Veteran reported experiencing pain in his hips, low back, and buttock region. The Veteran stated that he had constant pain, with radicular pain to the legs. A review of a spine MRI showed multilevel disc degeneration, facet arthopathy, post-operative changes, spondylolisthesis, and radiculopathy. On examination, the examiner noted that the Veteran had a widened gait transfer, but ambulated around the room without assistance. The examiner reported that the gait was antalgic with diminished weight bearing on both the right and left lower extremities. The examiner noted moderate pain in the left and right hip joints. The examiner noted muscle strength and tone were normal in both lower extremities. The examiner indicated that the range of motion in both extremities was reduced. The examiner stated that the Veteran's primary diagnoses were lumbar and shoulder disabilities. Based on the findings, the examiner also recommended the Veteran undergo bilateral trochanteric bursa injections. The examiner stated that the Veteran's condition was chronic and permanent. In a subsequent October 2012 private treatment record, the same examiner stated that the Veteran's hip pain was related to greater trochanteric bursitis. The examiner performed bilateral trochanteric bursa injections. After the procedure, the Veteran reported experiencing at least 50 percent pain relief. In a December 2012 private treatment record, written by the same examiner, the Veteran reported experiencing 90 to 95 percent improvement in symptoms since the bursa injections. The examiner noted full flexion and extension strength of the hip on examination. The examiner further noted severe greater trochanteric tenderness and severe piriformis tenderness on palpation. The examiner stated that the Veteran's pain was multifactoral, being related to degenerative joint disease, myofascial pains, and possibly a discogenic problem. In December 2012, the same examiner provided sacroiliac joint injections and an additional left trochanteric bursa injection. In subsequent treatment records, the Veteran reported experiencing 90 percent improvement of his symptoms. In a November 2013 statement, the Veteran stated that the hips were a major joint as defined by Diagnostic Code 5003, and wrote that VA should grant him a 20 percent rating for the hips due to limitations of potential gout, bone spurs, trochanteric bursitis, and degenerative arthritis which all started during active duty. In a July 2013 VA medical examination report, written by the same examiner who wrote the December 2008 VA medical examination report, the Veteran reported experiencing hip pain almost every day without relief from pain medications, but with some relief from ice or rest. The Veteran indicated that he awoke at night due to hip pain, but found some relief through repositioning or further icing. The Veteran indicated that he stopped going to physical therapy due to pain, but had started using a bicycle again. The Veteran reported experiencing flare-ups a couple of times per day, every day, lasting up to all day. The Veteran indicated that he used a TENS unit and lidoderm patches. He reported that the pain was caused by the hip disability, as a back surgery had cured his back pain. On examination, the Veteran was able to flex the right hip to 80 degrees with pain at the endpoint. Right hip abduction was to 42 degrees. Right hip extension was to greater than five degrees with pain beginning at the endpoint. Right hip abduction was not lost beyond 10 degrees, adduction was not so limited that the Veteran could not cross his legs, and rotation was not limited such that the Veteran could not toe-out more than 15 degrees. The Veteran was able to flex the left hip to 55 degrees with pain at the endpoint. Left hip extension was to greater than five degrees with pain beginning at the endpoint. Left hip abduction was not lost beyond 10 degrees, adduction was not so limited that the Veteran could not cross his legs, and rotation was not limited such that the Veteran could not toe-out more than 15 degrees. The examiner indicated that the Veteran was able to perform repetitive-use testing with three repetitions without change in results. The examiner reported that the Veteran experienced less movement than normal and pain on movement of the hips bilaterally. The examiner also noted that the Veteran had localized tenderness or pain to palpation for the joints and soft tissue of both hips. Muscle testing of both hips was normal, and there was no evidence of ankylosis, malunion or nonunion of femur, flail hip joint, or leg lengthy discrepancy. The examiner noted that the Veteran had a scar related to the 2009 left hip surgery that was not painful, unstable, or exceeding 39 square centimeters in area. The examiner stated that the Veteran did not experience functional impairment of either hip such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. The examiner noted that an X-ray taken that day showed that the Veteran's hips were normal. Having reviewed the record, the examiner stated that the Veteran's bilateral hip arthritis resulted in minimal functional impairment, as shown by the examination results. The examiner indicated that the remainder of the Veteran's pain symptomatology was attributed to nonservice connected trochanteric bursitis, spinal stenosis, lumbar postlaminectomy syndrome, and sacroiliac arthropathy, all of which were less likely than not caused by, related to, or worsened beyond their natural progression by the service-connected bilateral hip arthritis, or service. The examiner further stated that trochanteric bursitis was characterized by painful inflammation of the bursa located just superficial to the greater trochanter of the femur. The examiner noted that condition was not a form of arthritis or a degenerative condition of the joint. In a January 2014 VA addendum opinion, the same examiner noted reviewing the claims file, to include the service medical records indicating in-service treatment for trochanteric bursitis. The examiner noted that the Veteran was first diagnosed with bilateral trochanteric bursitis while in 1987 and then with left trochanteric bursitis in 1989. Service examiners eventually treated the disability with steroid injections. The examiner noted that the Veteran underwent steroid injections for bilateral trochanteric bursitis in 2012, after which he reported an improvement of 90 percent of his symptoms. The examiner quoted a study, indicating that trochanteric bursitis was a condition which usually improved or resolved with conservative care. After one year, 36 percent of individuals with the disability continued to experience symptoms, and, at five years, only 29 percent reported continued pain. The patients who had received a corticosteroid injection had a 2.7-fold chance of recovery after five years, as compared with patients who had not received an injection. The examiner noted that the Veteran was diagnosed with a second discrete episode of trochanteric bursitis 23 years after having been treated for the last documented in-service episode. The examiner indicated that the 2012 bursitis episodes were separate and discrete from the in-service episodes, as indicated by the March 2009 private treatment record which showed no evidence of trochanteric tenderness during examination. Therefore, the examiner opined that the post-service trochanteric bursitis treated in 2012 was a discrete, new diagnosis, and was less likely than not caused by, related to, or worsened beyond natural progression by the trochanteric bursitis treated in service 23 years prior to examination. In a March 2014 written statement, the Veteran wrote that the most recent VA examiner had ignored information from the private examiner who had performed surgery on the left hip and thoroughly examined the right hip. The Veteran indicated that the private examiner had made statements indicating that the Veteran's arthritic problem could not be corrected. He reported that his pain could be managed only be removing arthritic growth that caused impingement in his hip. The Veteran stated that the examiner made an error in the evaluation. Prior to March 26, 2009, and from July 1, 2009, the Board finds that the Veteran's left and right hip arthritis disabilities' respective symptomatologies more nearly approximated that required for separate 10 percent ratings under Diagnostic Code 5003 and 38 C.F.R. § 4.59. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14 (2015); Esteban v. Brown, 6 Vet. App. 259 (1994). In this instance, the Veteran's right and left hip arthritis disabilities are distinct and separate from each other, and, therefore, the assignment of separate ratings for each is permissible under the rating schedule. Because there was noncompensable limitation of motion, the Board finds that Diagnostic Code 5003 and 38 C.F.R. § 4.59 cause the disabilities to warrant a 10 percent rating for each hip, rather than a single 10 percent rating for a bilateral disability. Prior to March 26, 2009, and from July 1, 2009, the Board also finds that the Veteran's left and right hip arthritis disabilities' symptomatologies did not more nearly approximate that required for an increased rating in excess of 10 percent in either hip under any potential Diagnostic Code. Prior to March 26, 2009, and from July 1, 2009, the Veteran's left and right hip disabilities did not create limitation of motion more nearly approximating that required for a compensable rating under the applicable Diagnostic Codes. The evidence for the applicable periods contains no report of limitation of extension of either hip to five degrees, as required for a compensable rating under Diagnostic Code 5251. The evidence also contains no notation suggesting limitation of flexion of either hip to 45 degrees, as required for a compensable 10 percent rating under Diagnostic Code 5252. At the January 2012 Travel Board hearing, the Veteran stated that he was unable to cross his legs due to his bilateral hip disabilities. Yet, the objective medical evidence contains no findings suggesting either an inability to cross the legs or a limitation of external rotation to 15 degrees as required for a compensable 10 percent rating under Diagnostic Code 5253. 38 C.F.R. § 4.71a (2015). Ankylosis of the hips is not shown. Considering the large amount of objective medical evidence in this matter and the skill with which the private and VA examiners performed their examinations, the Board finds that the Veteran's single comment of being unable to cross his legs is of less value than the findings of the many examiners during the pertinent increased rating periods. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (indicating that the Board may determine the value of all evidence submitted, lay and medical). As the record contains no indication that either hip disability during the applicable rating periods more nearly approximated hip ankylosis, flail joint, or impairment of the femur, the Board finds that Diagnostic Codes 5250, 5254, and 5255 are not applicable. 38 C.F.R. § 4.71a (2015). The Veteran's hip arthritis throughout the applicable rating periods has consistently shown to be productive of otherwise noncompensable limitation of motion of each hip throughout the applicable rating periods. As each hip is a major joint, a 10 percent rating is warranted for each hip under Diagnostic Code 5003. 38 C.F.R. § 4.71a (2015). Regarding the possibility of increased ratings in excess of the separate 10 percent ratings assigned, the Board finds also that the evidence, both lay and medical does not indicate functional loss of the either hip due to service-connected arthritis, to include flare-ups due to pain, fatigability, incoordination, and weakness, so as to approximate abduction of either hip functionally limited to 10 degrees or less; ankylosis of the hip; flexion of either hip functionally limited to 30 degrees or less; or abduction of either hip functionally limited to 10 degrees or less. 38 C.F.R. § 4.71a (2015), Diagnostic Codes 5250, 5252, 5253, DeLuca v. Brown, 8 Vet. App. 202 (1995). Moreover, the record contains no evidence of a hip flail joint or any impairments of the Veteran's femur; therefore, the criteria under Diagnostic Codes 5254 and 5255 are inapplicable in this matter. C.F.R. § 4.71a (2015). In his statements, the Veteran has claimed to have trochanteric bursitis related to service. The Veteran's service medical records indicate diagnosis and treatment for bilateral trochanteric bursitis in 1987, and subsequent diagnosis and injection treatment for left trochanteric bursitis in 1989. Although the Veteran reported experiencing bilateral hip pain during his November 1992 report of his medical history prior to discharge, a contemporaneous medical examination was normal. The first post-service treatment record indicating treatment for bursitis is from 2012, approximately 19 years after the Veteran's discharge from service. In an October 2012 private treatment record, a private examiner recommended that the Veteran have trochanteric bursitis injections, but did not diagnosis bursitis itself. In that document, the examiner stated that the Veteran's condition was chronic and permanent, suggesting that the Veteran's bursitis would be a long-standing problem. By contrast, in the July 2013 VA medical examination report and January 2014 addendum opinion, a VA examiner opined that the Veteran's bursitis was not related to service or any incident of service, to include the Veteran's in-service instances of bursitis. In explaining this opinion, the examiner stated that trochanteric bursitis was distinct from his service-connected arthritis. The examiner noted that trochanteric bursitis was characterized by painful inflammation of the bursa located just superficial to the greater trochanter of the femur, rather than the hip joint itself. The examiner noted that condition was not a form of arthritis or a degenerative condition of that joint. The examiner further noted that trochanteric bursitis was a condition which usually improved or resolved with conservative care, emphasizing statistics showing a healing of bursitis sufferers after treatment. The examiner explained that he the treatment records indicated that the Veteran experienced an in-service instance bursitis in 1989 and did not experience another until approximately 23 years later, in 2012. The examiner noted that a March 2009 private treatment record showed that, upon examination, a private examiner who later performed surgery on the Veteran found no evidence of trochanteric bursitis. Therefore, the examiner noted that the instance of bursitis the Veteran experienced during the increased rating period was less likely than not related to service. Considering the VA examiner's thorough review of the evidence and detailed explanation of his findings, the Board finds that opinion has greater probative value in this matter than that of the Veteran or the October 2012 private examiner. Prejean v. West, 13 Vet. App. 444 (2000) (indicating that the Board may determine the probative value of medical opinions based on their detail, the persuasiveness of their opinions, and the physicians' access to a veteran's medical records); 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2015). In any event, the Board has rated the total hip symptomatology shown as the symptoms were not distinguishable from the service-connected disability. The Board has considered whether the Veteran is entitled to a separate rating for a surgical scar from the March 2009 left hip surgery. Under the applicable rating criteria, the Veteran might conceivably be allowed a compensable separate rating for a scar related to a surgical procedure for a service-connected left hip disability if it were noted to be large (specifically greater than 39 square centimeters in area), unstable, or painful. 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7804 (2015). However, the evidence, both lay and medical, contains no notation indicating that the Veteran's scar was painful, unstable, or collectively greater than 39 square centimeters in area. Therefore, the Veteran is not entitled to a separate compensable rating for a surgical scar. The Board notes that the VA examiner also indicted that a great deal of the Veteran's pain was related to spinal stenosis, lumbar postlaminectomy syndrome, and sacroiliac arthropathy. As the Board is remanding the issue of service connection for a low back to the RO for adjudication, the Board need not consider whether those disabilities are related to service. Any symptomatology related to the back disability will be addressed in adjudicating that claim. The Veteran claims that the VA examiners have incorrectly diagnosed his arthritis disability. In a March 2014 statement, the Veteran wrote that a private examiner had told him that his arthritis condition was permanent, and that his pain could only be controlled by further surgery. The evidence indicates that the Veteran has an arthritic condition that has persisted during the entirety of the applicable increased rating periods. Although the Veteran has reported that the arthritis in his hips is growing, MRI and X-ray reports during the applicable periods have mostly shown minimal or mild arthritis of the hips. Most importantly, in rating the Veteran's hip arthritis, VA contemplates the effect of the disability on the function of the Veteran's hip. The Veteran's hip arthritis throughout the applicable rating periods has consistently shown to be productive of otherwise noncompensable limitation of motion of each hip throughout the applicable rating periods. As each hip is a major joint under VA regulations, a 10 percent rating is warranted for each hip under Diagnostic Code 5003. 38 C.F.R. § 4.71a (2015). For the reasons stated above, prior to March 26, 2009, and as of July 1, 2009, the criteria for separate ratings of 10 percent, but no greater, for the Veteran's right and left hip disabilities have been met, in place of the single 10 percent rating for bilateral hip arthritis. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. §§ 4.3, 4.7 (2015). As the preponderance of the evidence is against the granting of even higher ratings, the claim for any higher rating must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has considered whether referral for consideration of extraschedular ratings is warranted for the Veteran's right and left hip disabilities. In exceptional cases, an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2015). 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 a Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). If the rating criteria reasonably describe a Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, the assigned schedular rating is adequate, and no referral is required. However, if the schedular rating does not contemplate a Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms, to include marked interference with employment and frequent hospitalization due to the disability. 38 C.F.R. 3.321(b)(1) (2015). When the Rating Schedule is inadequate to evaluate a Veteran'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, specifically a determination of whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. 38 C.F.R. 3.321(b)(1) (2015). Regarding the service-connected right and left hip arthritis, turning to the first step of the extraschedular analysis, for applicable rating periods, the Board finds that all the symptomatology and impairment caused by the Veteran's conditions were specifically contemplated by the schedular rating criteria and no referral for extraschedular consideration is required. During those periods, the Veteran's service-connected disability has been manifested by pain resulting in otherwise noncompensable limitation of motion in each hip. The schedular rating criteria, Diagnostic Code 5003, specifically provide for a rating for limitation of motion of a major joint, related to arthritis, as do the rating criteria for limitation of hip motion. 38 C.F.R. § 4.71a (2015). In this case, comparing the Veteran's disability level and symptomatology, the Board finds that the Veteran's degree of disability is contemplated by the Rating Schedule. As the schedular rating contemplates the symptomatology of the Veteran's right and left hip arthritis, the Board need not determine whether there is an exceptional disability picture that exhibits other related factors such as those provided by the regulation as governing norms. 38 C.F.R. 3.321(b)(1) (2015). In the absence of evidence that the schedular rating criteria are inadequate to rate the Veteran's right and left hip arthritis, the Board is not required to remand those matters to the RO for the procedural actions outlined in 38 C.F.R. 3.321(b)(1) (2015); Bagwell v. Brown, 9 Vet. App. 237 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). ORDER Prior to March 26, 2009, and as of July 1, 2009, a separate rating of 10 percent, but not greater, for a left hip arthritis disability, in place of the current 10 percent rating for bilateral hip arthritis, is granted. Prior to March 26, 2009, and as of July 1, 2009, a separate rating of 10 percent, but not greater, for a right hip arthritis disability, in place of the current 10 percent rating for bilateral hip arthritis, is granted. REMAND A September 2014 rating decision reopened a previously denied claim for service connection for a low back disability and denied the reopened claim. In November 2014, VA received a notice of disagreement, indicating that the Veteran disagreed with that denial. A review of the record shows that the Veteran has not been issued a statement of the case in response to that August 2015 notice of disagreement. Therefore, the appropriate Board action is to remand the issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for a low back disability for the issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). The claim of entitlement to a TDIU is inextricably intertwined with the claim regarding whether new and material evidence has been received to reopen a claim of entitlement to service connection for a low back disability. Therefore, that claim must be readjudicated before the claim for entitlement to a TDIU may be adjudicated. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: 1. Issue a statement of the case on the issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for a low back disability. Notify the Veteran of his appeal rights and that he must file a timely substantive appeal if he wants appellate review. If the Veteran perfects an appeal, return that issue to the Board. 2. After any further development, to include the consideration of whether referral of entitlement to TDIU pursuant to 38 C.F.R. § 4.16(b) is warranted, readjudicate the claim for entitlement to a TDIU. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs