Citation Nr: 1752368 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 12-11 789 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for a right hip disability. 2. Entitlement to an initial disability rating in excess of 10 percent for a left hip disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Abrams, Associate Counsel INTRODUCTION The Veteran served on active duty from September 2007 to December 2010. These matters are before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. Following an August 2012 Travel Board hearing, this case was remanded in November 2014 and May 2017. FINDINGS OF FACT 1. The Veteran's right hip disability has been shown to be productive of painful motion of a major joint. 2. The Veteran's left hip disability has been shown to be productive of tenderness, painful motion, and mild degenerative arthrosis. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for a right hip disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5252 (2017). 2. The criteria for a disability rating in excess of 10 percent for a left hip disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.59, 4.71a, DC 5010-5003 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a preliminary matter, the Board has reviewed the claims file and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification). Moreover, the Board has reviewed the record and finds that all prior remand instructions have been complied with to the full extent possible, and the Veteran's representative has not identified any deficiencies in the October 2017 Appellant's Brief or elsewhere. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board will thus proceed to the merits of this case. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. With initial evaluations, as here, separate evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Regarding orthopedic disabilities, when assigning a disability rating, it is necessary to consider functional loss due to flare-ups, fatigability, incoordination, and pain on movements. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Although pain may cause a functional loss, pain itself does not constitute functional loss. 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. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The Veteran contends that his service-connected hip disabilities warrant disability ratings in excess of 10 percent. Both claims involve the same anatomical area and are discussed together. The Veteran's right hip disability is currently rated 10 percent under DC 5252 for limitation of flexion of the thigh. 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5252. The left hip disability is currently rated 10 percent under DCs 5010-5003 for degenerative arthritis. 38 C.F.R. § 4.71a, DC 5010-5003. Under DC 5010, arthritis due to trauma, substantiated by x-ray findings should be rated as arthritis, degenerative. Id. Under DC 5003 for degenerative arthritis, degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is applicable 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. In the absence of limitation of motion, the minimum 10 percent disability rating is warranted for x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. The maximum 20 percent disability rating is warranted for x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. Pertinently, Note (1) states that the 20 percent and 10 percent ratings based on x-ray findings, above, will not be combined with ratings based on limitation of motion. Normal range of motion of the hip is listed as 125 degrees of flexion and 45 degrees of abduction. See 38 C.F.R. § 4.71a, Plate II. Notably, under DC 5252, for limitation of flexion of the thigh, the minimum 10 percent disability rating is warranted for a limitation of thigh/hip flexion to 45 degrees. A 20 percent disability rating will be warranted for a limitation of thigh/hip flexion to 30 degrees. A 30 percent disability rating will be assigned for a limitation of thigh/hip flexion to 20 degrees. The maximum 40 percent disability rating is warranted for a limitation of thigh/hip flexion to 10 degrees. Id. Upon VA examination in December 2010, the Veteran did not have bilateral hip pain at rest. The pain started once he stood up and pressure was placed on his hip joints. Once he stopped whatever activity he was doing, his pain went away. The Veteran's pain was not with the manipulation of his hips, but with pressure from standing. The VA examiner noted that there was no evidence of edema, effusion, instability or redness. The Veteran had no pain with palpation in his right hip but had mild tenderness in his left hip with palpation. The Veteran experienced pain bilaterally with adduction of his hips. Range of motion results bilaterally were flexion to 125 degrees, extension to 30 degrees, adduction to 25 degrees, abduction to 45 degrees, external rotation to 60 degrees, and internal rotation to 40 degrees. There was no objective evidence of increased pain, fatigue, weakness, lack of endurance or incoordination upon repetitive-use testing. In a February 2015 VA examination report, the examiner noted that since the last examination, the Veteran started a new job that required more exercise that included climbing ladders and walking. The Veteran reported aches and pains deep in his hip joints. The examiner noted that the Veteran did not have flare-ups which impacted the function of his hips or thighs. Additionally, the Veteran reported no functional loss or functional impairment of his hips. Range of motion results for the Veteran's bilateral hips were flexion to 125 degrees, extension to 30 degrees, abduction to 45 degrees, adduction to 25 degrees, external rotation to 60 degrees, and internal rotation to 50 degrees. No pain was noted on the examination and there was no pain with weight bearing. The examiner reported that there was no evidence of localized tenderness or pain on palpation. The Veteran was able to perform repetitive-use testing, and there was no additional loss of function or range of motion in either hip. Pain, weakness, fatigability, or incoordination did not significantly limit the Veteran's functional ability with repeated use over time. The examination was not conducted during a flare-up of the Veteran's hips, and the Veteran reported that he did not experience flare-ups. Additionally, the Veteran's hips did not have ankylosis, malunion or nonunion of femur, flair hip joint, or leg length discrepancy. The examiner noted that the Veteran walked with a normal gait and did not use any assistive devices. There was no functional impairment of such an extremity that no effective function remained other than that which would be equally well served by an amputation with prosthesis. It was noted that the Veteran's hips would impact his ability to perform occupational tasks. The Veteran stated that his hip pain increased with the physical activity of his new job, but that he was able to perform his duties. A December 2016 treatment note indicated that the Veteran's left hip pain had become worse over the past several months. The Veteran reported that his hip pain flared up when lying in bed at night, when he got up in the middle of the night, and when he took his first steps in the morning. During his June 2017 VA examination, the Veteran noted that his hip pain was worse and was present during the day, but was much worse at night. On the right, flexion was to 110 degrees, extension was to 30 degrees, abduction was to 40 degrees, and adduction was to 25 degrees. External rotation was to 50 degrees, and internal rotation was to 30 degrees. On the left, flexion was to 110 degrees, extension was to 30 degrees, abduction was to 35 degrees, and adduction was to 20 degrees. External rotation was to 50 degrees, and internal rotation was to 30 degrees. Bilaterally, adduction was not limited such that the Veteran could not cross his legs. The VA examiner noted that the Veteran's abnormal range of motion was the result of body habitus. Range of motion did not contribute to a functional loss, and no pain was noted on the examination. There was no pain with weight bearing and no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. The Veteran was able to perform repetitive-use testing with at least three repetitions, but there was no additional loss of function or range of motion in either hip. The Veteran was examined immediately after repetitive use over time, but pain, weakness, fatigability, or incoordination did not significantly limit functional ability. The Veteran was not examined immediately after a flare-up, and pain, weakness, fatigability, or incoordination did not significantly limit functional ability. Additionally, the Veteran did not have ankylosis in either hip. There were no other pertinent physical findings, complications, conditions, signs, or symptoms related to the Veteran's hips, and he did not use any kind of assistive device as a normal mode of locomotion. The examiner noted that Veteran's hip conditions would not impact his ability to perform any type of occupational task. The examiner further noted that there was no evidence of pain on passive range of motion testing and there was no evidence of pain when the joint was used in non-weight bearing. The examiner indicated that the Veteran's active range of motion equaled his passive range of motion. The examiner noted that the Veteran was tested with active and passive range of motion as well as weight bearing and nonweight bearing. The examiner reported that there were no objective findings on x-ray that would support additional loss of motion with pain on use or flare-ups, as the Veteran's range of motion was the same on all three repetitions. In light of the above evidence, the Board finds that the currently assigned initial 10 percent ratings for right and left hip disabilities is appropriate, and no higher ratings are warranted at this time, to include 'staged' ratings. A disability rating in excess of 10 percent is not warranted under DC 5252 because the Veteran's limitation of flexion was not limited to 30 degrees. On the contrary, the Veteran's flexion bilaterally during the course of this appeal was to 110 degrees or greater. Even taking into account the functional loss factors contemplated by DeLuca and 38 C.F.R. §§ 4.40 and 4.45, there exists no basis for a higher rating under DC 5252. Likewise, a disability rating in excess of 10 percent is not warranted under DC 5003 because there was no x-ray evidence of degenerative arthritis of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitation exacerbations. Moreover, for both hips there is no evidence of hip ankylosis (DC 5250), limitation of abduction with motion lost beyond 10 degrees (DC 5253), flail joint of the hip (DC 5254), or malunion of the femur, with moderate knee or hip disability (DC 5255). (The Board notes that Diagnostic Code 5251, concerning limitation of extension, does not allow for a rating in excess of the presently assigned 10 percent ratings.) In the absence of any clinical findings that would warrant increased evaluations for the Veteran's right and left hip disabilities above 10 percent, the claims must be accordingly be denied. The Board has not overlooked Veteran's lay statements and testimony with regard to the nature and severity of his service-connected right and left hip disabilities. The Veteran is competent to report on factual matters for which there is firsthand knowledge; and the Board finds that his reports concerning symptomatology have been credible. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, there is no basis for concluding that the Veteran is competent to determine how severe his right and left hip disabilities are in light of the applicable diagnostic criteria, in the absence of specialized medical training, which in this case has not been established. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). As such, the Board has accorded the objective medical findings and evaluations provided by December 2010, February 2015, and June 2017 VA examiners greater probative weight in determining that the nature and severity of the Veteran's right and left hip disabilities throughout the appeal period. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Board has reached this conclusion because the examiners reviewed the claims file, made repeated references to pertinent past records and statements, and provided detailed rationales. The Board concludes that the preponderance of the evidence is against the Veteran's increased rating claims. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Specifically, the Board is cognizant of the ruling of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran has not specifically argued, and the record does not otherwise reflect, that his service-connected disabilities render him unable to secure or follow a substantially gainful occupation. The Veteran has not asserted that he is unable to work because of his service-connected disabilities, nor does the record reflect that he cannot work because of his service-connected disabilities. Accordingly, the Board concludes that a claim for TDIU has not been raised. The Veteran certainly may raise this claim in the future, should he choose to do so. ORDER Entitlement to an initial disability rating in excess of 10 percent for a right hip disability is denied. Entitlement to an initial disability rating in excess of 10 percent for a left hip disability is denied. ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs