Citation Nr: 1753428 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 10-26 192 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to a higher initial rating for service-connected post total right hip arthroplasty ("right hip disability"), rated as 30 percent disabling from November 1, 2009, to May 16, 2017, and 50 percent disabling since May 17, 2017. REPRESENTATION Veteran represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD A. Kutrolli, Associate Counsel INTRODUCTION The Veteran served honorably in the United States Army from July 1982 to January 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. Jurisdiction has since been transferred to the RO in Roanoke, Virginia. In a March 2009 rating decision, the RO granted a temporary rating of 100 percent effective from September 30, 2008, to October 31, 2009, and assigned a 30 percent rating from November 1, 2009, thereafter. The Veteran expressed disagreement with the rating assigned; because 100 percent is the maximum schedular rating, the only issue on appeal is whether the Veteran is entitled to a higher initial rating since November 1, 2009. The Board last remanded this matter on February 28, 2017. The record reflects substantial compliance with those remand directives. Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (citing Stegall v. West, 11 Vet. App. 268, 271 (1998) (conferring upon an appellant the right to substantial compliance with the Board's order)). FINDINGS OF FACT 1. From November 1, 2009, to May 16, 2017, the Veteran's right hip disability did not manifest with moderately severe residuals of weakness, pain or limitation of motion. 2. Since May 17, 2017, the Veteran's right hip disability has not manifested with markedly severe residuals of weakness, pain or limitation of motion. CONCLUSIONS OF LAW 1. From November 1, 2009, to May 16, 2017, the criteria for an initial disability rating in excess of 30 percent for a right hip disability were not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5054 (2017). 2. Since May 17, 2017, the criteria for an initial disability rating in excess of 50 percent for a right hip disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5054. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA Notice VA has completed the necessary steps in order to meet its duties to notify and assist in this case. The Veteran has not raised any procedural arguments regarding the notice or assistance provided. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). II. Laws and Regulations Disability ratings are determined by applying the criteria in VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. § Part 4. 38 U.S.C. § 1155. Separate DCs identify the various disabilities. Each disability is viewed in relation to its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Any reasonable doubt regarding the degree of disability is resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Id. § 4.7. Otherwise, the lower rating will be assigned. Id. After reviewing the evidence, the Board finds nothing in the record which would lead to the conclusion that the current evidence is not adequate for rating purposes. 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In rating disabilities of the musculoskeletal system, it is necessary to consider functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). The Veteran's service-connected right hip disability is rated under 38 C.F.R. § 4.71a, DC 5054, for hip replacement (prosthesis). Under DC 5054, a 100 percent rating is awarded for one year following implantation of prosthesis. After one year, a 30 percent minimum rating is provided; a 50 percent rating is warranted where there are moderately severe residuals of weakness, pain, or limitation of motion; a 70 percent rating is warranted where there are markedly severe residuals of weakness, pain or limitation of motion; and a 90 percent rating is warranted where there is painful motion or weakness such as to require the use of crutches. Normal range of motion of the hip is from 0 to 125 degrees of flexion and 0 to 45 degrees of abduction. 38 C.F.R. § 4.71, Plate II. The terms "moderately severe" and "markedly severe" as used under DC 5054 are not defined in the Rating Schedule. Rather than applying a mechanical formula to determine when symptomatology is "moderately severe" or "markedly severe," the Board must evaluate all of the evidence to ensure an "equitable and just" decision. 38 C.F.R. § 4.6. It is informative, however, that "moderate" is defined as "within reasonable limits; not excessive or extreme." American Heritage Dictionary, Fifth Edition, Houghton Mifflin Harcourt Publishing Company (2016). "Marked" is defined as "clearly defined and evident; noticeable." Id. A. From November 1, 2009, to May 16, 2017 The evidence does not support a higher initial rating from November 1, 2009, to May 16, 2017, or any portion thereof. The Veteran was afforded a VA examination in July 2010. During the examination, the Veteran reported spontaneous flare-ups of symptoms such as pain, stiffness, swelling, giving way, tenderness, and pain in the right hip occurring once per week and lasting up to five days. The examination revealed normal gait, there were no signs of abnormal weight bearing, the Veteran did not need assistive devices for ambulation, and his right hip showed no signs of edema, instability, abnormal movement, effusion, weakness, tenderness, deformity, subluxation, or guarding of movement. There was no evidence of ankylosis of the hip and range of motion was normal, without limitation by pain, fatigue, weakness, lack of endurance or incoordination. The examiner also opined that the Veteran's right hip disability did not affect his occupation or daily activity. The Veteran also underwent a VA examination in November 2015. During the examination, the Veteran reported that he appealed his decision because "someone" told him he should have a higher rating. He also reported intermittent right hip pain, rated as 2-3 out of 10, mainly with standing and sitting, with some fluctuation in different weather. He stated that he last saw an orthopedist in 2009 and did not take any days off from work in the preceding year due to his hip. The physical examination revealed flexion from 0-120 degrees (normal 0-125) and external rotation from 0-50 degrees (normal 0-60), with all other measurements being normal. While some pain was noted with external rotation, the examiner stated that the pain does not result in functional loss and repetitive motion testing did not result in additional limitations. The examiner noted that pain, weakness, fatigability or incoordination would not significantly limit functional ability with repeated use over a period of time. Muscle strength testing was normal. A medical treatment record from the Hampton VA Medical Center (VAMC) dated January 8, 2016, shows the Veteran reported doing well since his 2008 hip replacement. He added that he could exercise almost daily, run on the treadmill and elliptical machine, swim, and do cardio and weight lifting. After the Board's remand in April 2016, the Veteran was afforded another VA examination in July 2016. The Veteran reported satisfaction with his right hip surgery, stating "they did an excellent job." He required occasional pain medication (Motrin) over the ensuing years, but his last use was more than 18 months prior. The Veteran also reported that he exercised daily on the elliptical for 20-30 minutes, ran on the treadmill, lifted weights and stretched. He reported no additional procedures, injections, physical therapy, etc., since the surgery, and he denied missing any days of work over the prior 12 months due to his hip. The Veteran gave a history of stiffness after prolonged sitting and "not much pain" per his self-report. He also reported flare-ups as very mild pain with stiffness/tightness and functional loss in terms of limitations of running, sitting more than 2 hours, walking 3-4 miles, and biking more than 10 miles. Initial range of motion testing was mildly abnormal; however, the examiner noted it did not contribute to a functional loss, and no pain was noted on the examination. Also, there was no evidence of pain with weight bearing and no objective evidence of localized tenderness or pain on palpation of the joint. The examiner noted abnormal range of motion for the left hip as well, with pain noted upon extension-although it did not cause functional loss. There was no reduction in muscle strength, no muscle atrophy, no ankylosis in either hip, and no need for assistive devices. The examiner opined there were very minimal residuals of limitation of motion and some weakness of the gluteus medius that should respond to exercises focused on that muscle. Lastly, the examiner remarked that the Veteran is able to work out vigorously and without flare-ups of hip discomfort. Altogether, the aforementioned findings provide significant evidence against the claim for an initial rating in excess of 30 percent. The examinations are adequate for rating purposes and have only shown very mild limitation of motion. Also, while the Veteran has reported pain and sometimes shown pain on examination, that pain has not risen to the level of severity, frequency, and duration required for a higher rating. In fact, the Veteran has maintained a very active and physical lifestyle, and has not required any further procedures, injections, physical therapy, etc., since his right hip surgery in 2008. While the Veteran competently reported that he suffers from "severe" and "moderately severe" pain, his characterizations are not dispositive. Competency is distinguishable from weight and credibility. Competency is a legal concept determining whether evidence may be heard and considered by the trier of fact; weight and credibility are factual determinations going to the probative value of the evidence to be made after the evidence has been admitted. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Credibility means worthiness of belief or plausibility. The Board may consider many factors when assessing the credibility and weight of lay evidence, including statements made during treatment, self-interest or bias, internal consistency, and consistency with other evidence. Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam); Pond v. West, 12 Vet. App. 341, 345 (1999) (explaining that the Board may consider the appellant's self-interest when determining credibility and weight); Madden v. Gober, 125 F.3d 1477, 1480-81 (1997) (noting that the Board is entitled to discount the credibility and weight of evidence in light of its own inherent characteristics and relationship to other items of evidence). The Board may also weigh the absence of contemporaneous medical evidence as a factor, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006); see also Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue); see also Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom., Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (finding that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact). Here, the Veteran reported pain levels at 10 on a 1 to 10, and reported flare-ups once per week, lasting for five days; however, the examiner did not note any objective evidence of pain. See July 2010 VA Exam. During the November 2015 VA examination, the Veteran reported that his pain levels were 10 out of 10 before the surgery, and improved to 2-3 out of 10, intermittently, ever since. See November 2015 VA Exam, p. 2. Also, a November 2008 follow-up at the Naval Medical Center in Portsmouth, Virginia, revealed that, six weeks after the hip surgery, the Veteran had excellent range of motion, he had stopped using his cane two weeks prior, he had no post-operative complaints, and he was walking 2.5 miles per day. Moreover, the Veteran has repeatedly remarked that he has been doing well since his hip replacement, has not missed any time from work due to his right hip disability, and has not underwent further procedures, injections, physical therapy, etc. since his surgery. While the Veteran has reported residuals when he sits for more than 2 hours, sitting for long periods of time is unhealthy on many fronts, and, as the Veteran stated, the pain is relieved when he does leg exercises. Brief instances of stiffness and mild, intermittent pain do not rise to the level of moderate severity needed for a higher rating. Simply put, the Veteran's descriptions of "severe" pain and flare-ups are at odds with other more probative evidence. Consideration of functional loss or impairment does not lead to a higher rating. 38 C.F.R. §§ 4.40, 4.45, 4.59; see Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011); Deluca v. Brown, 8 Vet. App. 202, 204-06 (1995). The Veteran's symptoms were accounted for and he was able to perform repetitive testing on all occasions, which revealed no additional limitation of motion due to pain, incoordination, weakness or fatigability. Although the Veteran has reported some interference with sitting, squatting and physical activity, his vigorous workout regimen and other capabilities indicate that the frequency, severity and duration of his residuals do not rise to the level needed for a 50 percent rating. There is no other evidence, including medical and lay evidence, showing that the Veteran's disability picture more closely approximated a 50 percent rating from November 1, 2009, to May 16, 2017. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Therefore, the claim for a higher initial disability rating from November 1, 2009, to May 16, 2017, is denied. B. Since May 17, 2017 Like above, the evidence pertaining to the period since May 27, 2017, does not show that the Veteran's right hip disability warrants a higher rating. In May 2017, the Veteran was afforded a VA hip examination. He was examined during a flare-up. During the May 2017 examination, the Veteran said his flare-ups consist of pain and stiffness of the right hip and nothing for the left hip. The Veteran did not report any functional loss or functional impairment of the right hip joint. His range of motion measurements were slightly outside of the normal range: flexion (0-125) at 115 degrees; extension (1-30) at 20 degrees; abduction (0-45) at 35 degrees; adduction (0-25) at 20 degrees; external rotation (0-60) at 50 degrees; and internal rotation (0-40) at 30 degrees. There was no evidence of pain during the exam (during passive or active, and weight-bearing or non-weight-bearing) and no evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. The Veteran's abnormal range of motion does not contribute to functional loss, noted the examiner. The Veteran was able to perform repetitive testing without additional loss of function or range of motion, and pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over time. Muscle strength was normal and there was no evidence of ankylosis or muscle atrophy. The examiner noted that the Veteran's hip condition impacts his occupational ability to stand and walk for prolonged periods of time. The examiner concluded that the Veteran showed moderately severe residuals of weakness, pain or limitation of motion of the right hip. Given these findings, the Board finds there is no basis for a 70 percent rating. The evidence does not show that the Veteran has markedly severe residuals. As previously explained, "marked" is defined as "clearly defined and evident; noticeable." See supra, American Heritage Dictionary. The absence of obvious pain and weakness, paired with only slightly abnormal ranges of motion shows that the currently assigned 50 percent rating is appropriate. A higher rating based on functional loss or functional impairment would be inappropriate as the Veteran denied the same. For these reasons, the preponderance of the evidence is against the claim. As a result, the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Therefore, the claim for a higher initial disability rating from since May 17, 2017, is denied. ORDER Entitlement to an initial rating for a right hip disability in excess of 30 percent from November 1, 2009 to May 16, 2017, is denied. Entitlement to an initial rating for a right hip disability in excess of 50 percent since May 17, 2017, is denied. ____________________________________________ B. MULLINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs