Citation Nr: 1759974 Decision Date: 12/22/17 Archive Date: 01/02/18 DOCKET NO. 11-08 954 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an initial rating higher than 10 percent for avascular necrosis of the left hip. 2. Entitlement to an initial rating higher than 10 percent for avascular necrosis of the right hip. 3. Entitlement to an initial rating higher than 20 percent for avascular necrosis of the left shoulder. 4. Entitlement to an initial rating higher than 20 percent for avascular necrosis of the right shoulder. 5. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. WITNESSES AT HEARING ON APPEAL Appellant and P.M. ATTORNEY FOR THE BOARD P. M. Johnson, Counsel INTRODUCTION The Veteran had active service from October 1985 to October 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which granted service connection for avascular necrosis of the bilateral shoulders assigning separate 20 percent ratings, effective December 4, 2001; and granted service connection for avascular necrosis of the bilateral hips assigning separate 10 percent ratings, effective October 15, 2003. Jurisdiction presently resides with the RO in Jackson, Mississippi. In May 2017, a rating decision granted separate evaluations for avascular necrosis with limitation of flexion of the right thigh, avascular necrosis with limitation of extension of the right thigh, avascular necrosis with limitation of flexion of the left thigh, and avascular necrosis with limitation of extension of the left thigh. Each disability was granted with a 0 percent rating, effective March 4, 2017. The rating decision also characterized the Veteran's hip disabilities on appeal as avascular necrosis, right hip with limitation of adduction and avascular necrosis, left hip with limitation of adduction. Each condition was rated 10 percent disabling, effective October 15, 2003. This case was remanded in March 2014 and September 2015 for further development. The Veteran testified at a Board Central Office hearing in June 2013 before the undersigned. A copy of the transcript has been associated with the claims file. At the Veteran's 2013 Board hearing, he was represented by Peter Russo. It was later determined that Peter Russo is not recognized as an attorney that is accredited to represent veterans before VA. The Veteran was informed of this in a November 2017 letter. He was given 30 days to choose a new representative or the Board would assume that he wished to proceed unrepresented. As of the date of this decision, thirty days have passed and the Veteran has not appointed a new representative. A "Report of Contact" from December 12, 2017 states that the Veteran was spoken to regarding the November 2017 letter, and that the Veteran understood his options regarding appointing an accredited representative. As of the date of this decision, the Veteran has not appointed an accredited representative; accordingly, it is assumed that he desires to proceed unrepresented. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2014). The issues of entitlement to a higher initial rating for avascular necrosis of the right and left shoulders are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's avascular necrosis of the left hip has manifested with limitation in flexion of the thigh to 20 degrees, and limits adduction to the extent that the Veteran cannot cross his legs. 2. The Veteran's avascular necrosis of the left hip has not manifested with limitation of flexion of the thigh to 10 degrees or less; or limitation of adduction of the thigh to less than 10 degrees. 3. The Veteran's avascular necrosis of the right hip has manifested with limitation in flexion of the thigh to 20 degrees, and limits adduction to the extent that the Veteran cannot cross his legs. 4. The Veteran's avascular necrosis of the right hip has not manifested with limitation of flexion of the thigh to 10 degrees or less or limitation of adduction of the thigh to less than 10 degrees. 5. The Veteran meets the schedular criteria for a TDIU. 6. With full consideration of the Veteran's educational background and occupational experience, the Veteran's service-connected disabilities prevent him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a rating of 30 percent, but not higher than 30 percent, for right thigh limitation of motion have been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A 5107(b) (2014); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.25, 4.27, 4.40, 4.45, 4.59, 4.71a DC 5252 (2017). 2. The criteria for a rating in excess of 10 percent for limitation of adduction of the right hip have not been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A 5107(b) (2014); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.25, 4.27, 4.40, 4.45, 4.59, 4.71a DC 5253 (2017). 3. The criteria for a rating of 30 percent, but not higher than 30 percent, for left thigh limitation of motion have been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A 5107(b) (2014); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.25, 4.27, 4.40, 4.45, 4.59, 4.71a DC 5252 (2017). 4. The criteria for a rating in excess of 10 percent for limitation of adduction of the left hip have not been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A 5107(b) (2014); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.25, 4.27, 4.40, 4.45, 4.59, 4.71a DC 5253 (2017). 5. The criteria for a TDIU due to service-connected disabilities have been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. § 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Ratings, Generally Disability evaluations (ratings) 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 the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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. Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. Where entitlement to compensation has already 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). Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). Here, the Board finds that the symptoms of the Veteran's disabilities decided on appeal have not significantly changed throughout the appeal period and that uniform ratings are warranted. Id. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Avascular Necrosis of the Left and Right Hips In January 2010, the Veteran was granted service connection for avascular necrosis of the bilateral hips assigning separate 10 percent ratings, effective October 15, 2003. In March 2010, a letter was sent in on behalf of the Veteran that disagreed with the ratings assigned for the Veteran's bilateral hip disabilities. In June 2010, the Veteran stated that he believed "the debilitating effects of these service-connected conditions are much more severe than my assigned ratings. First, your determination was largely based upon range of motion effect and limitation that I believe was incorrectly estimated by my examiner. My degree of bone deterioration and necrotizing would preclude this degree of mobility as I know from experience. Second, my avascular necrosis has greatly decreased my strength and coordination in all four limbs causing severe limitations. The fatigue caused by my condition requires that I rest up several times a day, which makes my condition completely and permanently disabling because my hips are weight bearing joints causing excruciating pain and because of my shoulders I cannot use crutches or a walker to compensate for this. Lastly, the pain in my hips is so severe that it limits lifting, bending, walking, standing, strength, endurance, and stamina. I am prescribed Percocet to be able to complete routine daily chores." The Veteran's avascular necrosis of the bilateral hips was initially evaluated as 10 percent disabling under hyphenated Diagnostic Code 5299-5252. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the assigned rating; the additional code is shown after the hyphen. The provisions of 38 C.F.R. § 4.27 provide that unlisted disabilities requiring rating by analogy will be coded with the first two numbers of the schedule provisions for the most closely related body part and 99. 38 C.F.R. § 4.27. Here, the hyphenated diagnostic code indicates that each of the Veteran's an unlisted musculoskeletal conditions (DC 5299) were rated under the criteria for thigh, limitation of flexion (DC 5252). See 38 C.F.R. § 4.20. However, in January 2017, the Veteran's ratings were changed from rating the Veteran based upon his limitation of flexion to being considered under DC 5299-5253 (thigh, limitation of abduction). Separate noncompensable ratings were granted under DC 5252 for both legs based upon limitation of flexion. As the Veteran's rating under DC 5252 was initially on appeal, the Board will consider whether a higher rating is warranted under either diagnostic code. Under Diagnostic Code 5252, thigh, limitation of flexion, a 20 percent rating is warranted for limitation of flexion of the thigh to 30 degrees, a 30 percent rating for limitation of flexion to 20 degrees, and a 40 percent rating for limitation of flexion to 10 degrees. 38 C.F.R. § 4.71a. Under Diagnostic Code 5253, a 20 percent rating is warranted for impairment of the thigh, for limitation of abduction of motion lost beyond 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5252. The Veteran's bilateral hip disabilities have been evaluated numerous times since his claim for service connection in October 2003. In addition to the Veteran's regular medical treatment, the Veteran underwent VA examinations that evaluated the severity of his bilateral hip disabilities in October 2004, May 2009, December 2011, August 2014, and March 2017. In October 2003, the Veteran's hips were evaluated at a VA orthopedic clinic. The physician noted that the Veteran had a history of osteonecrosis of both hips. The examiner noted that the Veteran would likely eventually need bilateral hip replacements due to his condition. The Veteran was noted to be ambulatory without aids or supports, but complained of pain in both hips, right worse than left. Physical examination was significant for flexion to 100 degrees bilaterally and abduction was to approximately 45 degrees with pain, bilaterally. In October 2004, the Veteran was seen for a VA examination regarding his bilateral hips. The Veteran reported constant bilateral hip pain, which he described as excruciating. He reported increased pain with walking or twisting. He reported occasional use of crutches. He stated that he has difficulty dressing due to hip pain and that sometimes he falls down due to weakness and fatigue. He reported that his hips give out on him occasionally and that he suffers flare-ups that can last days to weeks at a time. During these periods, he rests and takes pain medications. He was noted to have stiffness, fatigability, weakness, and loss of strength and lack of endurance in the hips. On physical examination, the Veteran's left hip was noted to have flexion while reclining from 0 to 20 degrees with pain. While standing, flexion was from 0 to 70 degrees with pain. Abduction was from 0 to 20 degrees. The Veteran's right hip was noted to have flexion while reclining from 0 to 20 degrees with pain. While standing, flexion was from 0 to 80 degrees with pain. Abduction was from 0 to 15 degrees. In May 2009, the Veteran's hips were evaluated again. The Veteran reported chronic pain that was becoming progressively worse. He reported that his shoulder pain keeps him from using prescribed crutches. Range of motion testing revealed hip flexion on the right side from 0 to 90 degrees, but with additional limitation to 60 degrees after repetitive motion. Left hip flexion was noted to be from 0 to 80 degrees, but limited to 60 degrees after repetitive motion. It was noted that the Veteran was unable to cross either of his legs, but abduction was not limited to less than 20 degrees for either hip, including after repetitive motion. In December 2011, the Veteran's was seen for a VA examination. The Veteran reported a moderate increase in pain and additional limitation of motion since his previous examination. The Veteran stated that he has flare-ups that can be brought on by cold or damp weather, or walking. He also complained of both hips locking after sitting or prolonged standing. Range of motion testing revealed hip flexion on the right side from 0 to 75 degrees, with evidence of painful motion at 60 degrees. Upon repetitive motion testing, additional limitation to 70 degrees was noted. Hip flexion on the left side was noted to be from 0 to 70 degrees, with evidence of painful motion at 50 degrees. Upon repetitive motion testing, no additional limitation was noted for the left hip. Abduction was not lost beyond 10 degrees for either hip. The examiner opined that the Veteran would have increased pain with prolonged walking or weightbearing, but stated that the Veteran was capable of sedentary employment. In August 2014, the Veteran underwent another bilateral hip evaluation. The Veteran stated that he has daily, constant pain that is only somewhat relieved by prescribed narcotics. Range of motion testing revealed right hip flexion from 0 to 80 degrees without evidence of painful motion. Left hip flexion was noted to be from 0 to 85 degrees without evidence of painful motion. Abduction was not lost beyond 10 degrees. In August 2015, the Veteran submitted a private evaluation of the Veteran conducted by R.B., D.C. The chiropractor stated that range of motion testing revealed flexion of the right hip from 0 to 43 degrees. Left hip flexion was from 0 to 17 degrees. In March 2017, the Veteran's hips were evaluated by a VA examiner. The Veteran reported symptoms of constant stabbing pain in his hips. He stated that the condition caused pain with standing, walking, and problems with balance. He indicated that hip replacement surgery had been discussed but he desired to wait for it to worsen further before undergoing surgery. Range of motion testing revealed flexion for both hips from 0 to 75 degrees. No additional limitations were reported due to repeated use over time. Upon review of the evidence of record, the Board finds that the Veteran's limitation in flexion of both hips warrants a rating of 30 percent, in addition to the 10 percent ratings assigned, for limitation in abduction. Throughout the appeal period, the Veteran has argued that his limitation in motion due to his avascular necrosis is much more severe that is contemplated by the 10 percent rating initially assigned. The Board finds that this is supported by the October 2004 VA examination and the 2015 private evaluation that demonstrate limitation of flexion to approximately 20 degrees, bilaterally. Particularly, the Board notes the findings that the Veteran right and left hip flexion was reduced considerably when acting against gravity (while the Veteran was sitting). The Veteran's flexion reduced dramatically from 70 degrees to demonstrating evidence of painful motion after 20 degrees of flexion. The Board notes that in Correia v. McDonald, the Court of Appeals for Veterans Claims held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing. Correia v. McDonald, 21 Vet. App. 158 (2016); 38 C.F.R. § 4.59. Here, the Board finds that testing on weight-bearing indicates additional functional limitation that was not considered by the other VA examinations of record; accordingly, the Board gives greater weight to the findings of the October 2004 VA examination and the 2015 private evaluation. As the Veteran's flexion of each hip is limited to 20 degrees, the Board finds that a rating of 30 percent is warranted for right and left hip flexion under DC 5252 throughout the appeal period. The Board, however, does not find that a rating in excess of 10 percent is warranted for abduction of either hip. Throughout the appeal period, the Veteran demonstrated abduction of each hip to at least 10 degrees, even considering limitations caused by painful motion and repetitive motion testing. The Board finds probative the findings of the October 2004, May 2009, and May 2017 VA examinations, which each reported abduction of each hip to at least 15 degrees, despite the Veteran being unable to cross his legs due to his condition. Accordingly, the Board finds that a rating in excess of 10 percent is not warranted under DC 5253. In sum, for the period on appeal, ratings of 30 percent, but no higher, are warranted for right and left thigh, limitation of motion throughout the appeal period. To the extent, that the Veteran argues that a higher evaluation is warranted, a preponderance of the evidence is against the claim and the benefit of the doubt rule is not applicable. The Board also finds that a higher evaluation is not warranted under DC 5253 throughout the appeal period. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7. Entitlement to a TDIU Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340 (a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340 (a)(2). TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16 (a), (b). The above grants of 30 percent for right and left thigh, limitation of motion, effective October 15, 2003, provides the Veteran with a combined rating of 90 percent since October 15, 2003. The Veteran also has a single rating of at least 40 percent due to the Veteran's conditions stemming from a common etiology (avascular necrosis) or after consideration of the bilateral factor. Therefore, the Veteran meets the schedular criteria for TDIU since at least that time. The evidence indicates that the Veteran has not worked since October 1988. In March 2011, the Veteran filed a formal claim for individual unemployablity indicating that he had not worked since 1988. The Veteran stated that he was unable to work due to his avascular necrosis of both hips and both shoulders, his hearing loss, and his leg injury. In August 2010, a letter was submitted by B.Z., D.O. The physician opined that the Veteran's avascular necrosis of both hips and both shoulders caused him to be totally disabled from performing any gainful occupation. The physician stated that he has restricted motion and pain on motion of all four joints. He was noted to be walking without crutches or a cane at this time but was in desperate need of crutches, cane, or walker to aide him in ambulation; however, that is difficult for him because of his shoulder condition. In April 2013, the Veteran submitted an evaluation performed by J. D., M.D. The physician opined that the Veteran has severe end stage avascular necrosis of both hips, with collapse of the femoral head. The Veteran was noted to have severe avascular necrosis of both shoulders as well. The physician stated that the Veteran had been told to consider total hip arthroplasty and that his condition has affected his ability to function to the point that he is significantly incapacitated. The physician noted that he is prescribed 4 tablets of Percocet per day to tolerate the pain that results from his disabilities. The physician opined that the Veteran was totally disabled from all labor-related employment and that due to his need to take narcotics 4 times per day to control his pain that he would be impaired in functioning in most administrative or sedentary occupations. In April 2013, the Veteran also provided a statement from his girlfriend, P.M. She stated that based on her experience as a licensed nursing assistant for 25 years that the Veteran was totally disabled due to his avascular necrosis. She stated that the Veteran's condition causes him to nap at least twice per day and that he has difficulty walking or even sitting for significant periods of time. She stated that the Veteran struggles to complete most simple daily tasks and that he requires Percocet four times per day to deal with his pain. In March 2015, a VA examiner reviewed the Veteran's claims file, including the August 2010 and April 2013 opinions. The examiner stated that based on the Veteran's own reported daily activities he is capable of light physical activities and he is able to keep up with his activities outside of home, including church and doctor's appointments and he continues to drive. Based upon these findings, the examiner stated that the Veteran was capable of sedentary/light physical activities, if he so chooses. While the March 2015 VA examiner opined that the Veteran was capable of sedentary/light physical activities, the Board finds that this opinion is outweighed by the other evidence of record regarding the Veteran's employability. While the Veteran may occasionally be able to attend functions such as church or doctor's appointments, this does not indicate that the Veteran would be able to regularly complete a full-time work week. The Veteran and P.M. have provided statements that the Veteran's conditions cause him fatigue that requires him to lie down at least twice per day. Further, the J.D., M.D. indicated that the Veteran's significant pain medications would impair his ability to concentrate, which is a key component of most sedentary positions. Based upon the foregoing, the Board finds that the probative evidence of record indicates that the Veteran's service-connected conditions cause the Veteran to be unable to secure or follow a substantially gainful occupation. Accordingly, the requirements for a schedular TDIU are met, and the claim is granted. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. § 4.16 (2017). Duties to Notify and Assist Finally, VA has met all statutory and regulatory notice and duty to assist provisions and the Veteran has not asserted otherwise. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). ORDER Entitlement to a 30 percent rating, but not in excess of 30 percent, for limitation of motion of the right thigh is granted. Entitlement to a rating in excess of 10 percent for limitation of adduction of the right hip is denied. Entitlement to a 30 percent rating, but not in excess of 30 percent, for limitation of motion of the left thigh is granted. Entitlement to a rating in excess of 10 percent for limitation of adduction of the left hip is denied. Entitlement to a TDIU is granted, subject to the laws and regulations controlling the disbursement of monetary benefits. REMAND Regrettably, the Board finds that the remainder of the Veteran's claims must be remanded for additional development prior to adjudication by the Board. The Veteran was provided a VA evaluation of his service-connected avascular necrosis of the bilateral shoulders in March 2017; however, this examination appears to be inadequate. The examination indicates that the Veteran had forward flexion of both shoulders from 0 to 90 degrees, and abduction of both shoulders from 0 to 75 degrees. While the examiner noted pain on examination that resulted in functional loss, the examination report does not indicate where painful motion begins and ends. Further, these findings are in stark contrast with findings provided by a private evaluation conducted in August 2015 and a VA surgical consult provided in February 2016. The February 2016 VA consult notes that the Veteran has "exquisitely limited" right and left shoulder flexion, extension, internal/external rotation, abduction, and adduction. As the evidence is unclear, regarding the Veteran's functional limitations, including additional limitation due to pain, the Board finds that a new evaluation should be conducted to determine the current severity of the Veteran's condition. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Undertake appropriate efforts to obtain any pertinent outstanding VA treatment records, including treatment records from the Biloxi VAMC. 2. The Veteran must be afforded an examination to determine the current severity of his service-connected bilateral shoulder disability. The claims file must be made available to the examiner. Any indicated diagnostic tests and studies must be accomplished. All pertinent symptomatology and findings should be reported in detail. The examiner is asked to specifically comment on any additional limitation of motion due to pain and provide findings of where objective evidence of painful motion begins and ends. 3. After taking any further development deemed appropriate, readjudicate the Veteran's claims on appeal. If all benefits sought are not granted, provide the Veteran a supplemental statement of the case and afford him an opportunity to respond before the case is returned to the Board The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2014). ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs