Citation Nr: 1800973 Decision Date: 01/08/18 Archive Date: 01/19/18 DOCKET NO. 10-28 263 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for right hip tendonitis. 2. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD E. Mine, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1974 through February 1978, September 1999 through October 1999, May 2006 through October 2006, and February 2008 through December 2008. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Board remanded the issues on appeal for additional development in February 2013. In an August 2017 brief, the Veteran's representative stated that the Veteran had requested a hearing for the issues on appeal. However, The Veteran testified at a November 2012 videoconference hearing before the undersigned Veterans Law Judge (VLJ) and no hearing request for the issues on appeal has been received since. The Board notes that the Veteran has an additional appeal pending for an unrelated issue and has requested a hearing on that matter. The Board believes that the representative's statement was merely an error due to not realizing that a hearing on the issues discussed herein had already occurred. The Board notes that a subsequent brief was submitted in September 2017 on these issues that made no reference to a pending hearing request. The Board also notes that the Veteran has a pending appeal for entitlement to service connection for a right shoulder condition; however, as the Veteran has not asserted that this condition has contributed to his inability to secure or follow a substantially gainful occupation, the Board finds that remand of the claim for entitlement to TDIU prior to the adjudication of that claim is not necessary. FINDINGS OF FACT 1. The Veteran's right hip tendonitis is manifested by limitation of motion and pain with flexion at worst 125 degrees; flexion does not more nearly approximate 30 degrees and there is extension better than 5 degrees, ability to rotate toe out more than 15 degrees, adduction that allows crossing of legs, abduction better than 10 degrees, and no ankylosis. 2. The preponderance of the evidence is against a finding that the Veteran's service-connected disabilities rendered him unable to secure or follow substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for right hip tendonitis are 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 5024 (2017). 2. The criteria for entitlement to a TDIU are not met, and referral to the Director of Compensation Service for extraschedular consideration is not warranted. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Regarding the duty to notify, once a claim of service connection has been granted, the filing of a notice of disagreement with the RO's rating of a disability does not trigger additional 38 U.S.C. § 5103 (a) notice. See 38 C.F.R. § 3.159 (b)(3). Therefore, further VCAA notice is not applicable in the Veteran's claim for a higher initial rating for right hip tendonitis. See id.; see also, e.g., Dunlap v. Nicholson, 21 Vet. App. 112, 116-117 (2007); Goodwin v. Peake, 22 Vet. App. 128, 136 (2008). In a September 2017 brief, the Veteran's representative noted that the Veteran was last afforded a VA examination in 2015 and asserted the Veteran's right hip condition had worsened since. The representative argued that the Veteran was therefore entitled to a new VA examination to determine the current severity of his condition However, as discussed in depth below, there is no objective evidence of worsening of the Veteran's right hip tendonitis since the September 2015 VA examination, nor any specific allegations of worsening from the Veteran. The representative merely made a generalized statement in presenting argument to the Board that the Veteran's condition had worsened and a new examination was needed. As there is no evidence of a material change in condition since the last VA examination for the service-connected back disability, a remand for another VA examination is not warranted. See Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007) (mere passage of time does not require VA to provide a new medical examination); VAOPGCPREC 11-95 (interpreting that a new examination is appropriate when there is an assertion of an increase in severity since the last examination). Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). The Board's February 2013 remand instructions have been complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the Board will address the merits of the claim. II. Increased Rating for Right Hip Tendonitis Service connection for right hip tendonitis was initially granted effective December 2, 2008, with a 10 percent initial disability rating. The Veteran asserts that he is entitled to a higher disability rating. At the outset, the Board notes that the Veteran's initial claim for service connection was for a right hip disorder with radiculopathy. Since the initial grant of service connection for right hip tendonitis, the Veteran has been separately granted service connection for radiculopathy of the right lower extremity. That issue is not currently before the Board and therefore the Board will not address the symptoms associated with any radicular pain. 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. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings applies, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Moreover, staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). In instances where the rating being appealed is the initial disability rating assigned for a newly service-connected disability, the entire appeal period is for consideration, and again, staged ratings may be assigned as warranted, based upon the facts found. See Fenderson v. West, 12 Vet. App. 119 (1999). Rating factors for a disability of the musculoskeletal system include functional loss due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakness, excess fatigability, incoordination, pain on movement, swelling, or atrophy. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Court also has held that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination[, or] endurance." Id., quoting 38 C.F.R. § 4.40. The Veteran' s initial 10 percent disability rating for the service-connected right hip was assigned based on the criteria of Diagnostic Code 5024. Diagnostic Code 5024 states that tenosynovitis will be rated on limitation of motion of affected parts, as arthritis, degenerative. Disorders of the hips are rated under Diagnostic Codes 5250 through 5255 of 38 C.F.R. § 4.71a. Hip flexion is measured from 0 degrees to 125 degrees; abduction is measured from 0 degrees to 45 degrees. 38 C.F.R. § 4.71a, Plate II. Diagnostic Code 5250 contemplates ankylosis of the hip. Favorable ankylosis in flexion at an angle between 20 degrees and 40 degrees, and slight adduction or abduction warrants a 60 percent rating; intermediate ankylosis warrants a 70 percent rating; and unfavorable ankylosis, which contemplates extremely unfavorable ankylosis, the foot not reaching ground, crutches necessitated, warrants a 90 percent rating. Under Diagnostic Code 5251 (limitation of extension of the thigh), a 10 percent rating is assigned with extension limited to 5 degrees. Under Diagnostic Code 5252 (limitation of flexion of the thigh), a 10 percent rating is assigned with flexion limited to 45 degrees; a 20 percent rating is assigned with flexion limited to 30 degrees; a 30 percent rating is assigned with flexion limited to 20 degrees; and a 40 percent rating is assigned with flexion limited to 10 degrees. Under Diagnostic Code 5253, pertaining to impairment of the thigh, a 10 percent rating is warranted for limitation of adduction of the thigh such that the legs cannot be crossed or there is limitation of rotation such that it is not possible to toe out more than 15 degrees; a 20 percent rating requires limitation of abduction with motion lost beyond 10 degrees. An 80 percent disability rating will be assigned under Diagnostic Code 5254 when there is a flail joint of the hip. Diagnostic Code 5255 contemplates impairment of the femur. Malunion of the femur warrants a 10 percent rating with slight knee or hip disability, a 20 percent rating with moderate knee or hip disability, and 30 percent rating with marked knee or hip disability. 38 C.F.R. § 4.71a. The terms "moderate" and "marked" are not defined in the VA Schedule. Rather than applying a mechanical formula, it is incumbent upon the Board to arrive at an equitable and just decision after having evaluated the evidence. 38 C.F.R. § 4.6. Terminology such as "moderate" and "marked" used by VA examiners and others, although an element of evidence to be considered by the Board, are not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Turning to the evidence of record, an August 2008 service treatment record shows that the Veteran complained of hip pain, but was able to walk and had full range of motion. He reported that prolonged standing or sitting caused numbness. During a July 2009 VA examination, the Veteran reported weakness, stiffness, giving way, and pain. He did not experience swelling, heat, redness, lack of endurance, locking, fatigability, deformity, tenderness, drainage, effusion, subluxation, and dislocation. He did report experiencing flare-ups as often as four times month, each lasting for three days. The Veteran indicated that the flare-ups were precipitated by physical activity and stress, and were alleviated by rest. He reported that during flare-ups he experienced the limitation of motion, which he described as an inability to perform gardening, lawn care, or shop work. He reported difficulty with standing and walking. The Veteran described right leg and foot numbness and tingling. He stated that his condition had not resulted in any incapacitation. The Veteran reported that his overall functional impairment was an inability to perform physical activities when his pain was severe. On physical examination, the Veteran had tenderness and guarding of movement. There was no edema, instability, abnormal movement, effusion, weakness, redness heat, deformity, malalignment, drainage, or subluxation. Range of motion testing showed flexion to 125 degrees, adduction to 25 degrees, abduction to 45 degrees, external rotation to 60 degrees, and internal rotation to 40 degrees. After repetitive use testing, the Veteran had additional pain, but no additional loss of range of motion. The Veteran's left hip was also examined and had identical range of motion, but no other symptoms. During a July 2011 VA pain clinic visit, the Veteran reported nearly no pain in his right hip. During a November 2012 hearing the Veteran testified that his hip disability interfered with his ability to do his job as a postal employee. He stated that his job required prolonged standing, walking, and twisting, all of which increased pain in his right hip. He reported that the increased pain interfered with his other daily activities. The Veteran also described radiating pain down his right leg, which he described as a burning sensation. In an August 2013 private treatment record, the Veteran's right hip was tender on palpation. In a December 2014 VA treatment record, active range of motion testing showed no restriction in movement. Strength testing showed abduction strength of 4+ out of five, but was otherwise normal. In a January 2015 VA treatment record, the Veteran described a dull, achy pain deep in his right hip joint, but active range of motion testing showed no restriction in movement and muscle strength testing was normal. A February 2015 VA treatment record noted full range of motion in the Veteran's hips. The Veteran was afforded a VA examination for his right hip disability in September 2015. The Veteran reported that he did not have flare-ups. Range of motion testing showed normal flexion, extension from 0 to 20 degrees, normal abduction, and normal adduction. Adduction was not limited such that the Veteran could not cross his legs. External rotation was normal and internal rotation was 0 to 20 degrees. The examiner found that the loss of range of motion did not contribute to a functional loss. No pain was noted on the examination. There was no pain on weight bearing. The Veteran had pain and tenderness in the sciatic notch, posterior trochanter, and posterior iliac spine. There was no evidence of crepitus. The Veteran was able to perform repetitive use testing with three repetitions with no additional loss of range of motion. The Veteran was examined immediately after repetitive use over time, after which pain, weakness, fatigability or incoordination did not significantly limit functional ability. Muscle strength testing was normal. No ankylosis was found. The examiner noted that the Veteran did not have malunion or nonunion of femur, flail hip joint, or a leg length discrepancy. The Veteran used a brace regularly. Testing of the Veteran's non-service-connected left hip showed identical loss of range of motion. The Veteran reported that he had worked as a letter carrier for the USPS from 1985 to 2013. He indicated that he retired due to his hip disability. He stated that he was not seeking employment because his hip was still bothering him daily. The examiner found no neurological pathology related to the Veteran's hip. The examiner reported that there was no hip pathology that would render the Veteran unemployable. During a June 2017 VA examination for right lower extremity radiculopathy, muscle strength testing showed that the Veteran's right hip had normal strength on flexion. In view of the above complaints and findings, the Board finds that neither the lay nor the medical evidence of record more nearly approximates the criteria for an evaluation in excess of 10 percent right hip disability. The Veteran's current 10 percent rating is predicated on arthritis with limitation of hip motion that is noncompensable disabling. The evidence shows that the Veteran had at worst 125 degrees of flexion, with no objective evidence of pain on motion. Therefore the evidence does not reflect the criteria for the next higher rating based on limitation of flexion. 38 C.F.R. § 4.71a, Diagnostic Codes 5252. Additionally, the Board finds that a higher rating is not warranted under any other potentially applicable schedular criteria in the absence of ankylosis, limitation of extension to 5 degrees or less, abduction lost beyond 10 degrees, adduction that does not allow crossing of legs, and rotation that does not allow toe out more than 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5250, 5251, and 5253. Nor is there any indication of hip flail joint or impairment of femur. 38 C.F.R. § 4.71a, Diagnostic Codes 5254, 5255. The Board also finds that there is no basis for assigning a higher rating based on consideration of any of the factors addressed in 38 C.F.R. §§ 4.40, 4.45, and DeLuca, 8 Vet. App. at 204-7. Competent medical evidence reflects that the assigned 10 percent rating properly compensates the Veteran for the extent of functional loss resulting from any such symptoms. In this regard, while the Veteran reported experiencing flare-ups during the July 2009 VA examination, which he asserted caused a decrease in his range of motion, there is no indication that this reported decrease would warrant a higher rating. Moreover, during the September 2015 VA examination, the Veteran did not report experiencing flare-ups. Additionally, while the Veteran displayed objective evidence of painful motion after reptetive testing during the July 2009 VA examination, both the July 2009 and September 2015 VA examiner found that the Veteran was able to perform repetitive use testing with no additional loss of function or range of motion. Therefore, the Board finds that the Veteran's functional loss does not meet the criteria for the next higher evaluation. See 38 C.F.R. § 4.71a, Diagnostic Code 5024. And, accordingly, the preponderance of the evidence is against assignment of an increased initial evaluation in excess of 10 percent for the Veteran's service-connected right hip tendonitis. III. Entitlement to TDIU The Veteran has claimed that he became unable to work due to his service-connected bilateral plantar fasciitis, degenerative disc disease of the lumbar spine, and right hip tendonitis in December 2013. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15. "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a). A total disability rating for compensation may be assigned, where the schedular rating is less than total, 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, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a) (2016). Where the schedular criteria set forth above are not met, but a veteran is nonetheless found to be unemployable by reason of service-connected disabilities, VA shall submit the case to the Director of Compensation Service for extraschedular consideration. See 38 C.F.R. § 4.16 (b). The Veteran's service-connected disabilities are bilateral hearing loss, rated as non-compensable from April 9, 1982, to September 29, 1999, and from October 18, 1999, to December 23, 1999, as 30 percent from December 23, 1999, to May 6, 2006, and October 15, 2006, to February 19, 2008, and from December 2, 2008; degenerative disc disease, lumbar spine, rated 10 percent from December 2, 2008, and 20 percent from May 9, 2017; right hip tendonitis rated as 10 percent from December 2, 2008; bilateral plantar fasciitis rated as 10 percent from December 2, 2008; tinnitus rated as 10 percent April 9, 1982, to September 29, 1999, and from October 18, 1999, to May 6, 2006, and October 15, 2006, to February 19, 2008, and from December 2, 2008; hypertension rated as 10 percent from June 30, 2010; radiculopathy of the right lower extremity rates as 10 percent from May 9, 2017, and tinea pedis rated as non-compensable from December 2, 2008. For the relevant period on appeal, from December 1, 2013, to May 9, 2017, the Veteran's combined evaluation for VA compensation was been 60 percent, and has been 70 percent since May 9, 2017; however, none of the Veteran's service-connected disabilities have been rated at 40 percent or more. Therefore, the Veteran does not meet the schedular criteria for a TDIU under 38 C.F.R. § 4.16 (a). Nevertheless, entitlement to a TDIU may be considered on an extraschedular basis. See 38 C.F.R. § 4.16(b). In addition to the above-noted facts, in his April 2016 Application for Increased Compensation Based on Unemployability, the Veteran asserted that he was unable to secure or follow any substantial gainful occupation due to his service-connected bilateral plantar fasciitis, degenerative disc disease of the lumbar spine, and right hip tendonitis. He reported that he had worked as a city carrier for the United States Postal Service from March 1985 until December 1, 2013. The Veteran stated that he had completed two years of high school and had no other education. In response to a September 2016 Request for Employment Information in Connection with Claim for Disability, the U.S Postal Service indicated that the Veteran was employed by the United States Postal Service from March 1985 until December 01, 2013, as a carrier technician, when he retired. Although dated prior to December 2013, when the Veteran has asserted he became unable to work, the Board finds relevant March 2013 records. In a March 2013 form, the Veteran indicated that his bilateral plantar fasciitis, degenerative disc disease of the lumbar spine, and his right hip tendinitis would prevent him from working three days each month. He reported that his conditions interfered with his ability to stand, walk, bend, stoop, and lift for long periods. He stated that his symptoms had an eight hour duration. In a form dated in March 2013, the Veteran's private physician reported that above referenced disabilities resulted in an incapacitation from February 25 to February 26, 2013. The physician opined the Veteran's bilateral plantar fasciitis, degenerative disc disease of the lumbar spine, and his right hip tendinitis could result in episodes of pain up to three times per month that would result in an inability to walk, stand, bend, stoop, or lift for long periods of time, which would prevent the performance of regular duties. In a September 2017 brief, the Veteran's representative asserted that the Veteran was entitled to TDIU due to service-connected bilateral plantar fasciitis, degenerative disc disease of the lumbar spine, and right hip tendonitis. The representative argued that the Veteran was offered the opportunity to retire from the United States Postal Service due to his inability to work as a result of his service-connected disabilities, which he took. The Board acknowledges the Veteran's assertions that he is unable to work due to his service-connected disabilities, including his lay statements that he took optional early retirement, and has not sought employment since, due to his hip condition. However, the Board finds that the objective medical evidence of record offers the strongest and most persuasive evidence regarding the impact of the Veteran's service-connected disabilities on his occupational functioning. During a September 2015 VA examination for his bilateral plantar fasciitis, the disability was described as mild bilaterally. The Veteran used no assistive devices. The examiner reported that the functional impact of bilateral plantar fasciitis was difficulty walking for an extended time. During a September 2015 VA examination for his right his tendonitis, the Veteran reported that he had worked as a letter carrier for the USPS from 1985 until 2013. He indicated that he retired due to his hip disability. He stated that he was not seeking employment at the time because his hip was still bothering him daily. In discussing the Veteran's ability to work, the examiner analogized the Veteran's disability to a hip replacement, noting that even with a hip replacement, with work restrictions or accommodations and proper physical therapy, an individual should be able to return to an active lifestyle. The examiner opined that there was no hip pathology that would render the Veteran unemployable. During a September 2016 VA examination for his service-connected degenerative disc disease, the examiner noted that the Veteran had episodes of bedrest in the prior 12 months with a total duration of less than one week. The examiner reported that the functional impact of the Veteran's disability was difficulty with heavy lifting, if the work required. During a June 2017 VA examination for right lower extremity radiculopathy the Veteran reported difficulty with heavy lifting and carrying. Based on these VA examination reports, the Veteran would not be precluded from securing or maintaining substantial gainful employment on account of his service-connected disabilities. The Board acknowledges that the Veteran could be precluded from physically demanding work that included heavy lifting, or walking, standing, bending, stooping, for an extended time. However, the examiners' opinions do not indicate that the Veteran would be prevented from securing or maintaining substantial gainful employment in any capacity, to include sedentary work. The Board has also considered the Veteran's occupational and educational history. As noted above, the Veteran's full-time employment has included working as a letter carrier. Additionally, according the Veteran's statements, he only completed two years of high school. While the Board acknowledges that the Veteran's prior work experience does not appear to specifically include clerical, administrative, or other sedentary type of work, there is no indication that the Veteran would be unable to perform such work given his educational background. Therefore, the objective evidence of record does not support a finding that the Veteran's service-connected disabilities would prevent him from securing or following any type of substantially gainful employment. Instead, the evidence indicates that more likely than not, the Veteran would be able to secure or follow, at a minimum, sedentary employment. In sum, while the evidence of record, including the Veteran's statements, indicates that his service-connected disabilities have impacted his ability to engage in physically demanding employment, it weighs against a finding that his service-connected disabilities alone have prevented him from obtaining or sustaining any kind of employment, including sedentary employment. Thus, as the record of evidence does not suggest that the Veteran has been rendered unemployable by reason of service-connected disabilities at any time during the pendency of the appeal, the Board is not required to submit his claim to the Director of Compensation Service for extraschedular consideration under 38 C.F.R. § 4.16(b). ORDER Entitlement to an initial evaluation in excess of 10 percent for right hip tendonitis is denied. Entitlement to a TDIU is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs