Citation Nr: 1802560 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 16-03 572 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to higher staged initial ratings for limitation of extension of the left hip, rated noncompensable prior to April 6, 2017, and 10 percent therefrom. 2. Entitlement to higher staged initial ratings for limitation of extension of the right hip, rated noncompensable prior to April 6, 2017, and 10 percent therefrom. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Espinoza, Associate Counsel INTRODUCTION The Veteran had active service from June 1973 to December 1984. These matters come before the Board of Veterans' Appeals (Board) on appeal of a January 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran participated in a Central Office hearing in September 2015 with the undersigned Veterans Law Judge (VLJ) concerning the issues of entitlement to a compensable initial rating for limitation of extension of the left hip, entitlement to a compensable initial rating for limitation of extension of the right hip, entitlement to an effective date earlier than July 26, 2013 for the award of service connection for limitation of extension of the left hip, and entitlement to an effective date earlier than July 26, 2013 for the award of service connection for limitation of extension of the right hip. A transcript of the proceeding is associated with the record. The Veteran also participated in a Central Office hearing in April 2009 with another VLJ. However, the April 2009 hearing covered issues separate and distinct from the issues addressed during the September 2015 hearing by the undersigned VLJ. The issues addressed by the April 2009 hearing were remanded by the Board in August 2012 and adjudicated and/or remanded by the Board again in August 2017 and thus will not be addressed by the Board in this decision. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a total disability rating for compensation purposes based on individual unemployability (TDIU) claim is part of an increased rating claim when such claim is raised by the record. The issue of entitlement to a TDIU was remanded by the Board in August 2012 and August 2017 and will be addressed by the Board in a separate decision. Accordingly, entitlement to a TDIU will not be addressed herein. Furthermore, with respect the issues herein, in March 2016, the Board denied the issues of entitlement to an effective date earlier than July 26, 2013 for the award of service connection for limitation of extension of the right hip and limitation of extension of the left hip, and remanded the issues of entitlement to compensable initial ratings for limitation of extension of the right hip and limitation of extension of the left hip, for further development. Also in March 2016, the Board remanded the issues of entitlement to an increased rating in excess of 10 percent for osteoarthritis of the left hip, entitlement to an increased rating in excess of 10 percent for osteoarthritis of the right hip, entitlement to an effective date earlier than July 26, 2013, for the assignment of a 10 percent rating for osteoarthritis of the left hip, and entitlement to an effective date earlier than July 26, 2013 for the assignment of a 10 percent rating for osteoarthritis of the right hip for a statement of the case (SOC) pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). In this regard, a June 2016 SOC was issued addressing these claims; however, the Veteran did not perfect an appeal thereafter, thus these issues are not before the Board. Additionally, a May 2017 rating decision, in pertinent part, granted service connection for impairment of the left hip and for impairment of the right hip and assigned an evaluation of 10 percent each effective April 6, 2017. As the Veteran has not appealed the evaluations or effective dates assigned for these disabilities, they are not before the Board. The May 2017 rating decision, also in pertinent part, granted a 10 percent staged initial evaluation for limitation of extension of the right hip and limitation of extension of the left hip, each effective April 6, 2017. Because these staged initial evaluations do not represent the grant of the maximum benefits allowable under the VA Schedule for Rating Disabilities, the issues of entitlement to higher staged initial ratings for limitation of extension of the right hip and limitation of extension of the left hip remain in appellate status. AB v. Brown, 6 Vet. App. 35, 38 (1993). Additionally, since the most recent May 2017 supplemental statement of the case (SSOC), issued the appeal herein, additional evidence in the form of additional VA treatment records and vocational rehabilitation records were associated with the claims file. The Veteran did not waive Agency of Original Jurisdiction (AOJ) review of this additional evidence. 38 C.F.R. § 20.1304 (c) (2017). However, if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests AOJ consideration. See VBA Fast Letter 14-02. Here, although the Veteran's substantive appeal for the appeal herein was filed after February 2, 2013, the Board interprets such exception as applying only to evidence submitted by the Veteran. The record does not reflect that the additional evidence was submitted by the Veteran. Nevertheless, as such evidence is not relevant and/or is duplicative of prior evidence, a remand for AOJ consideration is not warranted. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's limitation of extension of the left hip has been no worse than 5 degrees. 2. Throughout the appeal period, the Veteran's limitation of extension of the right hip has been no worse than 5 degrees. CONCLUSIONS OF LAW 1. For the appeal period prior to April 6, 2017, the criteria for an initial evaluation of 10 percent, but no higher, for limitation of extension of the left hip, have been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5251 (2017). 2. For the appeal period from April 6, 2017, the criteria for an initial evaluation in excess of 10 percent for limitation of extension of the left hip have not been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5251 (2017). 3. For the appeal period prior to April 6, 2017, the criteria for an initial evaluation of 10 percent, but no higher, for limitation of extension of the right hip, have been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5251 (2017). 4. For the appeal period from April 6, 2017, the criteria for an initial evaluation in excess of 10 percent for limitation of extension of the right hip have not been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5251 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions, including pursuant to 38 C.F.R. § 3.103 (c)(2) (2017) and Bryant v. Shinseki, 23 Vet App 488 (2010). See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Here the veteran is appealing the initial rating assignment as to limitation of extension of his right and left hips. His filing of a notice of disagreement as to the January 2014 determination does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a). Rather, the veteran's appeal as to the initial rating assignments here triggers VA's statutory duties under 38 U.S.C.A. §§ 5104 and 7105, as well as regulatory duties under 38 C.F.R. § 3.103. As a consequence, VA is only required to advise the veteran of what is necessary to obtain the maximum benefit allowed by the evidence and the law. This has been accomplished in this case. Furthermore, there has been substantial compliance with the Board's prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The provisions of 38 C.F.R. § 4.71a, Diagnostic Codes 5250 to 5255 (2017), provide the criteria for rating hip and thigh disabilities. The Veteran's limitation of extension of the left hip and limitation of extension of the right hip are each rated under Diagnostic Code 5251. Under Diagnostic Code 5251, pertaining to limitation of extension of the thigh, a maximum 10 percent rating is appropriate where extension is limited to 5 degrees. Id. Upon review, the evidence of record is consistent with assignment of a 10 percent rating, but no greater, for limitation of extension of the right hip and left hip throughout the rating period on appeal, under 38 C.F.R. § 4.71a, Diagnostic Code 5251. For the period prior to April 6, 2017, the Board acknowledges a January 2014 hip and thigh conditions disability benefits questionnaire found limitation of extension was greater than 5 degrees for each hip, which is not indicative of a 10 percent rating. Similarly, a September 2014 hip and thigh conditions disability benefits questionnaire also found limitation of extension was greater than 5 degrees for each hip. However, the January 2014 examiner did note daily flare-ups but did not quantify such in additional functional loss in degrees but did find the Veteran had no functional loss and/or functional impairment of either hip. However, the January 2014 examiner did not specifically address any functional loss and/or functional impairment with respect to the Veteran's flare-ups and did not provide a rationale for any inability to express an opinion and did not attempt to elicit information from the record or the Veteran regarding the severity, frequency, duration, or functional loss manifestations with respect to such. Jones v. Shinseki, 23 Vet. App. 382 (2010); see also Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The September 2014 examiner did not note any flare-ups or any function loss and/or functional impairment of either hip and found no increased loss of bilateral hip function after repetitive use during future flare-ups or secondary to pain, weakness, fatigue or incoordination. Pursuant to the March 2016 Board remand, an April 6, 2017 hip and thigh conditions disability benefits questionnaire was obtained. The April 2017 hip and thigh conditions disability benefits questionnaire found the Veteran's limitation of extension was 0 to 10 degrees for the right hip and 0 to 15 degrees for the left hip and after repetitive testing, each hip had limitation of extension from 0 to 10 degrees. However, the April 2017 hip and thigh conditions disability benefits questionnaire found, for each hip, pain and lack of endurance limited extension and significantly limit functional ability with repeated use over a period of time to 0 to 5 degrees. Similarly, the April 2017 hip and thigh conditions disability benefits questionnaire found pain and lack of endurance significantly limited the Veteran's functional ability with flare-ups for each hip and opined such effects limited extension 0 degrees to 5 degrees. See DeLuca, 8 Vet. App. at 204-7; 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017). Furthermore, in April 2015, the Veteran testified that he experienced flare-ups, that he experienced weakness, and that he was not able to lay with his legs flat and had to lie on the bed on his side. If credible, lay testimony may consist of a veteran's own statements to the extent that the statements describe symptoms capable of lay observation. Petitti v. McDonald, 27 Vet. App. 415, 424-30 (2015). In this case, there is credible medical and lay evidence of bilateral hip pain and a variety of other functional loss factors throughout the appeal period, including the existence of flare-ups as reported in the January 2014 hip and thigh conditions disability benefits questionnaire which were not quantified in degrees by the examiner. Accordingly, the Board concludes that a 10 percent rating, but no greater, is warranted for the Veteran's limitation of extension of the right hip and left hip throughout the appeal period. 38 C.F.R. § 4.3 (2017). Additionally, concerning the range of motion findings of the Veteran's left hip and right hip joints at issue, the Board notes that the January 2014 and September 2014 hip and thigh conditions disability benefits questionnaires did not include passive range of motion and do not specify range of motion with and without weight-bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016). However, the April 2017 hip and thigh conditions disability benefits questionnaire found objective evidence of pain on passive range of motion testing and on non-weight bearing testing of each hip, although the April 2017 examiner did not quantify such in terms range of motion in degrees. However, the fundamental issue with respect Correia is that VA examinations perform adequate joint testing for pain. Generally, active range of motion testing produces more restrictive results than passive range of motion testing, in that passive range of motion testing requires the physician to force the joint through its motions. There is no indication that the range of motion testing in these examinations was performed other than on weight-bearing. Therefore, there is no prejudice to the Veteran in relying on these VA examinations that involved active range of motion testing because such results tend to produce the "worst case scenario" of impairment and thus would tend to support the highest possible rating. Furthermore, as noted above, 10 percent is the maximum schedular rating available under 38 C.F.R. § 4.71a, Diagnostic Code 5251. It follows that by law, the Veteran cannot be entitled to a higher rating under this diagnostic code. In addition, as alluded to above, the Veteran is separately service-connected for osteoarthritis of each hip under Diagnostic Code 5252 and for impairment of each hip under Diagnostic Code 5253, which are not at issue in this appeal. The Board has also considered other potentially applicable diagnostic codes pertaining to the hip. However, the Veteran does not have, nor does his disability picture more nearly approximate ankylosis, flail joint, or impairment of the femur (Diagnostic Codes 5250, 5254, and 5255). Therefore, these diagnostic codes are inapplicable in this case. See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board's choice of diagnostic code should be upheld so long as it is supported by explanation and evidence). Furthermore, Diagnostic Code 5003 for arthritis is not applicable as the Veteran has also already been awarded a 10 percent rating under Diagnostic Code 5252, as noted above, for limitation of motion related to osteoarthritis of each hip. Further, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record for his right or left hip disabilities. 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). Also, because there is no indication the rating criteria are inadequate with respect to limitation of extension for either hip, there is no inconsistency in not addressing TDIU, which was previously remanded by the Board, as noted above. See Brambley v. Principi, 17 Vet. App. 20, 24 (2003). For these reasons, the Board finds that, for the period prior to, and from, April 6, 2017, the Veteran is entitled to a 10 percent, but no higher, initial evaluation for, each, the left hip and right hip limitation of extension. In making these determinations the Board considered the application of "staged" ratings, but found no distinctive periods where the Veteran's service-connected hip disabilities met or nearly approximated the criteria for a higher initial rating other than that have already been granted. In reaching these decisions the Board considered the doctrine of reasonable doubt, however, to the extent the preponderance of the evidence is against ratings higher than or separate from those already assigned for the right and left hip disabilities, the doctrine is not for application. See 38 U.S.C. §§ 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER For the appeal period prior to April 6, 2017, entitlement to an initial evaluation of 10 percent, but no higher, for limitation of extension of the left hip, is granted, subject to the law and regulations governing the payment of monetary benefits. For the appeal period from April 6, 2017, entitlement to an initial evaluation in excess of 10 percent for limitation of extension of the left hip is denied. For the appeal period prior to April 6, 2017, entitlement to an initial evaluation of 10 percent, but no higher, for limitation of extension of the right hip, is granted, subject to the law and regulations governing the payment of monetary benefits. For the appeal period from April 6, 2017, entitlement to an initial evaluation in excess of 10 percent for limitation of extension of the right hip is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs