Citation Nr: 1802604 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 10-19 702 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an increased initial rating for osteoarthritis and bursitis of the right hip and thigh based on limitation of flexion, rated as 10 percent disabling prior to June 21, 2016 and 30 percent disabling thereafter. 2. Entitlement to an increased initial rating for osteoarthritis and bursitis of the right hip and thigh based on limitation of abduction, rated as 20 percent disabling from June 21, 2016. 3. Entitlement to an increased initial rating for osteoarthritis and bursitis of the right hip and thigh based on limitation of extension, rated as 10 percent disabling from June 21, 2016. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from March 1980 to March 2008. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In January 2016, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing at the Board's Central Office in Washington, D.C. A transcript of the hearing is of record. The Board remanded the case for further action by the originating agency in March 2016 and April 2017. The case has now returned to the Board for further appellate action. FINDINGS OF FACT 1. Prior to June 21, 2016, the Veteran's osteoarthritis and bursitis of the right hip and thigh manifested painful limited motion with flexion greater than 45 degrees, extension greater than 5 degrees, rotation greater than 15 degrees, abduction greater than 10 degrees, and the ability to cross his legs without ankylosis, flail joint, or impairment of the femur. 2. From June 21, 2016, the Veteran's osteoarthritis and bursitis of the right hip and thigh manifested pain and limitation of flexion that most nearly approximates 30 degrees without ankylosis, flail joint, or impairment of the femur. 3. From June 21, 2016, the Veteran's osteoarthritis and bursitis of the right hip and thigh manifested pain and impairment of the thigh that most nearly approximates limitation of abduction with motion lost beyond 10 degrees. 4. From June 21, 2016, the Veteran's osteoarthritis and bursitis of the right hip and thigh manifested pain and limitation of extension that most nearly approximates 5 degrees. CONCLUSIONS OF LAW 1. The criteria for an initial rating greater than 10 percent prior to June 21, 2016 and 30 percent thereafter for osteoarthritis and bursitis of the right hip and thigh based on limitation of flexion are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.13, 4.40, 4.45, 4.71a, Diagnostic Codes 5250-5255 (2017). 2. The criteria for an initial rating greater than 20 percent for osteoarthritis and bursitis of the right hip and thigh based on limitation of abduction from June 21, 2016 are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.13, 4.40, 4.45, 4.71a, Diagnostic Codes 5253. 3. The criteria for an initial rating greater than 10 percent for osteoarthritis and bursitis of the right hip and thigh based on limitation of extension from June 21, 2016 are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.13, 4.40, 4.45, 4.71a, Diagnostic Codes 5251. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has certain duties to notify and assist a Veteran in the substantiation of a claim. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012). VA regulations for the implementation of the duties to notify and assist are codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In an October 2016 statement, the Veteran contends that the June 2008 VA medical examination of his right hip is inadequate as the examiner did not conduct range of motion tests of the right hip and thigh and did not adequately account for his pain with motion. The Board finds that the June 2008 VA examination is adequate for rating purposes. Contrary to the Veteran's contentions in the October 2016 statement, the June 2008 VA examination report includes range of motion measurements for the right hip and thigh including flexion, extension, abduction, and adduction, and notes the point at which pain began during testing. The examination report also documents the Veteran's reports of constant right hip pain and limitation to functioning including increased pain with sitting and standing and an inability to play sports. The Veteran may disagree with the findings of the examiner and has provided lay evidence regarding the severity of his disability during the applicable period, but his disagreement does not alone render the examination inadequate. Accordingly, the examination report is adequate for the purpose of rating the disability on appeal. The Board further notes that the Veteran was provided two additional VA examinations of his right hip in June 2016 and May 2017 and has expressed satisfaction with these examination results. 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). Increased Rating Claims Service connection for right hip bursitis with a history of fracture was awarded in the November 2008 rating decision on appeal. An initial 10 percent evaluation was assigned effective April 1, 2008-the day after the Veteran's discharge from active duty service. In September 2016, the Appeals Management Center (AMC) issued a rating decision granting increased and separate ratings for the Veteran's right hip disability. The service-connected bursitis was recharacterized as limitation of flexion, osteoarthritis with bursitis of the right hip, and increased to 30 percent disabling from June 21, 2016. A separate 20 percent evaluation for limitation of abduction of the right hip was granted effective June 21, 2016 and a separate 10 percent evaluation for limitation of extension of the right hip was also granted, again effective June 21, 2016. The Veteran is therefore in receipt of three separate ratings for his service-connected right hip bursitis and osteoarthritis from June 21, 2016. He contends that increased ratings are warranted as his right hip disability manifests painful limited motion and functional impairment that is more severe than contemplated by the current ratings. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability ratings. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 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). However, where, as here, the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). As a preliminary matter, the Board notes that the Veteran has never manifested ankylosis of the right hip and none of the medical evidence (including X-rays, CTs, and examination findings) demonstrates the presence of a flail joint or impairment of the femur, to include fractures or malunion. The June 2016 and May 2017 VA examiners specifically found that these conditions were not present, and the Board finds that Diagnostic Codes 5250, 5254, and 5255 are not for application. Instead, the Board must determine whether increased ratings are warranted for the Veteran's hip disability under Diagnostic Codes 5251-5253 pertaining to limitation of motion and impairment of the thigh. Normal ranges of motion of the hip are for hip flexion from 0 degrees to 125 degrees and hip abduction from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. Limitation of motion of the hip or thigh may be rated under Diagnostic Code 5250 (ankylosis of the hip), Diagnostic Code 5251 (limitation of extension), 5252 (limitation of flexion), or Diagnostic Code 5253 (impairment of the thigh). Diagnostic Code 5251 provides a 10 percent disability rating for limitation of extension of the thigh that is limited to 5 degrees. 38 C.F.R. § 4.71a. Diagnostic Code 5252 provides ratings based on limitation of flexion of the thigh. A 10 percent disability rating is for flexion of the thigh that is limited to 45 degrees; a 20 percent rating is for flexion of the thigh that is limited to 30 degrees; a 30 percent rating is for flexion of the thigh that is limited to 20 degrees; and a 40 percent rating is for flexion of the thigh that is limited to 10 degrees. Id. Under Diagnostic Code 5253, impairment of the thigh may be rated based on limitation of abduction, limitation of adduction, or limitation of rotation. A 10 percent rating will be assigned for limitation of rotation where the individual cannot toe-out more than 15 degrees on the affected leg, or for limitation of adduction where the individual cannot cross the legs. A 20 percent rating will be assigned for limitation of abduction where there is motion lost beyond 10 degrees. Id. As noted above, the Veteran is currently in receipt of three separate ratings for the service-connected right hip disability. The first rating, currently characterized as limitation of flexion, was initially assigned for general noncompensable limitation of motion of the hip under Diagnostic Code 5019-5252. Under this diagnostic code, the Veteran's disability is evaluated as 10 percent disabling prior to June 21, 2016 and 30 percent disabling thereafter. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. 38 C.F.R. § 4.27. Here, the hyphenated diagnostic code indicates that the Veteran's bursitis is rated as rheumatoid arthritis (Diagnostic Code 5002) in accordance with Diagnostic Code 5019. The Board will begin its discussion by discussing the period prior to June 21, 2016 and whether an increased rating is warranted under Diagnostic Code 5019-5252. Prior to June 21, 2016, the Veteran's right hip bursitis was assigned a 10 percent rating under Diagnostic Code 5019-5522 for noncompensable limitation of motion. Diagnostic Code 5019 pertaining to bursitis provides for rating the disability as analogous to rheumatoid arthritis and Diagnostic Code 5002. Under Diagnostic Code 5002 (chronic residuals from rheumatoid arthritis), a 10 percent rating is for application for each major joint affected by limitation of motion that is noncompensable under the specific codes for the specific joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5002, 5019. In other words, if a veteran manifests limitation of motion that does not most nearly approximate the criteria for a compensable rating under the criteria pertaining to the hip, a 10 percent evaluation is still assigned under Diagnostic Code 5002. After review of the record, the Board finds that the Veteran's limitation of motion of the right hip was noncompensable prior to June 21, 2016 and a 10 percent rating under Diagnostic Code 5019-5252 is appropriate. The Veteran's treatment records during and after service support the finding of noncompensable limitation of motion prior to June 21, 2016. He was first diagnosed with a right hip fracture in July 2005, after falling down while running, sliding down a hill, and hitting a tree stump. A right hip X-ray demonstrated an avulsion fracture of the right acetabular rim of uncertain age; this finding was confirmed by a CT report two months later in September 2005. In October 2007, the Veteran was seen with progressive right hip pain. Flexion of the right hip was measured to 100 degrees with decreased external rotation. The Veteran was then referred to an orthopedist and a November 2007 examination showed abnormal motion with decreased rotation without deformity, instability, weakness, and a normal gait. Two months later, in December 2007, when the Veteran returned to the orthopedic clinic with complaints of right knee pain, his right hip movement was characterized as "right hip motion ok without pain...[m]ild lateral hip tenderness." Similar findings were noted at the last right hip examination before discharge in February 2008. After service, the Veteran did not receive any specific treatment for his right hip condition other than refills of prescribed medication. Upon VA examination in June 2008, the Veteran's right hip manifested movement with flexion full to 125 degrees without pain, extension to 30 degrees, full abduction to 45 degrees, and adduction to 25 degrees. Other than flexion, when no pain was reported, the Veteran experienced pain at the endpoint of range of motion testing. The medical evidence prior to June 21, 2016 therefore demonstrates some limitation of flexion to 100 degrees during an October 2007 orthopedic service examination and some limitation to rotation in October and November 2007. There are no other specific findings of limited motion of the right hip during this period. Limitation of flexion to 100 degrees is not compensable under Diagnostic 5252 and there is no evidence of limited extension under Diagnostic 5251. Additionally, while the Veteran had some limitation of rotation during service, there is no evidence that rotation was restricted to the extent that the Veteran was unable to toe-out more than 15 degrees, adduction was limited such that the Veteran could not cross his legs, or abduction was limited with motion lost beyond 10 degrees as contemplated by a compensable rating under Diagnostic Code 5253, impairment of the thigh. 38 C.F.R. § 4.71a, Diagnostic Code 5253. There is also no medical evidence of a compensable limitation of motion, even with consideration of functional factors. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability, and incoordination. The June 2008 VA examiner recorded the point at which the Veteran complained of pain during range of motion testing, with full motion possible before the onset of pain. While repetitive testing was not specifically performed, the Board notes that the examiner noted that the Veteran's right hip was stable without weakness, giving out, locking, or a lack of endurance. The examiner also found that the Veteran did not require a brace or corrective device and the disability had no effect on the Veteran's employment. Therefore, even with consideration of functional factors, the Board cannot find that the Veteran's right hip disability most nearly approximated the criteria associated with compensable limitation of motion, especially in light of the specific findings of the October and November 2007 service orthopedist and the June 2008 VA examiner. The Board has also considered the lay statements of the Veteran pertaining to this period. In statements and testimony before the Board, the Veteran has described experiencing constant pain of the right hip with increased pain during prolonged sitting and standing. The Board has considered these reports and notes that the June 2008 VA examiner recorded similar complaints of constant pain and functional impairments. However, the Board finds that the medical evidence, based on objective testing and recorded by medical professionals including the Veteran's service orthopedist, is more probative regarding the specific limitations of motion and functional impairment manifested by the right hip disability during the claims period. The Veteran's complaints of pain and restricted motion are contemplated by the currently assigned 10 percent evaluation under Diagnostic Codes 5019-5252 and an increased evaluation is not warranted based on the Veteran's lay statements prior to June 21, 2016. The Board therefore finds that a rating in excess of 10 percent is not warranted during the period prior to June 21, 2016 under any applicable Diagnostic Code as the Veteran manifested noncompensable limitation of motion of the right hip. Accordingly, under Diagnostic Codes 5019-5252, the current single 10 percent evaluation is appropriate under Diagnostic Code 5002 and 5019-5252 for noncompensable limitation of motion of a major joint. The Board will now turn to the period dating from June 21, 2016 and whether increased ratings are warranted under Diagnostic Codes 5251, 5252, or 5253. With respect to Diagnostic Code 5251, the Veteran is currently in receipt of the maximum 10 percent evaluation possible. Therefore, an increased rating is not possible based on limitation of extension. Similarly, the Veteran is in receipt of the maximum 20 percent evaluation possible under Diagnostic Code 5253 for impairment of the thigh and a higher rating is not possible. As discussed above, the Board has determined that the Veteran manifested noncompensable limitation of motion prior to June 21, 2016 and additional ratings are not warranted under Diagnostic Codes 5251 and 5253 during the earlier claims period. Turning to Diagnostic Code 5252 and limitation of flexion, the Board finds that the Veteran's limitation of motion has not most nearly approximated the criteria for a rating in excess of 30 percent during the period from June 21, 2016. The Veteran manifested flexion limited to 20 degrees upon VA examinations in June 2016 and May 2017. Both examiners noted the presence of pain with functional loss during testing, but there was no additional loss of motion following repetitive testing and the Veteran did not report any specific flare-ups of the disability other than noting worsening pain with activity and prolonged standing and sitting. The June 2016 VA examiner specifically found that pain, weakness, fatigability, or incoordination did not significantly limit the Veteran's functional ability with repeated use over a period of time. The May 2017 VA examiner also noted that the Veteran manifested less movement than normal and weakened movement due to hip pain, but again, the Veteran did not manifest any additional loss of motion with repetitive testing. Thus, even with consideration of functional factors, the Board finds that the Veteran's limitation of flexion of the right hip most nearly approximates the current 30 percent evaluation assigned consistent with flexion limited to 20 degrees. The Board also finds that the Veteran's complaints of pain and functional limitations are contemplated by the 30 percent evaluation, as well as the other two separate Diagnostic Codes that pertain to limitation of extension and impairment of the thigh. The Board has considered whether there is any other schedular basis for granting a higher rating, but has found none. In addition, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claims for increased ratings. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. Extraschedular Rating In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court of Appeals for Veterans Claims (Court) has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board may not assign an extra-schedular rating in the first instance, but must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). In this case, the issue of extraschedular ratings was raised by the Veteran's representative in a February 2017 post-remand brief. Although the representative clearly raises the issue of the applicability of an extraschedular rating, the February 2017 brief does not provide any specific argument in support of the claim, but rather states that "the [v]eteran's range of motion is clearly more limited than the schedular evaluation criteria takes into consideration and the veteran has noted that he is being referred for surgical treatment of the hip..." These statements appear to argue for a higher schedular rating based on increased limitation of motion, but as the Veteran and his representative have specifically raised the issue of an extraschedular rating, the Board will address it. See Yancy v. McDonald, 27 Vet. App. 484 (2016) ( the Board is not obligated to analyze whether extraschedular referral is warranted in all cases, but only if the issue is argued or raised by the record). With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that renders the available schedular evaluations for the service-connected hip condition inadequate. A comparison between the level of severity and symptomatology of the Veteran's orthopedic disabilities and the rating criteria reasonably describe his disability level and symptomatology. As noted in the analysis regarding the Veteran's schedular ratings, his arthritis and bursitis are productive of pain and limited motion. These symptoms result in impairment to functional use for activities such as prolonged sitting and standing. These manifestations are all specifically contemplated in the schedular criteria pertaining to disabilities of the musculoskeletal system generally and the hip specifically. See 38 C.F.R. §§ 4.71a, 4.124a. With respect to the Veteran's contention in an October 2016 statement that his disability has progressed to the point that he was referred for a hip replacement, the Board does not find any record of this in the claims file. The Veteran states that during his last visit to the federal Fort Belvoir Sports Medicine Clinic in the summer of 2016, he was referred to an orthopedist surgeon for an evaluation for hip replacement surgery. Review of the Veteran's treatment records during this period show that he was treated during the summer of 2016 with physical therapy for right shoulder impingement syndrome and was recommended to undergo a knee replacement in February 2016. In fact, there is no evidence of specific treatment for his right hip in the treatment files other than refills of his pain medication. The Veteran also stated in October 2016 that he had not scheduled the orthopedic consultation for his hip and has not otherwise indicated that such a consultation took place. The Veteran is competent to report that he received a referral for a hip replacement surgery, but has not alleged any symptomatology necessitating surgery beyond pain and limitation of motion-symptoms that are specifically contemplated by the relevant schedular criteria in this case. With consideration of all of the above, the Board finds that referral for consideration of an extraschedular rating is not warranted in this case. The Veteran's service-connected disabilities are productive of symptoms and impairment that are specifically contemplated in the rating criteria and do not render the schedular criteria inadequate. The Board has determined that referral is not warranted as the first element of the Thun analysis is not satisfied, and it therefore need not address the second and third elements. See Doucette v. Shulkin, 28 Vet. App. 366 (2017); see also Yancy at 494 ("Although the first and second Thun elements are interrelated, they 'involve separate and distinct analysis,' and '[i]f either element is not met, then referral for extraschedular consideration is not appropriate.'"). As a final matter, the Board also finds that the record does not raise a claim for a total disability rating due to individual employability resulting from service-connected disability (TDIU). A request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but is rather part of the adjudication of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, when entitlement to TDIU is raised during the appeal of a rating for a disability, it is part of the claim for benefits for the underlying disability. Id at 454. In this case, the record is negative for evidence that the Veteran is unemployable. He is not in receipt of Social Security disability benefits, and has continued to work full time throughout the claims period. The record establishes that his disabilities result in some impairment to employment activities, but the relevant rating criteria contemplate these impairments and the Veteran does not allege that he is unable to perform his duties due to the service-connected hip disability such that he is unemployable. Therefore, remand of a claim for TDIU is not necessary as there is no evidence of unemployability due to the service-connected condition on appeal. ORDER Entitlement to an increased initial rating for osteoarthritis and bursitis of the right hip and thigh based on limitation of flexion, rated as 10 percent disabling prior to June 21, 2016 and 30 percent disabling thereafter, is denied. Entitlement to an increased initial rating for osteoarthritis and bursitis of the right hip and thigh based on limitation of abduction, rated as 20 percent disabling from June 21, 2016, is denied. Entitlement to an increased initial rating for osteoarthritis and bursitis of the right hip and thigh based on limitation of extension, rated as 10 percent disabling from June 21, 2016, is denied. ____________________________________________ M. H. Hawley Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs