Citation Nr: 1803033	
Decision Date: 01/16/18    Archive Date: 01/29/18

DOCKET NO.  03-35 298	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines


THE ISSUES

1.  Entitlement to a higher initial rating for a left shoulder disability currently evaluated as 20 percent disabling.

2.  Entitlement to a higher initial rating for a left hip disability currently rated as 20 percent disabling prior to May 7, 2007, 30 percent disabling from May 7, 2007 through August 23, 2017 (with the exception of a temporary total (100 percent) convalescence rating pursuant to 38 C.F.R. § 4.30 from November 15, 2007 to December 31, 2007 and a temporary total (100 percent) rating for 1 year following implantation of prosthesis from January 1, 2008 to December 31, 2008) and 70 percent disabling from August 24, 2017.  


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

B. G. LeMoine, Associate Attorney


INTRODUCTION

The Veteran served on active duty from January 1991 to September 2002. 

These matters come before the Board of Veterans' Appeals (Board) on appeal of a February 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.  The Veteran's claims file is currently under the jurisdiction of the Manila, Philippines RO.

This case was previously remanded by the Board in April 2008, November 2010 and July 2016.  A review of the claims file shows that there has been substantial compliance with the Board's remand directives.  See Stegall v. West, 11 Vet. App. 268 (1998).  The case has been returned to the Board for review.

In April 2008, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is associated with the claims file.

In an October 2017 rating decision, the Agency of Original Jurisdiction (AOJ) increased the rating for the Veteran's left hip disability to 70 percent disabling, effective August 24, 2017.  As the increase did not satisfy the appeal in full, the issue remains on appeal and has been characterized as shown on the title page of this decision.  See AB v. Brown, 6 Vet. App. 35 (1993).

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) (2012).

The Board's apologies for the delays in the full adjudication of this case. 


FINDINGS OF FACT

1. The Veteran's service-connected left shoulder disability is not more comparable to limitation of motion to midway between side and shoulder level.

2.  Prior to May 7, 2007, the Veteran's left hip disability was not manifested with marked knee or hip disability; or flexion limited to 20 degrees.

3.  From May 7, 2007, to November 14, 2007, the Veteran's left hip disability was not manifested with fracture of surgical neck of the femur with false joint; or flexion limited to 10 degrees.  

4.  From January 1, 2009 through August 23, 2017, the Veteran's status-post left total hip replacement residuals were not manifested by moderately or markedly severe residuals of weakness, pain or limitation of motion; or by painful motion or weakness such as to require the use of crutches; and, during this period, more than one year had elapsed since implantation of prosthesis.  

5.  From August 24, 2017, the Veteran's status-post left total hip replacement residuals are not manifested by painful motion or weakness such as to require the use of crutches; and, during this period, more than one year had elapsed since implantation of prosthesis.

CONCLUSIONS OF LAW

1.  The criteria for an initial rating in excess of 20 percent for service-connected left shoulder disability are not met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1 - 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5201 (2017).

2.  The criteria for an initial rating in excess of 20 percent for service-connected left hip disability, prior to May 7, 2007 are not met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1 - 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5250-5255 (2017).

3. The criteria for an initial rating in excess of 30 percent for service-connected left hip disability, from May 7, 2007 through November 14, 2007 are not met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1 - 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5250-5255 (2017).

4.  The criteria for an initial rating in excess of 30 percent for service-connected left hip disability, from January 1, 2009 through August 23, 2017 are not met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1 - 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5054, 5250-5255 (2017).  

5.  The criteria for an initial rating in excess of 70 percent for service-connected left hip disability, from August 24, 2017 are not met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1 - 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5054, 5250-5255 (2017).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Increased Ratings - General Legal Criteria

Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155; 38 C.F.R. Part 4.  Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases.  38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002).

Further, a disability rating may require re-evaluation in accordance with changes in a veteran's condition.  The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not.  Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007).

In rating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. § 4.40.  Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities.  38 C.F.R. § 4.45.  Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint.  38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis).  However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body.  Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011).

Increased Rating - Left Shoulder Disability

The Veteran's left shoulder disability is currently rated 20 percent disabling under Diagnostic Code 5201.  38 C.F.R. § 4.71a.  Diagnostic Code 5201 provides a 20 percent rating when limitation of motion of the minor arm is limited to shoulder level or midway between side and shoulder level.  If motion of the minor arm is limited to 25 degrees from the side, a 30 percent rating is for assignment.  

The Veteran avers that his current left shoulder disability warrants a higher disability rating.  

The Veteran was provided a VA examination in December 2002.  The Veteran stated that his left shoulder has flare-ups a couple of times a week that lasts for two days.  He further stated he has very little use of his left arm.  Upon examination, the Veteran's general appearance was within normal limits.  His flexion was to 160 degrees with pain; abduction to 140 degrees with pain; exterior rotation was to 65 degrees with pain; and interior rotation was to 40 degrees with pain.  The VA examiner noted there was pain at the end of active range of motion with movement.  The VA examiner further noted there was no limitation of range-of-motion due to fatigue, weakness, lack of endurance or incoordination.  There was no ankylosis.

The Veteran was provided a VA examination in April 2004.  The VA examiner noted that the Veteran had symptoms of loss of flexibility and mild weakness in the left shoulder.  The Veteran described functional impairment of inability to reach above his head and unable to carry anything heavy.  Upon examination the Veteran's left should had flexion to 160 degrees with pain at 120, abduction to 140 degrees with pain at 100 degrees, exterior rotation to 70 degrees with pain at 60 degrees and interior rotation to 70 degrees with pain at 60 degrees.  

The Veteran was provided a VA examination in May 2007.  The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination.  The VA examiner noted that the Veteran was right handed.  The Veteran described discomfort with overhead motion.  The Veteran denied flare-ups.  He reported additional loss of range-of-motion upon repetitive use.  Upon examination, the Veteran had painful forward flexion to 95 degrees, painful extension to 40 degrees, external rotation to 50 degrees and internal rotation to 70 degrees.  

The Veteran was provided a VA examination in June 2010.  The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination.  The Veteran described stiffness, decreased speed of joint motion and weekly moderate flare-ups that last several hours.  Upon examination, the Veteran had left shoulder flexion to 150 degrees, abduction to 135 degrees, internal rotation to 80 degrees and external rotation to 55 degrees.  There was objective evidence of pain with active motion.  The Veteran was able to perform repetitive use testing with additional loss of range-of-motion.  After repetitive use testing the Veteran's range-of-motion was flexion to 146 degrees, abduction to 130 degrees, internal rotation to 80 degrees and external rotation to 50 degrees.

The Veteran was provided a VA examination in August 2017.  The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination.  The Veteran described dull aching pain that is worse with lifting heavy objects or reaching overhead.  He denied left shoulder flare-ups and stated he is not able to raise his arms above his head, behind his back or lift heavy objects.  Upon examination, the Veteran had left shoulder flexion to 120 degrees, abduction to 120 degrees, external rotation to 65 degrees and internal rotation to 75 degrees.  The Veteran was able to perform repetitive use testing without additional loss of range-of-motion.  

With respect to Diagnostic Code 5201, a higher rating of 30 percent is warranted when the minor arm is limited to 25 degrees from the side.  The objective clinical findings do not show that the Veteran's left shoulder disability manifests in limitation of motion to 25 degrees from the side.  A rating in excess of 20 percent is not warranted.  38 C.F.R. § 4.71a, Diagnostic Code 5201.

The Board considered whether a disability rating in excess of 20 percent would be warranted on the basis of any additional functional impairment and loss.  The Board will consider whether application of 38 C.F.R. §§ 4.40, 4.45, 4.59 would warrant a rating of 30 percent or higher under Diagnostic Code 5201.  See also DeLuca, 8 Vet. App. 202; Mitchell v. Shinseki, 25 Vet. App. 32 (2011).  The Veteran has complained of constant pain, weakness, excess fatigability, loss of motion, and painful motion.  The evidence does not reflect additional functional impairment and loss to the degree to warrant a rating of 30 percent under Diagnostic Code 5201.  While the Veteran reported that he was not able to lift his shoulder above his head or behind his back, the most probative findings, consisting of objective clinical findings, do not reflect that his arm is limited to 25 degrees from side.  In addition, the examination findings do not show that repetitive range of motion testing resulted in reduced range of motion to 25 degrees from the side.  Here, the most probative findings do not indicate that even with functional impairment and loss, the Veteran's left shoulder disability is comparable to limitation of motion to 25 degrees from the side.  As a result, the symptoms and manifestations are adequately compensated by the assigned disability rating of 20 percent for the left shoulder disability.  See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2014); DeLuca, 8 Vet. App. 202.

The Board considered whether higher or separate ratings would be in order under other relevant diagnostic codes.  See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995).  Diagnostic Code 5200 is not for application as there is no evidence of ankylosis.  In addition, there is no indication of recurrent dislocation of scapulohumeral joint, fibrous union of humerus, nonunion of humerus (false flail joint), or loss of head of humerus (flail shoulder).  Therefore, application of Diagnostic Code 5202 is not warranted.  Finally, Diagnostic Code 5203 does not allow for a higher rating and application of the code is not warranted.  

The Board recognizes the Veteran's assertions that his left shoulder disability warrants a higher disability rating.  The Veteran is competent to report his lay-observable symptomatology such as pain, weakness, limited motion, fatigue, and effects on his occupation and daily activities such as driving.  See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005); Layno v. Brown, 6 Vet. App. 465 (1994).  The Board considered the Veteran's statements with the clinical findings of record.  The Board attributes greater probative value to the objective clinical findings which do not reflect that the functional impairment and loss related to the left shoulder disability is comparable to limitation of motion to 25 degrees from the side.  

While the Veteran attested to limitation of motion, VA regulations require the use of a goniometer to measure limitation of motion and the Veteran is not considered competent to provide an opinion as to whether his motion is limited to 25 degrees from the side.  See 38 C.F.R. § 4.46.  A rating in excess of 20 percent is not warranted.  

In sum, there is no identifiable period that would warrant a rating in excess of 20 percent and; therefore, staged ratings are not appropriate in this case.  See Fenderson, 12 Vet. App. 119.  In light of the above, a preponderance of the evidence is against the claim for a disability rating in excess of 20 percent for service-connected left shoulder disability.  The benefit-of-the-doubt doctrine does not apply and the claim must be denied.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 

Increased Initial Rating for Left Hip Disability

The Veteran's service-connected left hip disability is rated as 20 percent disabling from September 14, 2002 through May 6, 2007 and 30 percent disabling from May 7, 2007 through November 14, 2007 under 38 C.F.R. § 4.71a, Diagnostic Code 5255.  The Veteran's service-connected left hip disability is rated as 100 percent disabling from January 1, 2008 through December 31, 2008; 30 percent disabling from January 1, 2009 through August 23, 2017; and 70 percent disabling from August 24, 2017 under 38 C.F.R. § 4.71a, Diagnostic Code 5054.

Under Diagnostic Code 5255, malunion of the femur with slight knee or hip disability warrants a 10 percent evaluation.  Malunion of the femur with moderate knee or hip disability warrants a 20 percent evaluation.  Malunion of the femur with marked knee or hip disability warrants a 30 percent evaluation.  Fracture of surgical neck of the femur, with false joint or fracture of the shaft or anatomical neck of the femur with nonunion, without loose motion, weight bearing preserved with aid of brace warrants a 60 percent evaluation.  Fracture of the shaft or anatomical neck of the femur with nonunion, with loose motion, (spiral or oblique fracture) warrants an 80 percent evaluation.  38 C.F.R. § 4.71a, Diagnostic Code 5255.

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.

Under Diagnostic Code 5054, the hip is rated at 100 percent for one year following implantation of prosthesis.  A Note to DC 5054 indicates that the 100 percent rating will commence following a 1-month period of convalescence, where the hip is rated 100 percent under 38 C.F.R. § 4.30.  Thus, a 100 percent rating is automatically assigned for a maximum 13-month period after a hip replacement.  38 C.F.R. § 4.71a, DC 5054.  

After the 13-month at 100 percent ends, a minimum of 30 percent is assigned.  If there are moderately severe residuals of weakness, pain, or limitation of motion, then a 50 percent rating is warranted.  If there is markedly severe residual weakness, pain, or limitation of motion, then a 70 percent rating is warranted.  If there is painful motion or weakness such as to require the use of crutches, then a 90 percent rating is warranted.  Id.  A 90 percent rating is the highest rating permitted for the hip, aside from the periods where a 100 percent rating is expressly permitted.  See 38 C.F.R. §§ 3.343(a), 4.68, 4.71a, Diagnostic Code 5160.

1.  Rating in Excess of 20 Percent Prior to May 7, 2007

In his April 2003 Notice of Disagreement, the Veteran stated that he did not agree with the 20 percent rating he was granted for his service-connected left hip disability under Diagnostic Code 5255. See, Statement in Support of Claim received April 2003. 

The Veteran was provided a VA examination in December 2002.  The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination.  The Veteran stated that he had sharp pains in his groin, especially if he sat for prolonged periods of time.  He further stated that he had limited range-of-motion and walks with a limp.  The Veteran stated he could not run or walk/stand for prolonged periods of time.  Upon examination, the VA examiner noted the Veteran's left hip was within normal limits, except for a well-healed surgical scar.  The Veteran's flexion was to 95 degrees with pain and extension to 25 degrees with pain.  The VA examiner further noted that the Veteran demonstrated pain at the end of active range-of-motion with all left movements.  

Additionally, the VA examiner noted that the Veteran is limited by pain but not by fatigue, weakness, lack of endurance or incoordination.  There was no ankylosis.  The VA examiner diagnosed the Veteran with moderate osteoarthropathy of the left hip joint and cyctic degenerative changes within the femoral head.  

The Veteran was provided a VA examination in April 2004.  The Veteran stated he had constant pain and weakness in his left hip.  He further stated his left hip disability does not cause incapacitation.  Upon examination, the Veteran exhibited flexion to 100 degrees with pain at 75 degrees.  The VA examiner stated that the Veteran's left hip was additionally limited by pain, fatigue, weakness and lack of endurance.  

Given the evidence of record, the Board finds that the Veteran's left hip disability does not warrant a higher initial rating prior to May 7, 2007.  For this appeal period, the evidence shows left hip osteoarthritis was manifested by limited motion with left hip flexion limited at its worse to 75 degrees due to pain and left hip extension to 25 degrees.  This is consistent with a 20 percent rating under Diagnostic Code 5255.

Under Diagnostic Code 5255 a rating in excess of 20 percent is not warranted for the Veteran's service-connected left hip disability.  The evidence does not show marked knee or hip disability.  Additionally, the evidence does not show left hip ankylosis, flail joint, or any impairment of the femur demonstrated.  The Veteran is also not shown to have had a left hip replacement during this appeal period.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5250, 5254, 5255 and 5054.  

Additionally, under the regular rating schedule for the hip and thigh, Diagnostic Codes 5251-5253, the degree of functional limitation shown does not warrant a rating in excess of 20 percent.  Although the Veteran competently reported pain after prolonged walking and standing, his flexion was to 95 degrees.  The Board considered whether a higher rating is warranted based on functional impairment or due to pain, but finds that the current 20 percent rating based on moderate knee or hip disability under Diagnostic Code 5255 contemplates pain in the affected left hip joint.  Accordingly, the criteria for a higher 30 percent rating based on limitation of flexion, even with consideration of pain, is not warranted.  

2.  Rating in Excess of 30 Percent from May 7, 2007 through November 14, 2007

The Veteran was provided a VA examination in May 2007.  The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination.  The Veteran stated he has deep left hip discomfort.  He denied flare-ups of the left hip.  He reported that standing greater than 15 minutes, sitting and walking increases his left hip pain.  Upon examination the Veteran demonstrated flexion range-of-motion with pain to 90 degrees.  A 30 percent evaluation was assigned for the Veteran's left hip disability effective May 7, 2007 under 38 C.F.R. § 4.71a, Diagnostic Code 5255.   

Given the evidence of record, the Board finds that the Veteran's left hip disability does not warrant a higher initial rating from May 7, 2007 to November 14, 2007.  For this appeal period, the evidence shows left hip osteoarthritis was manifested by limited motion with left hip flexion limited at its worse to 90 degrees due to pain.  This is consistent with a 30 percent rating under Diagnostic Code 5255.

The Board has considered evaluating the Veteran's left hip disability under other pertinent diagnostic codes, but none are applicable because there is no objective evidence of ankylosis, flail joint, or impairment of femur.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5250, 5254, 5255.  

3.  Rating in Excess of 30 Percent from January 1, 2009 through August 23, 2017

The Veteran was afforded a temporary evaluation of 100 percent effective November 15, 2007 based on surgical or other treatment necessitating convalescence.  An evaluation of 100 percent was assigned from January 1, 2008 through December 31, 2008 for status post hip arthroplasty.  An evaluation of 30 percent was assigned effective January 1, 2009 as a minimum evaluation following prosthetic replacement of the left hip under Diagnostic Code 5054.

The Veteran was afforded a VA examination in June 2010.  The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination.  The Veteran reported a twinge of pain and discomfort in his left hip.  He further reported lingering pain over the left hip on pressure when sitting too long.  The Veteran reported weekly flare-ups of moderate pain that last several hours.  He further reported stiffness and tenderness.  Upon examination, the Veteran demonstrated flexion to 109 degrees and extension to 9 degrees with pain.  There was objective evidence of pain following repetitive motion without additional loss of range-of-motion after repetitive use.  

The Board has considered the aforementioned evidence and concludes that the Veteran's status-post left total hip replacement residuals manifestations most closely approximate the 30 percent rating criteria under Diagnostic Code 5054.  In this regard, there is no evidence indicating that the Veteran has moderately severe residuals of weakness, pain, or limitation of motion.  The June 2007 VA examiner noted pain with repetitive use, but not to the extent that there was additional limitation.  The Veteran reported flare-ups, but stated they were only moderate and lasted for only several hours once a week.  As the record does not show that the pain persisted at a moderately or markedly severe level, an initial rating in excess of 30 percent was not warranted at any time during the appeal period.

The Board recognizes that the Veteran exhibited some limitation of motion at the June 2010 VA examination.  However, to warrant a higher rating under Diagnostic Code 5054, the Veteran must exhibit such limitation to a moderate or marked degree.  Normal range of motion of the hip is from 0 to 125 degrees of flexion.  At the June 2010 VA examination the Veteran had flexion to 109 degrees, corresponding to a decrease of 16 degrees of flexion.  The Board finds that such limitation of motion is not moderately or markedly severe such as to warrant a 50 percent or 70 percent initial rating under Diagnostic Code 5054.  

The Board also notes that the record is absent for any indication that the Veteran's status-post left total hip replacement residuals produce painful motion or weakness such as to require the use of crutches.  Accordingly, the criteria for a 90 percent rating under Diagnostic Code 5054 are not met.  Therefore, an initial rating in excess of 30 percent is not warranted at any time from January 1, 2009 through August 23, 2017.  38 C.F.R. § 4.71a, Diagnostic Code 5054.

4.  Rating in Excess of 70 Percent from August 24, 2017

The Veteran was afforded a VA hip and thigh conditions examination in August 2017.  The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination.  The Veteran reported limited range-of-motion with the left hip with constant pain variously described as two to eight out of ten.  He further reported limited ability to walk long distances or sit/drive for prolonged periods.  The Veteran reported frequent flare-ups of pain and stiffness.  He also reported limited range-of-motion with difficulty climbing stairs and getting in and out of cars.  Upon examination, the Veteran had flexion to 70 degrees and extension to 10 degrees.  The VA examiner stated that the Veteran's range-of-motion contributes to functional loss by limiting his ability to walk, stand, climb stairs and drive a car.  The Veteran was able to perform repetitive use testing without additional loss of range-of-motion.  The VA examiner noted that the Veteran did not require the use of crutches. 

The Board has considered the aforementioned evidence and concludes that the Veteran's status-post left total hip replacement residuals manifestations most closely approximate the 70 percent rating criteria under Diagnostic Code 5054 from August 24, 2017.  A rating in excess of 70 percent is not warranted under Diagnostic Code 5054 because the evidence does not show painful motion or weakness such as to require the use of crutches.  For this period on appeal, the evidence shows that the left hip was manifested by no more than markedly severe residual weakness, pain or limitation of motion following implantation of prosthesis.  Therefore, a rating in excess of 70 percent is not warranted for the period from August 24, 2017.

The Board has considered whether the Veteran is entitled to an initial rating in excess of 30 percent from January 1, 2009 through August 23, 2017 and in excess of 70 percent from August 24, 2017 on the basis of functional loss or impairment under 38 C.F.R. §§ 4.40 and 4.45.  See DeLuca v. Brown, 8 Vet. App. 202 (1995).  As noted above, the Veteran exhibited painful motion with repetitive use at the June 2010 VA examination.    However, the June 2010 VA examiner, after conducting repetitive-use testing, reported that the Veteran's joint function was not additionally limited by pain, fatigue, and weakness.  

Furthermore, the rating criteria under Diagnostic Code 5054 expressly contemplate symptoms of pain and weakness.  The Board therefore finds that the Veteran's pain and any functional loss are encompassed by the 30 percent rating from January 1, 2009 through August 23, 2017, and an initial rating in excess of 30 percent is not warranted at any time during that appeal period.  38 C.F.R. §§ 4.40, 4.45 (2014); DeLuca, 8 Vet. App. 202.  The August 2017 VA examiner noted that the Veteran was able to perform repetitive use testing without additional loss of range-of-motion.   The Board therefore finds that the Veteran's pain and any functional loss are encompassed by the 70 percent rating from August 24, 2017, and an initial rating in excess of 70 percent is not warranted at any time during that appeal period.  38 C.F.R. §§ 4.40, 4.45 (2014); DeLuca, 8 Vet. App. 202. 

The Board has considered the Veteran's status-post left total hip replacement residuals under other Diagnostic Codes for conditions of the hip and thigh.  Specifically, the Board has considered 38 C.F.R. § 4.71a, Diagnostic Codes 5250 through 5255.  However, the Board finds that the Veteran's status-post left total hip replacement residuals do not warrant any separate or higher ratings under these Diagnostic Codes.  Diagnostic Code 5250 is not for application as the Veteran has not submitted or identified any evidence indicating that his right hip joint is ankylosed.  Diagnostic Code 5254 is not for application as the Veteran has not submitted or identified any evidence indicating that he suffers from flail joint of the right hip.  Diagnostic Code 5255 is not for application as the Veteran has not submitted or identified any evidence indicating that he has suffered a fracture or malunion of the right femur.  Diagnostic Codes 5251 and 5253 are not for application as they compensate for limited motion of the hip and thigh, and provide ratings only up to 20 percent.  The Veteran is already compensated for limited motion of the hip and thigh through his ratings of 30 percent and 70 percent under Diagnostic Code 5054.  Rating of the same manifestation under various diagnoses is to be avoided.  See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1994).  Diagnostic Code 5252 also compensates for limited motion of the hip and thigh, and provides for ratings up to 40 percent.  However, the Veteran is not entitled to an initial rating in excess of 30 percent prior to August 24, 2017, under Diagnostic Code 5252 because he has not exhibited limitation of flexion to 10 degrees in the left hip at any time during the appeal period. 

Consideration has been given to assigning additional staged ratings.  However, at no time during the appeal period has the disability warranted a higher schedular rating than those assigned.  See Fenderson, 12 Vet. App. 119.  With respect to any claim for entitlement to an initial rating in excess of those already provided a preponderance of the evidence is against the claim.  The benefit-of-the-doubt rule is not for application and claim must be denied.  38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 

Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (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).

VA's Duty to Notify and Assist

With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (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).  In this regard, the Veteran has been found to be totally disabled due to his service connected disabilities (TDIU) for several years.

ORDER

Entitlement to an initial rating for service-connected left shoulder disability in excess of 20 percent is denied.  

Entitlement to an initial rating for service-connected left hip disability in excess of 20 percent prior to May 7, 2007 is denied.  

Entitlement to an initial rating for service-connected left hip disability in excess of 30 percent from May 7, 2007 through November 14, 2007 is denied.  

Entitlement to an initial rating for service-connected left hip disability in excess of 30 percent from January 1, 2009 through August 23, 2017, is denied. 

Entitlement to an initial rating for service-connected left hip disability in excess of 70 percent from August 24, 2017 is denied.  
 

JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs