Citation Nr: 1803474 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 11-27 744 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for right hip avulsion fracture residuals. 2. Entitlement to an initial disability rating (or evaluation) for the service-connected cluster headaches, in excess of 0 percent from December 30, 2008 to October 26, 2016. 3. Entitlement to an initial disability rating (or evaluation) in excess of 10 percent for right trochanteric bursitis. REPRESENTATION Veteran represented by: Virginia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD Patricia Kingery, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from October 1999 to December 2008. This appeal comes to the Board of Veterans' Appeals (Board) from May 2009, August 2011, and November 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. A claim for service connection for bursitis trochanteric, chronic pain, right hip residual avulsion fracture, and cluster headaches was received in December 2008. The May 2009 rating decision, in pertinent part, granted service connection for right trochanteric bursitis and assigned a 10 percent disability rating, granted service connection for cluster headaches and assigned a noncompensable (0 percent) initial disability rating, and denied service connection for right hip avulsion fracture residuals. The initial ratings were made effective December 30, 2008 (the day after the Veteran's separation from active service). The August 2011 rating decision, in pertinent part, granted a 10 percent initial rating for cluster headaches effective December 30, 2008. The November 2016 rating decision granted a 30 percent disability rating for cluster headaches effective October 26, 2016, creating staged initial disability ratings. VA treatment records dated after the November 2016 supplemental statement of the case have been associated with the claims file. While the most recent supplemental statement of the case does not include review of this evidence, in an October 2017 written statement, the Veteran waived agency of original jurisdiction (AOJ) consideration of the additional evidence. In June 2017, the Board remanded the issues on appeal to afford the Veteran a Board hearing. In October 2017, the Veteran testified at a Board videoconference hearing at the local RO in Roanoke, Virginia, before the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of the hearing is of record. As such, the Board finds there has been substantial compliance with the prior Board remand orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders); D'Aries v. Peake, 22 Vet. App. 97 (2008). The issue of an initial disability rating in excess of 10 percent for right trochanteric bursitis is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. The Veteran has currently diagnosed right hip avulsion fracture residuals, specifically right hip degenerative joint disease. 2. The right hip avulsion fracture occurred during service and the current right hip degenerative joint disease is causally related to service. 3. For the initial rating period from December 30, 2008 to October 26, 2016, the cluster headaches have been manifested by characteristic prostrating attacks occurring more frequently than once per month. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for right hip avulsion fracture residuals, including right hip degenerative joint disease, have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 2. Resolving reasonable doubt in favor of the Veteran, the criteria for an initial disability rating of 30 percent for cluster headaches have been met for the initial rating period December 30, 2008 to October 26, 2016. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.123, 4.124, 4.124a, Diagnostic Code 8100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159 (2017). The Board is granting service connection for right hip avulsion fracture residuals and remanding the issue of an initial disability rating in excess of 10 percent for right trochanteric bursitis. The Board is also granting a 30 percent initial disability rating for the cluster headaches for the initial rating period from December 30, 2008 to October 26, 2016, which, as discussed in detail below, continues a full grant of the benefit sought on appeal as to this issue. At the October 2017 Board hearing, the Veteran specifically stated that a 30 percent disability rating for the service-connected cluster headaches for the initial rating period from December 30, 2008 to October 26, 2016 would fully satisfy the appeal with respect to the headaches rating issue. The Veteran stated that she was satisfied with the 30 percent initial disability rating already assigned from October 26, 2016. See October 2017 Board hearing transcript at 2, 19. The Veteran has limited the initial period for rating headaches to the period from December 30, 2008 to October 26, 2016, and has limited the rating sought on appeal to a 30 percent rating for the headaches for the period from December 30, 2008 to October 26, 2016. See 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). Thus, the period from October 26, 2016 to the present is not on appeal, having been limited and withdrawn by the Veteran. See A.B. v. Brown, 6 Vet. App. 35, 39 (1993) (recognizing that a claimant may limit the claim or appeal to the issue of entitlement to a particular disability rating which is less than the maximum allowed by law for a particular service-connected disability). For these reasons also, further discussion of VA's duty to notify and to assist is not necessary. Service Connection for Right Hip Avulsion Fracture Residuals Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). As adjudicated below, the Board is granting service connection for right hip degenerative joint disease (as a residual of the right hip avulsion fracture) based on direct service connection under 38 C.F.R. § 3.303(a); therefore, the additional service connection theories of presumptive service connection based on chronic symptoms in service or continuous symptoms since service of a "chronic" disease in service (38 C.F.R. § 3.303(b) (2017)) or manifesting within one year of service separation (38 C.F.R. § 3.307 (2017)) pursuant to the same benefit are rendered moot because there remain no questions of law or fact as to the fully granted service connection issue. For this reason, these presumptive service connection theories will not be further discussed. See 38 U.S.C. § 7104 (stating that the Board decides actual questions of law or fact in a case). The Veteran essentially contends that she sustained a right hip avulsion fracture during service that caused the current right hip degenerative joint disease. At a January 2011 decision review officer (DRO) hearing, the Veteran testified that she fractured the right hip in 2007 during physical training and continued to experience right hip symptoms, including pain. In an October 2011 substantive appeal (on a VA Form 9), the Veteran contended that the right hip avulsion fracture was diagnosed and treated during service and that she continues to experience chronic painful residuals associated with the healed fracture. At the October 2017 Board hearing, the Veteran contended that the right hip avulsion fracture caused the current bursitis and arthritis in the hip. See Board hearing transcript at 15-17. After a review of all the evidence, the Board finds that the evidence of record demonstrates that the Veteran has current diagnosed disability of right hip degenerative joint disease. See October 2016 VA examination report. The evidence shows that the Veteran sustained a right hip injury in service. Service treatment records indicate that the Veteran was diagnosed with a right hip avulsion fracture during service. A March 2007 service treatment record notes that x-rays revealed a bony fragment adjacent to the greater trochanter with suggestion of a matching bone defect within the greater trochanter. The finding was thought to most probably be a result of an old avulsion fracture to the area. A May 2007 service treatment record notes that an avulsion fracture had been noted on x-ray and MRI reports. A December 2008 report of medical history (in connection with service separation) notes that the Veteran reported a right hip avulsion fracture diagnosed in January 2007. The reviewing physician also noted the in-service right hip avulsion fracture. The Board further finds that the current right hip degenerative joint disease is causally related to the in-service notations of a right hip avulsion fracture. A January 2010 VA treatment record notes that the Veteran reported chronic right hip pain following the fracture during service without specific trauma other than intense physical training. A January 2011 VA treatment record notes that the Veteran reported right hip arthralgia since service. An April 2011 VA treatment record notes that the Veteran reported ongoing right thigh pain since January 2007. In an October 2016 VA examination report, the VA examiner noted diagnoses of right trochanteric bursitis, status post right avulsion fracture of the greater trochanter and right hip degenerative joint disease. The VA examiner opined that the right hip degenerative joint disease is a progression of the VA established diagnosis (service connection has already been established for right trochanteric bursitis). The VA examiner noted that the Veteran reported right hip pain during service, was diagnosed with an avulsion fracture at the greater trochanter in February 2007, and an in-service MRI report noted bursitis. In this case, the Veteran had right hip pain during service with a right hip avulsion fracture noted on x-ray reports. The Board finds that the weight of the evidence is at least in equipoise as to whether the current right hip disability is causally related to the in-service avulsion fracture. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for right hip avulsion fracture residuals, including right hip degenerative joint disease, have been met. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Initial Rating for Cluster Headaches Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4 (2017). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1 (2017). Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2 (2017). Where there is a question as to which of two disability ratings shall be applied, the higher rating is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. When, after careful consideration of the evidence, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where, as in this case, the question for consideration is the propriety of the initial ratings assigned, evaluation of the all evidence and consideration of the appropriateness of staged ratings is required whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board has considered, and found inappropriate, the assignment of staged ratings for any part of the initial rating period. The Veteran is in receipt of a 10 percent initial disability rating for the initial rating period on appeal from December 30, 2008 to October 26, 2016 under 38 C.F.R. § 4.124a, Diagnostic Code 8100. As explained above, the subsequent period beginning on October 26, 2016, for which the Veteran is rated 30 percent disabled, is no longer on appeal, having been withdrawn by the Veteran. Under Diagnostic Code 8100, a 10 percent rating is assigned for migraines with characteristic prostrating attacks averaging one in two months over the last several months. A noncompensable (0 percent) rating is warranted with less frequent attacks. A 30 percent rating is assigned for migraine headaches when a veteran has characteristic prostrating attacks averaging once per month over the last several months. A 50 percent rating is assigned for migraine headaches when a veteran has very frequent, completely prostrating headaches with prolonged attacks that are productive of severe economic inadaptability. 38 C.F.R. § 4.124a. Throughout the course of the appeal, the Veteran has contended generally that the service-connected cluster headaches have been manifested by more severe symptoms than that contemplated by the 10 percent disability rating assigned for the initial rating period from December 30, 2008 to October 26, 2016. Specifically, the Veteran reports cluster headaches causing, at minimum, prostrating attacks three to four times per a week. The Veteran reported taking several medications to treat the headaches and that the headaches affect her daily routine and ability to sustain gainful employment. See also January 2011 DRO hearing transcript (the Veteran reported migraine headaches four days per week that make it hard to function). At the October 2017 Board hearing, the Veteran reported weekly migraine headaches that sometimes cause her to go in late to work. The Veteran reported light and noise sensitivity associated with the headaches causing nausea. See Board hearing transcript at 19-21. VA and military hospital outpatient treatment records dated throughout the appeal period note that the Veteran has reported chronic headaches. A January 2011 military hospital outpatient treatment record notes that the Veteran reported headaches four times a week with light and sound sensitivity and occasional nausea. An August 2013 VA treatment record notes that the Veteran reported daily low-grade headaches as well as weekly intense migraine headaches that last between two and 21 days. The Veteran has asserted that she has prostrating attacks associated with the headaches that averaged three to four times per a week throughout the appeal period. The Veteran has also expressed that the headaches are accompanied by nausea, occasional dizziness, and sensitivity to light and sound. See e.g., January 2011 DRO hearing transcript, January 2010 and August 2013 VA treatment records. While subjective, the Veteran is competent to report headache symptoms. See Pierce v. Principi, 18 Vet. App. 440 (2004) (holding in an increased rating claim that the Board erred in failing to consider/discuss a veteran's letter and headache diary documenting frequency and severity of headaches). At the March 2009 VA examination, the Veteran reported headaches twice per month lasting for three days. The Veteran reported that she is unable to go to work when the headaches occur. At the October 2016 VA examination, the Veteran reported daily cluster headaches mixed with migraine headaches that occur approximate twice per week. The VA examination report notes that the Veteran had pain on both sides of the head worsened with physical activity with associated symptoms of nausea, vomiting, sensitivity to light, sensitivity to sound, and changes in vision. The VA examiner noted characteristic prostrating attacks of migraine and non-migraine pain occurring more frequently that once per month. Based on the above and after a review of all the evidence, the Board finds that, for the initial rating period from December 30, 2008 to October 26, 2016, the cluster headaches have been manifested by characteristic prostrating attacks occurring more frequently than once per month that more nearly approximate the criteria for a 30 percent disability rating under Diagnostic Code 8100. 38 C.F.R. §§ 4.3, 4.7, 4.124. The appeal for a higher initial disability rating for the cluster headaches is fully granted in this Board decision. At the October 2017 Board hearing, the Veteran specifically indicated that a 30 percent disability rating for the initial rating period from December 30, 2008 to October 26, 2016 would satisfy the appeal as to this issue. The representative specifically indicated that the Veteran was satisfied with the 30 percent rating from October 26, 2016 and was not pursuing a higher (50 percent maximum) rating for the cluster headaches for any period. The Veteran and representative indicated that, if the 30 percent disability rating were granted back to the date of claim (i.e., December 30, 2008), then said grant would represent a full grant of the benefit sought on appeal. See October 2017 Board hearing transcript at 2, 19. Such a full grant of benefits sought, coupled with express indication that the rating percentage sought fully satisfies the appeal, is distinguished from a case where a veteran does not express satisfaction with a partial increased rating during an appeal that is less than the maximum schedular rating. See A.B., 6 Vet. App. at 39 (recognizing that a claimant may limit the claim or appeal to the issue of entitlement to a particular disability rating which is less than the maximum allowed by law for a particular service-connected disability). The Board finds the Veteran's waiver of the remaining aspects of the appeal for an initial rating for cluster headaches in excess of the 30 percent was knowing and intelligent, was made with representation, and was supported by and consistent with the Veteran's testimony and the evidence of record. Because a 30 percent initial disability rating for cluster headaches is granted for the initial rating period from December 30, 2008 to October 26, 2016, the Veteran has limited this appeal in both extent and time by withdrawing the aspects of the appeal that encompassed an initial rating in excess of 30 percent. See 38 C.F.R. § 20.204 (providing that an appellant may withdraw an issue at any time before the Board issues a final decision). For these reasons, any questions of an initial disability rating in excess of 30 percent are rendered moot with no remaining questions of law or fact to decide. See 38 U.S.C. § 7104; Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). In summary, the Board finds that the service-connected cluster headaches more closely approximates the criteria for a 30 percent rating under Diagnostic Code 8100 for the initial rating period from December 30, 2008 to October 26, 2016; therefore, the appeal is fully granted. 38 C.F.R. §§ 4.3, 4.7. Extraschedular Referral Considerations In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2017). As discussed above, the Veteran indicated that the grant of a 30 percent schedular disability rating for the initial rating period from December 30, 2008 to October 26, 2016 would fully satisfy the issue on appeal. The Veteran has specifically limited this appeal by withdrawing the aspects of the appeal encompassing an initial rating in excess of 30 percent, which includes whether referral for an extraschedular rating is warranted. See 38 C.F.R. § 20.204 (providing that an appellant may withdraw an issue at any time before the Board issues a final decision). Further, neither Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that either the veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances); Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the U.S. Court of Appeals for Veterans Claims (Court) held that a claim for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is part of a rating claim when unemployability is expressly raised by a veteran or reasonably raised by the record during the rating appeal. At the October 2017 Board hearing, the Veteran reported working full time as an x-ray technician. The Veteran has not contended that she is unemployed because of service-connected disabilities, and the other evidence of record does not so suggest; thus, the Board finds that Rice is inapplicable in this case because neither the Veteran nor the evidence suggests unemployability due to the service-connected disabilities. ORDER Service connection for right hip avulsion fracture residuals, including right hip degenerative joint disease, is granted. An initial disability rating of 30 percent for cluster headaches for the period from December 30, 2008 to October 26, 2016 is granted. REMAND Initial Rating for Right Trochanteric Bursitis The right trochanteric bursitis is rated under Diagnostic Code 5019 (bursitis). Pursuant to the provisions for rating certain musculoskeletal system disorders, the diseases (apart from gout (Diagnostic Code 5017)) under Diagnostic Codes 5013 through 5024 will be rated on limitation of motion of the affected parts as degenerative arthritis. 38 C.F.R. § 4.71a (2017). In this case, the right trochanteric bursitis is rated under the limitation of motion diagnostic codes relating to the hip and thigh (Diagnostic Codes 5250 through 5255). Pursuant to this decision, the Board grants service connection for right hip degenerative joint disease - i.e., arthritis, which would be rated under the Diagnostic Code 5010 (arthritis, due to trauma). Diagnostic Code 5010 represents arthritis due to trauma, substantiated by x-ray findings, which in turn is to be rated under Diagnostic Code 5003 as degenerative arthritis (hypertrophic or osteoarthritis). Degenerative arthritis established by X-ray findings will be rated based on limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. Id. Based on these provisions, the practical effect of this decision is that the right trochanteric bursitis and the right hip degenerative joint disease will be rated together as arthritis based on limitation of motion of the affected part - in this case, the right hip. The Board finds that, because of the nature of the rating criteria at 38 C.F.R. § 4.71a with respect to Diagnostic Codes 5019 and 5010, the issue of a higher initial rating for right trochanteric bursitis is inextricably intertwined with the downstream issue of an initial rating for the now service-connected right hip degenerative joint disease. The initial disability rating assigned for this additional musculoskeletal disorder could significantly change the adjudication of the initial rating for right trochanteric bursitis currently on appeal because it directly relates to how VA rates disabilities by analogy to degenerative arthritis. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue); see also 38 C.F.R. § 4.71a. As such, the issue of a higher initial disability rating for right trochanteric bursitis will be deferred until an initial rating is assigned for right hip arthritis. Additionally, at the October 2017 Board hearing, the Veteran contended the right hip disability, including trochanteric bursitis, had worsened. See Board hearing at 10-13. Further, in Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 (2017) requires that all VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. It is not clear whether joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing, was conducted at the March 2009 or October 2016 VA examinations during the appeal period. For these reasons, the Board finds that an additional VA examination is warranted. Accordingly, the issue of an initial disability rating in excess of 10 percent for right trochanteric bursitis is REMANDED for the following action: 1. The AOJ should implement the grant of service connection for right hip avulsion fracture residuals, including right hip degenerative joint disease, to include assignment of an initial disability rating and effective date. 2. Schedule a VA examination(s) to assist in determining the current severity of the service-connected right trochanteric bursitis. The VA examiner should review the evidence associated with the record. All indicated tests and studies should be conducted. The VA examiner should test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing for the right and left hip joints. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. Is there any additional functional loss attributable to pain, weakness, fatigue, or incoordination associated with the right hip disability, to include any loss of range of motion due to pain or during flare-ups? The examiner should express the additional functional limitation in terms of the degree of additional limitation of motion due to weakened movement, excess fatigability, incoordination, flare-ups, or pain. 3. Then, readjudicate the issue of a higher initial rating for right trochanteric bursitis. If any part of the appeal remains denied, provide the Veteran and representative with a supplemental statement of the case and allow an appropriate time for response. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs