Citation Nr: 1805600 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 10-47 302A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for hypertension. 2. Entitlement to an initial compensable rating for chronic right hip bursitis with limitation of flexion prior to November 2, 2015, and in excess of 10 percent from that date. 3. Entitlement to an initial compensable rating for chronic right hip bursitis with limitation of extension. 4. Entitlement to service connection for a left hip disability, to include as secondary to the Veteran's service connected disabilities. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran served on active duty from January 1996 to September 1996 and from June 2004 to August 2005, with additional service in the Army Reserves. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The claim for an initial disability rating in excess of 10 percent for hypertension was previously before the Board in July 2012. At that time, it was noted that the Veteran had submitted a Notice of Disagreement with the initial 10 percent rating, and the matter was remanded to the RO in order to provide the Veteran a Statement of the Case. This was accomplished in January 2016 and, as the Veteran submitted a Substantive Appeal in February 2016 and the matter was certified to the Board in March 2016, it is now on appeal to the Board. 38 C.F.R. § 20.200 (2017). The Board notes that the document was labeled as a supplement statement of the case, but it severed the same purpose as a statement of the case and the Board will accept jurisdiction of this issue. During the course of the appeal, the evaluation for limitation of flexion of the right hip disability was increased to 10 percent, effective from November 2, 2015. A veteran is generally presumed to be seeking the maximum benefit allowed by law and regulation, and a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). Therefore, as the Veteran has not expressed satisfaction with the 10 percent rating and as higher ratings are possible for the periods before and after November 2, 2015, these issues remain on appeal. The issue of entitlement to service connection for a left hip disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's hypertension has not been shown to result in diastolic pressures that are predominately 110 or more, or systolic pressures that are predominately 200 or more. 2. For the period prior to November 2, 2015, the Veteran did not have objective evidence of pain on flexion of the thigh, and flexion was not limited to 45 degrees even after consideration of pain, weakness, fatigability and incoordination after repetitive motion or on flare-ups. 3. For the period from November 2, 2015, the Veteran did not have flexion of the thigh limited to 45 degrees even after consideration of pain, weakness, fatigability and incoordination after repetitive motion; however, he did have limitation of flexion with objective evidence of painful motion. 4. For the period prior to November 2, 2015, the Veteran did not have objective evidence of pain on extension of the thigh, and extension was not limited to 5 degrees even after consideration of pain, weakness, fatigability and incoordination after repetitive motion or on flare-ups. 5. For the period beginning November 2, 2015, the Veteran has had limitation of extension of the thigh to 5 degrees. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased rating for hypertension, evaluated as 10 percent disabling, have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.2, 4.7, 4.10, 4.104 Code 7101 (2017). 2. The criteria for entitlement to an initial compensable rating for chronic right hip bursitis with limitation of flexion prior to November 2, 2015 have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.71a, Codes 5003, 5019, 5252 (2017). 3. The criteria for entitlement to a rating in excess of 10 percent for chronic right hip bursitis with limitation of flexion from November 2, 2015 have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.71a, Codes 5003, 5019, 5252 (2017). 4. The criteria for entitlement to an initial rating for chronic right hip bursitis with limitation of extension prior to November 2, 2015 have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.71a, Codes 5003, 5019, 5251 (2017). 5. The criteria for entitlement to a 10 percent rating for chronic right hip bursitis with limitation of extension from November 2, 2015 have been met; the criteria for a rating in excess of 10 percent have not been met. 38 U.S.C. §§ 1155, 5107(b) (2014); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.71a, Codes 5003, 5019, 5251 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist This appeal arises from disagreement with the initial evaluations following the grant of service connection. The courts have held that once service connection is granted the claim is substantiated, additional VCAA notice is not required; and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Regarding the duty to assist, all VA and private treatment records that have been identified have also been obtained. The Veteran cancelled the hearing that was scheduled for this matter. The Veteran has been afforded VA examinations of his disabilities. The examinations of the Veteran's right hip do not include the passive range of motion or complete information about weight-bearing. However, neither the Veteran nor his representative contends that he is prejudiced by this omission, so a remand for another VA examination of the hip is not necessary. See Scott v. McDonald, 789 F. 3d 1375 (Fed. Cir. 2015). The remaining criteria necessary to evaluate the Veteran's disability are included in the report. See Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (noting that medical reports must be read as a whole and in the context of the evidence of record). There is no indication that there is any relevant evidence outstanding in these claims, and the Board will proceed with consideration of the Veteran's appeal. Increased Rating The evaluation of service-connected disabilities is based on the average impairment of earning capacity they produce, as determined by considering current symptomatology in the light of appropriate rating criteria. 38 U.S.C. § 1155. Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In addition, the entire history of the veteran's disability is also considered. Consideration must be given to the ability of the veteran to function under the ordinary conditions of daily life. 38 C.F.R. § 4.10. If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In determining an initial rating, the entire record from the effective date of service connection to the present is of importance in determining the proper rating of disability, and staged ratings are to be considered in order to reflect the changing level of severity of a disability during this period. Fenderson v. West, 12 Vet. App. 119 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Hypertension Entitlement to service connection for hypertension was granted in an April 2010 Board decision. An initial 10 percent evaluation was assigned by an April 2010 rating decision, effective from August 24, 2005. The Veteran submitted a timely notice of disagreement with this evaluation which initiated the current appeal. The Veteran's hypertension is rated under 38 C.F.R. § 4.104, Code 7101, which provides for hypertensive vascular disease (hypertension and isolated systolic hypertension). A 10 percent rating is warranted for diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent rating is warranted for diastolic pressure predominantly 110 or more or; systolic pressure predominantly 200 or more. A 40 percent rating is warranted for diastolic pressure predominantly 120 or more. A 60 percent rating is warranted for diastolic pressure predominantly 130 or more. 38 C.F.R. § 4.104, Code 7101. The Board finds that weight of the evidence is against entitlement to a rating higher than 10 percent for the Veteran's hypertension. In this regard, the evidence does not show that the Veteran has diastolic pressures that are predominantly 110 or more, or systolic pressures predominantly 200 or more. The Veteran's blood pressure was 160/100 at a February 2006 VA examination. 2/8/2006 VA Examination, p. 1. At a November 2015 VA examination for hypertension, the Veteran reported systolic blood pressure readings mostly near 140 and diastolic readings near 90. He also reported good compliance with low sodium diet and antihypertensive medication. His blood pressure was taken three times. The readings were 138/91; 137/89; and 136/92. The average reading was 137/90. 11/2/2015 C&P Exam, p. 2. In addition to the two VA examinations during the rating period on appeal, the Board has reviewed hundreds of pages of the Veteran's medical records dating throughout the appeal period. The earliest blood pressure reading of record for this period is found in a November 2005 VA treatment record and shows the Veteran had blood pressure of 131/92. 4/17/2006 Medical Treatment Record - Government Facility, p. 7. At least 15 other blood pressure readings were identified in VA or private records dating from 2005 to 2013. Not only do these records fail to demonstrate either diastolic pressures that are predominantly 110 or more or systolic pressures that are predominantly 200 or more, they fail to show even a single reading of a diastolic pressure of 110 or higher, or a systolic pressure of 200 or higher. As the preponderance of the relevant evidence is against finding that the criteria for an increased/higher rating have been met, the Board finds that the current 10 percent rating remains reflect of the Veteran's hypertension disability picture. 38 C.F.R. § 4.104, Code 7101. Right Hip Entitlement to service connection for chronic right hip subtrochanteric bursitis was granted in an August 2012 rating decision. Separate noncompensable (zero) percent ratings were assigned based on limitation of extension and limitation of flexion of the leg, each effective from October 14, 2010. The noncompensable rating for limitation of extension remains in effect. However, a January 2016 rating decision increased the rating for limitation of flexion to 10 percent based on painful motion, effective from November 2, 2015. The Veteran's right hip disability is evaluated under the rating code for bursitis. This states that bursitis is to be rated on limitation of motion of the affected parts, as degenerative arthritis. 38 C.F.R. § 4.71a, Code 5019. That code section instructs that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate codes for the specific joint or joints involved. If the limitation of motion is noncompensable, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 20 percent evaluation is merited for X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. A 10 percent evaluation is merited for X-ray evidence of involvement of two or more major joints or two or more minor joint groups. 38 C.F.R. § 4.71a, Code 5003. Based on the above, the Veteran's right hip disability is evaluated under the rating criteria for limitation of flexion of the thigh. Under this rating code, limitation of flexion to 45 degrees is evaluated as 10 percent disabling. Limitation of flexion to 30 degrees is 20 percent disabling. Limitation of flexion to 20 degrees is 30 percent disabling, and limitation of flexion to 10 degrees is 40 percent disabling. 38 C.F.R. § 4.71a, Code 5252. The rating code for limitation of extension provides only for a 10 percent rating when limited to 5 degrees. 38 C.F.R. § 4.71a, Code 5251. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202, 205-08 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997); 38 C.F.R. § 4.59. The Veteran underwent a VA examination of his right hip in August 2012. Flexion was to a normal 125 degrees and extension was greater than 5 degrees, with no objective evidence of painful motion. Abduction was not lost beyond 10 degrees, adduction was not limited such that the Veteran could not cross his legs, and rotation was not limited such that the Veteran could not toe-out more than 15 degrees. The Veteran was able to perform repetitive use testing, but this did not result in additional limitation of the range of motion for the right leg. He did not report flare-ups that impacted the function of his hip or thigh. There was no ankylosis of the right hip, no malunion or nonunion of the femur, no flail hip joint, and no leg length discrepancy. An X-ray study was obtained, but it was negative for arthritis. A recent bone scan was also normal. 8/7/2012 VA Examination, p. 1. The most recent VA examination of the right hip was on November 2, 2015. Initial range of motion testing showed that the Veteran had flexion from zero to 95 degrees; extension from zero to 5 degrees; abduction from zero to 25 degrees; and adduction from zero to 20 degrees. Adduction was not limited such that the Veteran could not cross his legs. External rotation was from zero to 40 degrees, and internal from zero to 30 degrees. The Veteran had pain with all movements, but there was no evidence of pain on weight bearing. The Veteran was able to perform repetitive use testing, after which flexion was reduced from zero to 90 degrees, abduction from zero to 22 degrees, and internal rotation from zero to 28 degrees. Range of motion in the other movements was unchanged. The Veteran reported flare-ups, which he described as being unable to be in a sitting or standing position for prolonged periods of time. The examiner stated that he was unable to say whether or not pain, weakness, fatigability or incoordination would significantly limit functional ability with repeated use over time or during flare-ups. He acknowledged it was possible but noted that none of these factors were displayed during the physical examination, and no flare-up was shown. There was no ankylosis. An X-ray study was negative for arthritis. 11/2/2015 C&P Exam, p. 1. The Board finds that entitlement to a compensable rating for limitation of flexion prior to November 2, 2015 is not shown. The August 2012 examination shows that flexion exceeded 45 degrees, even after repetitive motion. Although flexion did not reach the normal 125 degrees, there was no objective evidence of pain on motion. Finally, the Veteran did not report flare-ups. There is no basis for an increased rating prior to November 2, 2015 for limitation of flexion. 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Codes, 5003, 5019, 5252. The evidence also fails to support a rating in excess of 10 percent for the period from November 2, 2015 for limitation of flexion. The Veteran continued to have 90 degrees of flexion even after repetitive use testing. This fails to meet the requirement for even a compensable rating under 38 C.F.R. § 4.71a, Code 5252, but as the Veteran had less than the normal 125 degrees of flexion and there was painful motion, the 10 percent rating was warranted. 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Codes, 5003, 5019. However, turning to the rating for limitation of extension, the Board finds that a 10 percent rating is warranted as of November 2, 2015 based on the limitation of extension to 5 degrees shown on the examination conducted on that date. This is the highest rating available under the rating criteria for limitation of extension. 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Codes, 5003, 5019, 5251. The Board finds the evidence fails to support entitlement to a compensable rating for limitation of extension prior to November 2, 2015. The August 2012 examination states that extension exceeded 5 degrees even after repetitive motion. There was no objective evidence of pain on motion, and the Veteran did not report flare-ups. The criteria for a compensable rating were not met. 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Codes, 5003, 5019, 5251. The Board has also considered the application of other rating codes. Limitation of abduction of the thigh in which the motion is lost beyond 10 degrees is evaluated as 20 percent disabling. 38 C.F.R. § 4.71a, Code 5253. However, the Veteran did not have this limitation on any of the examinations even after repetitive motion testing. Adduction was not limited to the extent the Veteran could not cross his legs, nor was he unable to toe out more than 15 degrees. He does not have ankylosis of the right hip or a flail hip. 38 C.F.R. § 4.71a, Codes 5250, 5254. Finally, both the examinations were negative for any form of impairment of the femur, so that a higher rating is not possible under that code. 38 C.F.R. § 4.71a, Code 5255. The Board concludes that there is no basis for a rating under any other potentially applicable rating code for any portion of the appeal period. ORDER An initial rating in excess of 10 percent for hypertension is denied. An initial compensable rating for chronic right hip bursitis with limitation of flexion prior to November 2, 2015 is denied. A rating in excess of 10 percent for chronic right hip bursitis with limitation of flexion from November 2, 2015 is denied. An initial rating for chronic right hip bursitis with limitation of extension prior to November 2, 2015 is denied. A 10 percent rating for chronic right hip bursitis with limitation of extension from November 2, 2015 is granted. REMAND The Veteran contends that he has developed a left hip disability either as a result of active service or as secondary to his other service-connected disabilities, in particular his right hip and low back disabilities. The record shows that the August 2012 VA examination diagnosed the Veteran with chronic subtrochanteric bursitis of both hips. In fact, this examination showed that the range of motion of the left hip was limited to a greater extent than the right, with evidence of painful movement. The examiner opined that the left hip disability was not related to active service, but did not provide an opinion on secondary service connection. 8/7/2012 VA Examination, p. 1. The record indicates that the November 2, 2015 examination was scheduled to at least in part obtain an opinion regarding secondary service connection. However, the examiner found that there was no left hip pathology on examination. A diagnosis was not entered, and the opinion was not obtained. 11/2/2015 C&P Exam, p. 1. However, the requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Therefore, an opinion regarding the etiology of the left hip disability shown in August 2012 must still be obtained. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination of his claimed left hip disability. The claims folder should be provided to the examiner for use in the study of this case, and the examination report should indicate it has been reviewed. All indicated tests and studies should be conducted. At the conclusion of the record review, interview with the Veteran and physical examination, the examiner address the following: a) Does the Veteran have a current disability of the left hip? If so, what is the diagnosis of any disability? For each left hip disability that has been diagnosed, provide the opinions requested in parts (b) through (d). b) Is it as likely as not that the Veteran's left hip disability is the result of an injury or event during active service? c) If the answer to (b) is negative, is it as likely as not that the Veteran's left hip disability was incurred due to his service-connected right hip disability, low back disability, or right shoulder disability acting either separately or together? Is it as likely as not that it was caused by any of his non orthopedic (depression, hypertension, stomach, or tinnitus) disabilities? d) If the answers to both (b) and (c) are negative, is it as likely as not that the Veteran's left hip disability was aggravated (increased in severity beyond its natural progress) by one or more of his service connected disabilities? If the answer is affirmative, indicate whether or not a baseline in severity prior to aggravation can be identified. If so, please describe this baseline. (e) If the examiner determines that the Veteran does not have a current disability of the left hip, the August 2012 diagnosis of left hip chronic subtrochanteric bursitis must be reconciled with the current findings. The examiner should state whether the August 2012 assessment was in error, or if it represented an acute disability since resolved. If the August 2012 assessment of left hip bursitis is deemed to have been accurate, than the examiner must provide all opinions requested above in parts (b) through (d) for the left hip bursitis. A comprehensive rationale for all opinions should be provided. If the examiner is unable to provide any portion of the requested opinion without resort to speculation, the reasons and bases for this opinion should be provided, and any outstanding evidence that might enable the opinion to be provided should be identified. 2. After the development requested above has been completed to the extent possible, the RO should again review the record. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the Veteran and representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs