Citation Nr: 18143768 Decision Date: 10/23/18 Archive Date: 10/22/18 DOCKET NO. 16-26 287 DATE: October 23, 2018 ORDER Entitlement to service connection for a back disability, including thoracic spine compression fracture and scoliosis, and spondylosis of the lumbar spine, is denied. Entitlement to service connection for a right hip disability, including osteoarthritis of the right hip, is denied. Entitlement to a compensable initial rating for residuals of a fracture of the pelvis (right iliac wing) is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a back disability began during active service, or is otherwise related to an in-service injury, event, or disease. 2. The preponderance of the evidence is against finding that a right hip disability began during active service, or is otherwise related to an in-service injury, event, or disease. 3. The Veteran’s residuals of fracture of the pelvis have not manifested functional impairment to the extent that a compensable rating may be assigned at any point during the appeal period. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a back disability, including thoracic spine compression fracture and scoliosis, and spondylosis of the lumbar spine, have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for entitlement to service connection for a hip disability, including osteoarthritis of the right hip, have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 3. The criteria for entitlement to a compensable initial rating for residuals of a fracture of the pelvis (right iliac wing) have not been met. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.20, 4.21., 4.40, 4.44, 4.67, 4.71a, Diagnostic Code 5299-5255 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the Army from March 1976 to June 1996. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a July 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Duty to Notify and Assist With respect to the Veteran’s claim 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), Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). Service Connection – Legal Criteria Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation during service of a preexisting injury or disease. 38 U.S.C. §§ 1110, 1131. To establish service connection for a disability on a direct-incurrence basis, a veteran must show: (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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also 38 C.F.R. § 3.303. A disability which is proximately due to or the result of a service-connected disease or injury shall be service-connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will also be service-connected. 38 C.F.R. § 3.310 (b). Service connection for chronic diseases, including arthritis, listed at 38 C.F.R. § 3.309 (a) may be established on a presumptive basis if the chronic disease was shown as chronic in service; manifested to a compensable degree within a presumptive period after separation from service; or was noted in service with continuity of symptomatology since service. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303 (b), 3.307, 3.309 (a). Continuity of symptomatology may be established if a claimant can demonstrate: (1) that a condition existed during service; (2) post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). Increased Rating – General Criteria Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities, 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). Service Connection – Back Disability The Veteran seeks service connection for a back disability, including thoracic spine compression fracture and scoliosis, and spondylosis of the lumbar spine. The Veteran was diagnosed with thoracic spine compression fracture and scoliosis, and spondylosis of the lumbar spine after a VA examination in June 2014. The Veteran’s service treatment records do not document any complaints, symptoms, treatment, or diagnoses of a back disability. The Veteran was involved in an automobile accident during military service in April 1985. Treatment records do not note the existence of any back related issues due to the accident. The Veteran had a VA examination for his back disability in June 2014. The VA examiner reviewed the claims file and conducted an in-person examination of the Veteran. The Veteran reported that his symptoms began in service after lifting jeep rings and tires in 1978, and that he sought treatment and was put on quarters for a day or two. He reported that his symptoms became progressively worse, and that he currently experiences flare ups of severe back pain. Upon examination, range of motion findings were normal, with no objective evidence of painful motion. There was no evidence of radiculopathy, other neurological abnormalities, or intervertebral disc syndrome. The examiner indicated that there was no pain to palpitation or localized tenderness, and that the Veteran did not have any functional loss or impairment of the spine. The VA examiner diagnosed thoracic spine compression fracture and scoliosis, and spondylosis of the lumbar spine, and opined that it was less likely than not that the claimed conditions were incurred in or caused by military service. She reasoned that the records did not document any spinal symptoms, injuries, or conditions likely to result in or predispose to development of the currently diagnosed back conditions. The Veteran submitted a notice of disagreement in which he indicated that he believed his scoliosis was due to traumatic injury, and that the only injury he had was during service. He submitted additional statements in his Form 9, in which he stated that his fractures were obviously a result of the in-service automobile accident. He opined that the fractures were missed when he was hospitalized, but that he had never been in any other type of accident that could have caused his back disability. The Veteran indicated that his fractures were old, and that the only explanation was that they were incurred during the in-service accident. After careful review, the Board finds that the preponderance of the evidence is against the claim for service connection for a low back disability. The Board has considered whether presumptive service connection is applicable under 38 C.F.R. § 3.309 (e). The Veteran reported experiencing pain since the injury; however, spondylosis is not a condition that is capable of lay diagnosis. Savage, 10 Vet. App. at 495-96. The medical evidence of record does not establish that the Veteran’s spondylosis manifested to a degree of 10 percent or more disabling within 1 year of discharge from service. 38 C.F.R. §§ 3.307 (a), 3.309 (e). Therefore, presumptive service connection is not for application. The June 2014 VA examiner opined that it was less likely than not that the veteran’s back disabilities were etiologically related to military service. She reviewed relevant records, including service treatment records, and concluded that they did not document any spinal symptoms, injuries, or conditions likely to result in the Veteran’s current back disabilities. Because the VA examiner rendered a medical opinion based on consideration of the medical evidence and her professional expertise, the Board affords her findings high probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board has considered the Veteran’s lay statements and his belief that his back disabilities are related to military service. He is competent to report symptoms that are capable of lay observation, such as pain. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he has not been shown to be competent to provide a medical etiology opinion relating his current back disabilities to military service, as such requires complex medical knowledge that the Veteran has not been shown to possess, including the ability to interpret complicated diagnostic testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Also, the Veteran’s reports regarding the onset of his back disability have not been consistent. See Caluza v. Brown, 7 Vet. App. 496, 511 (1995). He told the June 2014 VA examiner that his back began hurting after lifting tires and jeep rings in 1978, but later submitted correspondence in which he claimed that his back injury resulted from the in-service automobile accident. For the foregoing reasons, the Board attaches higher credibility and probative weight to the competent medical evidence of record. Jandreau, 492 F.3d at 1377 n.4; Caluza, 7 Vet. App. at 511. In sum, the preponderance of the evidence is against the claim for service connection for a back disability, including thoracic spine compression fracture and scoliosis, and spondylosis of the lumbar spine. The benefit of the doubt does not apply, and the claim is denied. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). Service Connection – Right Hip Disability The Veteran seeks service connection for a right hip disability, including right hip osteoarthritis. Service treatment records reflect that the Veteran’s April 1985 accident resulted in a comminuted fracture to the right iliac crest without involvement of the sacroiliac joint or the femoral acetabulum. Orthopedic treatment notes from May 1985 state that the Veteran was “ambulating well” but had slight weakness on flexion of the hip. The treatment plan was listed as “symptomatic prescription only – no surgery or brace.” The records do not show any treatment, complaints, symptoms, or diagnoses of right hip osteoarthritis. The Veteran had a VA examination for his hip disability in June 2014. The VA examiner reviewed the claims file and conducted an in-person examination of the Veteran. She diagnosed current osteoarthritis of the right hip, and a post-status right iliac wing fracture. The examiner observed that the right iliac wing fracture onset was in the Veteran’s April 1985 accident. The Veteran told the examiner that his entire right hip was “crushed,” and that his condition has gotten worse. The Veteran reported episodic hip pain occurring after walking and prolonged standing. The examiner conducted range of motion testing and noted that the Veteran did not exhibit any functional loss or impairment of the hip, including disturbance of locomotion. The examiner opined that the Veteran’s osteoarthritis was less likely than not etiologically related to military service. She reasoned that the in-service right iliac wing fracture did not involve the right hip joint space, has healed completely, and has not resulted in a gait disturbance likely to result in the currently diagnosed hip osteoarthritis. The examiner stated that the Veteran’s osteoarthritis is mild, and consistent with the aging process. The Veteran submitted a notice of disagreement in which he indicated that his right hip condition is associated with his April 1985 accident. He stated that he had chronic pain and walked with a limp since the injury. He stated that his right hip is lower than his left hip and that it causes pain and trouble sitting, and that the VA examiner did not ask him to walk during the examination, so his gait disturbance was not demonstrated. The Veteran had a general VA examination in July 2015. The examiner noted the presence of residuals of a fracture of the pelvis, and that its course since treatment had improved. The Veteran was not receiving any current treatment for the condition. The examiner indicated that there was no evidence of leg shortening, abnormal bones, abnormal joints, pain, fracture sight motion, inflammation, flare-ups of bone or joint disease, functional limitations to standing or walking, or malunion of the os calcis or astragalus. The Veteran made additional lay statements in his Form 9, in which he alleged that his osteoarthritis is a direct result of the pelvic fracture he experienced during service. He opined that the VA examiner’s conclusion that his osteoarthritis was based on the aging process was merely speculation. The Veteran reported difficulty walking, sitting, and standing for extended periods due to his injury. He cited a medical article stating that fifteen percent of people who develop osteoarthritis may have developed joint problems as the result of an injury. After careful review, the preponderance of the evidence is against the Veteran’s claim for service connection for a right hip disability including osteoarthritis. The Board has considered whether presumptive service connection is applicable under 38 C.F.R. § 3.309 (e). The Veteran reported experiencing pain since the injury; however, osteoarthritis is not a condition that is capable of lay diagnosis. Savage, 10 Vet. App. at 495-96. The medical evidence of record does not establish that the Veteran’s osteoarthritis manifested to a degree of 10 percent or more disabling within 1 year of discharge from service. 38 C.F.R. §§ 3.307 (a), 3.309 (e). Therefore, presumptive service connection is not for application. The June 2014 VA examiner opined that it was less likely than not that the veteran’s right hip osteoarthritis was etiologically related to military service. She reasoned that the right iliac wing fracture did not involve the right hip joint space, it has healed completely, and has not resulted in a gait disturbance likely to result in the current disability. She opined that the Veteran’s mild osteoarthritis was consistent with the aging process. Because the VA examiner’s opinion considered relevant medical evidence and provided persuasive rationale, the Board affords it high probative weight. Nieves-Rodriguez, 22 Vet. App. at 304. The Board has considered the Veteran’s lay statements. He is competent to testify to having experienced pain in his hip joint. Layno, 6 Vet. App. at 469. However, he has not been shown to have the expertise required to render a nexus opinion between his right hip osteoarthritis and military service, as such would require complex medical knowledge that the Veteran has not been shown to possess. Jandreau, 492 F.3d at 1377 n.4. As such, the Board affords higher probative weight to the competent medical evidence of record. In sum, the preponderance of the evidence is against the claim for service connection for a right hip disability, including right hip osteoarthritis. The benefit of the doubt does not apply, and the claim is denied. See 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 58. Increased Rating – Residuals of Pelvis Fracture The Veteran seeks a compensable initial rating for his residuals of a pelvis fracture of the right iliac wing. The July 2014 rating decision on appeal granted service connection for residuals of a pelvis fracture (right iliac wing), and assigned a 0 percent initial disability rating effective March 25, 2013. Therefore, the rating period on appeal is from March 25, 2013. 38 C.F.R. § 3.400. 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). The variability of residuals following fractures of pelvic bones necessitates rating on the specific residuals, such as faulty posture, limitation of motion, muscle injury, painful motion of the lumbar spine, manifest by muscle spasm, mild to moderate sciatic neuritis, peripheral nerve injury, or limitation of hip motion. 38 C.F.R. § 4.67. The Veteran’s disability is not listed in the rating schedule. Therefore, it will be rated under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology, are closely analogous. 38 C.F.R. § 4.20. The Veteran’s service connected residuals of a pelvis fracture of the right iliac wing are currently rated as non-compensable under 38 C.F.R. § 4.71a, Diagnostic Code 5299-5255. Such code provides evaluation of hip disabilities based on impairment of the femur, with slight knee or hip disability (10 percent); with moderate knee or hip disability (20 percent); with marked knee or hip disability (30 percent); fracture of surgical neck of, with false joint (60 percent); fracture of shaft or atomical neck with nonunion without loose motion (60 percent); fracture of shaft or atomical neck with nonunion with loose motion (80 percent). The Veteran underwent a VA examination in June 2014. The VA examiner reviewed the claims file and conducted an in-person examination of the Veteran. The examiner diagnosed a status-post right iliac wing fracture resulting from the Veteran’s April 1985 accident. The Veteran reported hip pain after walking about a quarter mile and after prolonged standing, and reported experiencing flare-ups. Upon range of motion testing, the Veteran had normal right hip flexion to 125 degrees, without objective evidence of painful motion. Right hip extension was greater than 5 degrees, without objective evidence of painful motion. Findings for the left hip showed normal extension and flexion, and no objective evidence of painful motion. The Veteran performed repetitive use testing with no additional loss of range of motion. The examiner indicated that the Veteran did not have any functional loss or impairment of the hip or thigh, or have any pain to palpitation or localized tenderness in the hip joints. Muscle strength testing was normal, and the examination did not locate any ankylosis. The Veteran did not exhibit malunion or nonunion of the femur, flail hip joint, or leg length discrepancy. The Veteran did not report using any assistive devices, and the examiner noted that the disability did not impact the Veteran’s ability to work. The examiner reviewed current X-ray testing, and stated that the fracture was completely healed. The examiner noted that the Veteran reported flare-ups manifested by pain, weakness, fatigability and/or incoordination, but indicated that she could not provide a degree of additional range of motion lost because there is no evidence of limitation in range of motion or objective evidence of pain on repetitive use. The Veteran had a general VA examination in July 2015. The examiner noted the presence of residuals of a fracture of the pelvis, and that its course since treatment had improved. The examiner indicated that there was no evidence of leg shortening, abnormal bones, abnormal joints, pain, fracture sight motion, inflammation, flare-ups of bone or joint disease, functional limitations to standing or walking, or malunion of the os calcis or astragalus. The Veteran submitted lay statements in his Form 9, in which he indicated that he has a limp in his right hip/leg due to the fracture. He stated that had he not incurred the injury, he would not experience issues when walking and sitting. He stated that it was not fair for VA to rate his disability as analogous to another disability, and requested that VA reconsider its decision based on these facts. After careful review, the Board finds that the criteria for a compensable initial rating for residuals of a pelvis fracture of the right iliac wing have not been met. The Veteran has not exhibited any impairment of the femur to the extent that a compensable rating may be assigned under Diagnostic Code 5299-5255. The Board has considered whether alternative diagnostic codes may be applied when rating the Veteran’s pelvic disability. However, the Veteran did not exhibit ankylosis of the hip, limited flexion or extension of the thigh, impairment of the thigh, or flail joint of the hip to the extent that a compensable rating could be assigned. 38 C.F.R. § 4.71a, Diagnostic Codes 5250-5254. The Board has considered whether the Veteran is entitled to a higher rating based on additional functional loss or impairment under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See DeLuca, 8 Vet. App. at 202; Burton, 25 Vet. App. at 1. At the June 2014 VA examination, the Veteran reported flare-ups with pain and restricted motion. Nevertheless, the VA examiner indicated that the Veteran did not have additional functional loss after repetitive use testing. She found no evidence of limited range of motion or objective evidence of painful motion, and therefore could not estimate functional loss during flare ups. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The July 2015 VA examiner indicated that there was no evidence of residuals such as leg shortening, abnormal bones, abnormal joints, pain, fracture sight motion, inflammation, flare ups of bone or joint disease, functional limitations to standing or walking, or malunion of the os calcis or astragalus. As such, the Board finds that, even with consideration of the Veteran’s complaints of pain, functional impairment does not manifest to the degree required to more closely approximate a compensable rating. See Mitchell, 25 Vet. App. at 32 (painful motion alone is not a functional loss without some restriction of the normal working movements of the body). The Board acknowledges the Veteran’s contentions that he is entitled to a compensable rating. The Veteran is competent to report symptoms such as pain, and is considered credible in his belief that he is entitled to a compensable rating. See Layno, 6 Vet. App. at 469. However, the Veteran is not competent to offer a medical opinion, for example, as to the relative severity of his residuals of a pelvis fracture in conjunction with the schedular rating criteria, as doing so requires medical knowledge and expertise the Veteran has not been shown to possess. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). Therefore, the Board relies on the medical evidence of record, which provides sufficient detail to rate the Veteran under the relevant criteria. See Prejean v. West, 13 Vet. App. 444, 448 (2000). The Board also has considered whether the Veteran is entitled to referral for assignment of compensation on an extra-schedular basis for residuals of a fracture of the right pelvis. Ordinarily, the rating schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulations, an extra-schedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extra-schedular rating. First, the Board must consider whether the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate. Second, if the schedular rating is found inadequate, the Board must determine whether the claimant’s disability picture exhibits other related factors such as those provided by the regulation as “governing norms.” If the first two factors are met, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the Veteran’s disability picture requires the assignment of an extra-schedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular ratings for the disability are inadequate. Specifically, the Veteran did not manifest any functional loss upon examination and x-rays indicated that his fracture had completely healed. Such symptoms warrant a non-compensable rating. 38 C.F.R. § 4.40; Mitchell, 25 Vet. App. at 37. The Board concludes that the symptoms experienced by the Veteran are not considered exceptional or unusual and any functional loss has been adequately considered under the schedular rating criteria. In sum, the Board finds that the criteria for a compensable initial rating for residuals of a pelvis fracture (right iliac wing) not been met, and there is no basis for staged ratings. See Fenderson, 12 Vet. App. at 126-27. Therefore, the benefit of the doubt does not apply, and the claim is denied. See 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 58. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Reed, Associate Counsel