Citation Nr: 18153410 Decision Date: 11/28/18 Archive Date: 11/27/18 DOCKET NO. 17-05 489 DATE: November 28, 2018 ORDER For the period on appeal from December 27, 2013 to October 11, 2016, a rating higher than 10 percent for limitation of flexion of the right hip is denied. For the period on appeal from July 6, 2015 to October 11, 2016, a separate 20 percent rating, but not higher, for right hip limitation of abduction, is granted. For the period on appeal from December 1, 2017, forward, a rating higher than 30 percent for a right hip disability, is denied. Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU) is granted from December 27, 2013. FINDINGS OF FACT 1. For the period on appeal from December 27, 2013 to October 11, 2016, right hip disability manifested by painful arthritis and painful motion with flexion limited to at worse 40 degrees during flare-ups and after repeated use over a period of time, normal extension, and abduction without ankylosis, flail joint, or impairment of the femur. 2. For the period on appeal from July 6, 2015, the evidence shows limitation of abduction beyond 10 degrees during flare-ups. 3. For the period on appeal from October 11, 2016 through November 30, 2017, the Veteran was in receipt of a temporary total rating for post-surgical convalescence due to a total right hip replacement. 4. For the period on appeal from December 1, 2017, the evidence does not show painful motion or weakness requiring the use of crutches, markedly severe residual weakness, pain, or limitation of motion, or moderately severe residuals of weakness, pain, or limitation of motion. 5. From December 27, 2013, the Veteran has been rendered unable to maintain gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. For the period on appeal from December 27, 2013 to October 11, 2016, the criteria for a rating higher than 10 percent for right hip limitation of flexion, are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5252 (2017). 2. Resolving doubt in the Veteran’s favor, for the period on appeal from July 6, 2015 to October 11, 2016, the criteria for a separate 20 percent rating, but not higher, for right hip limitation of abduction, are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5253 (2017). 3. For the period on appeal from December 1, 2017, forward, the criteria for a rating higher than 30 percent for right hip disability post-total-hip-replacement, are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5054 (2017). 4. From December 27, 2013, forward, the criteria for an award of TDIU are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16(a)(b) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1991 to May 1999. Procedural History of Hip Rating and TDIU Issues As pertinent here, in December 2013, the Veteran filed a claim for increase for a right hip disability. In February 2015, he was provided with a VA examination, and in a March 2015 rating decision, the RO denied the increased rating claim. Later in March 2015, the Veteran filed a claim for a TDIU as related to the service-connected disabilities, to include the right hip. He submitted Social Security Administration (SSA) records, lay statements, and private medical treatment records. While relying on the February 2015 examination, in June 2015 and July 2015 rating decisions, the RO continued to deny the increased rating claim, as well as a TDIU. The Veteran submitted a private disability benefits questionnaire (DBQ) along with a notice of disagreement. The RO issued a statement of the case (SOC) in August 2016 and the Veteran timely perfected appeal in October 2016. Subsequently, additional VA treatment records were added to the claims file. The Veteran filed an October 2016 claim for a temporary total rating for right hip disability because of a hip replacement. The RO issued a January 2017 rating decision, which granted temporary total from October 11, 2016, and then 30 percent disability rating from December 1, 2017. This grant of temporary 100 percent rating is considered a full grant of the benefits sought for this period on appeal; however, as higher ratings are available prior and subsequent periods on appeal, these periods remain in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). Although the RO did not issue a supplemental statement of the case (SSOC), in November 2018, the Board received the Veteran’s waiver of consideration by the Agency of Original Jurisdiction (AOJ). Right Hip Rating Disability ratings evaluations are determined by comparing a veteran’s present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the veteran. 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran’s condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Where the veteran is appealing the rating for an already established service-connected condition, her present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). Disorders of the hips are rated under DC 5250 through DC 5255 of 38 C.F.R. § 4.71a. Hip flexion is measured from 0 degrees to 125 degrees; abduction is measured from 0 degrees to 45 degrees. 38 C.F.R. § 4.71a, Plate II. Under DC 5251 (limitation of extension of the thigh), a 10 percent rating is assigned with extension limited to 5 degrees. Under DC 5252 (limitation of flexion of the thigh), a 10 percent rating is assigned with flexion limited to 45 degrees; a 20 percent rating is assigned with flexion limited to 30 degrees; a 30 percent rating is assigned with flexion limited to 20 degrees; and a 40 percent rating is assigned with flexion limited to 10 degrees. Under DC 5253, pertaining to impairment of the thigh, a 10 percent rating is warranted for limitation of adduction of the thigh such that the legs cannot be crossed or there is limitation of rotation such that it is not possible to toe out more than 15 degrees; a 20 percent rating requires limitation of abduction with motion lost beyond 10 degrees. DC 5255 contemplates impairment of the femur. Malunion of the femur warrants a 10 percent rating with slight knee or hip disability, a 20 percent rating with moderate knee or hip disability, and 30 percent rating with marked knee or hip disability. 38 C.F.R. § 4.71a. 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 (2017). 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 (2017). Additionally, under Diagnostic Code 5054, for hip replacement, a 100 percent rating is to be assigned for a one-year period following implantation of the prosthesis. Thereafter a 90 percent rating is warranted with painful motion or weakness such as to require the use of crutches; a 70 percent rating is warranted for markedly severe residual weakness, pain, or limitation of motion; and a 50 percent rating is warranted for moderately severe residuals of weakness, pain, or limitation of motion. 38 C.F.R. § 4.71a. Right Hip Rating Analysis from December 27, 2013 to October 11, 2016 VA received the Veteran’s increased rating claim for right hip disability on December 27, 2013. During this period on appeal, the Veteran’s right hip disability is rated as 10 percent disabling pursuant to DC 5252, for limitation of flexion. After a careful review of all the evidence, lay and medical, the Board finds that a rating higher than 10 percent is not warranted pursuant to DC 5252; however, resolving all doubt in the Veteran’s favor, a separate 20 percent disability rating is warranted pursuant to DC 5253 is warranted from July 6, 2015 to October 11, 2016. In February 2015, the Veteran underwent a VA examination to help determine the severity of the right hip disability, at which time, the examiner confirmed a diagnosis of arthritis of the hip. The Veteran reported flare-ups described as pain and decreased range of motion during flare-ups and with overuse. On physical examination, range of motion of the right hip revealed flexion to 90 degrees with objective evidence of pain and extension greater than 5 degrees with no objective evidence of pain. Abduction was not lost beyond 10 degrees, was not limited as to prevent the Veteran from crossing his legs, and there was no limited rotation such that the Veteran could not toe-out more than 15 degrees. After repetitive use testing, range of motion continued to show flexion to 90 degrees and extension to 5 degrees or greater; however, the examiner stated that the Veteran had additional limitation in range of motion of the thigh following repetitive use testing, as well as functional loss/impairment, which was described as less movement than normal and pain on movement. The February 2015 VA examiner further noted that right hip adduction ended at 25 degrees; abduction ended at 45 degrees; internal rotation ended at 40 degrees; and, external rotation ended at 60 degrees, all with no objective evidence of painful motion. After repetitive use testing, there was no additional loss of range of motion. The examiner noted that there were contributing factors of pain, weakness, fatigability, and/or incoordination and additional limitation of functional ability of the hip joint during flare-ups or repeated use over time. The examiner concluded that the degree of range of motion loss during pain on use or flare-ups was approximately 40 degrees of flexion. Lastly, there was no evidence of pain on palpation; muscle strength testing was normal throughout; there was no evidence of ankylosis; and, it was noted that the Veteran was not using any assistive devices. Private treatment records from North Carolina Diagnostic Imaging contained an April 2015 MRI of the hip, which indicated that only a few sequences were free of motion artifact compromising resolution. However, it was noted that there was extensive edema along with sclerosis in the superior potion of the right femoral head and adjacent acetabulum and a small right hip joint effusion. There was evidence of acute fracture lines, although it was noted that the resolution limited the assessment. The medical professional indicated that the extensive marrow edema and the sclerotic and osteophytic changes of the right hip could be secondary to prior ischemic necrosis of the femoral head or merely primary osteoarthritic changes. VA treatment records dated later in April 2015 showed that the Veteran requested a prescription for a cane based on the MRI results. In July 2015, the Veteran submitted a private DBQ of the hip dated on July 6, 2015, which was performed based on a physical examination and review of the April 2015 MRI. The medical professional rendered diagnoses of right hip pain and osteoarthritis. The Veteran reported chronic progressive right hip pain with flare-ups that were described as “severe pain making it difficult to walk.” He further reported functional loss/impairment, that he described as limited ability to walk due to pain. on physical examination, range of motion of the right hip revealed flexion to 85 degrees; extension to 0 degrees; abduction to 20 degrees; adduction to 10 degrees; external rotation to 30 degrees; and, internal rotation to 10 degrees. The examiner noted that the abnormal range of motion itself contributed to functional loss and the Veteran was unable to perform repetitive use testing due to pain. There was evidence of pain on active and passive testing and with weight-bearing and non-weight-bearing. There was evidence of moderate localized tenderness in the anterior hip. The July 2015 medical professional identified contributing factors of the disability, to include less movement than normal; weakened movement; pain on movement; deformity; disturbance of locomotion; and, interference with standing. The medical professional further stated that, due to these factors, during flare-ups and or after repeated use, range of motion was limited due to pain, weakness, fatigability, or incoordination, which resulted in flexion to 75 degrees; extension ot 0 degrees; abduction to 0 degrees; adduction to 0 degrees; external rotation to 20 degrees; and internal rotation to 0 degrees. Muscle strength testing was normal throughout, with active movement against some resistance (4/5) on abduction, with no evidence of muscle atrophy. There was no evidence of ankylosis, malunion, or nonunion of the femur or flail hip joint, and no leg length discrepancy. There were no other pertinent findings, but it was noted that the Veteran used a cane regularly. In a statement in support of claim dated in July 2015, the Veteran indicated that during the February 2015 VA examination he was not “checked for flexion.” VA treatment records dated in August 2015 indicated that the Veteran reported seeing an orthopedic doctor and stated that he wanted to have a hip replacement surgery. Thereafter, treatment records dated in October 2015 showed that the Veteran requested a right hip injection. In the October 2016 substantive appeal (VA Form 9), the Veteran challenged the adequacy of the February 2015 VA examination, indicating that he was not “checked for flexion of the right hip.” He further stated that the examination “consisted of sitting on a table and the degree of movement of the knee was measured.” Lastly, he stated that he “spoke with people from the Winston Salem VA office when they came to Jacksonville NC and was told that [the VA examination] did not conduct the correct hip flexion exam.” The Veteran concluded that findings from the private July 2015 DBQ were not consistent with those found during the VA examination. Based on the foregoing, the Board finds that a rating higher than 10 percent is not warranted pursuant to DC 5252. Here, the February 2015 VA examination measured right hip flexion to 90 degrees, and, even considering the examiner’s conclusion that during flare-ups or after repeated use over a period of time an additional loss of 40 degrees was approximated, this does not more nearly approximate the criteria for a 20 percent rating, which requires flexion limited to 30 degrees. The private July 2015 DBQ also noted flexion to 85 degrees, and, although there was no estimation of range of motion loss in degrees, even taking into consideration the additional 40 degrees estimated by the VA examiner, this does not more nearly approximate flexion to 30 degrees or less. In this regard, while the Board acknowledges the Veteran’s argument as to the adequacy of the February 2015 VA examination, the Board finds that it has no merit. First, in terms of limitation of flexion, the examiner not only measured ranges of motion but also estimated additional loss during flare-ups. Second, there is only a difference of 5 degrees in limitation of flexion between the February 2015 VA examination and the July 2015 private DBQ, to 90 and 85 degrees, respectively, which is not supportive of the Veteran’s assertion that the measurements during the VA examination were not consistent with the evidence of record. In addition, the Board finds that a separate rating is not warranted pursuant to DCs 5251 or 5255, as the evidence did not show limitation of extension to 5 degrees or evidence of an impairment of the femur. The Board further considered whether a separate rating is warranted pursuant to DC 5003 for arthritis resulting in limitation of motion and/or objective findings or indicators of pain. However, given the facts of this particular case, the Veteran may not be assigned separate ratings under both DC 5003 (painful limitation of motion) and DC 5253, because a separate rating under DC 5003 would constitute pyramiding with DC 5253. The Veteran’s right hip disability since was manifested by painful motion, effusion, and painful arthritis. The diagnostic codes overlap in ratings based on pain as a form of limitation of motion; therefore, assigning separate ratings under both DC 5003 and DC 5253 would violate the prohibition against pyramiding. 38 C.F.R. § 4.14; Esteban, 6 Vet. App. at 261-62; Lyles, 29 Vet. App. 107. However, resolving all doubt in the Veteran’s favor, the Board finds that during the period on appeal from July 6, 2015 to October 11, 2016, a separate 20 percent rating is warranted pursuant to DC 5253. While there was no evidence that the Veteran’s adduction was limited as to prevent him from crossing his legs, or that he had limitation of rotation that made it impossible to toe-out more than 15-degrees, the July 2015 private DBQ estimated that during flare-ups and after repeated use over a period of time right hip abduction was limited to 0 degrees. As the abduction was limited to 0 degrees, an increased 20 percent rating is appropriate for limitation of motion on abduction. A rating higher than 20 percent is not available as this is the highest rating available under Diagnostic Code 5253. For these reasons, the Board finds that a separate rating of 20 percent, but not higher, is warranted pursuant to DC 5253 for the period on appeal from July 6, 2015 to October 11, 2016. Right Hip Rating Analysis from December 1, 2017 As mentioned-above, the Veteran is in receipt of a temporary total (100 disability rating) from October 11, 2016 to December 1, 2017, at which time, the right hip is assigned a 30 percent disability rating pursuant to DC 5054. After a careful review of all the evidence, lay and medical, the Board finds that a rating higher than 30 percent is not warranted during this period on appeal. On October 11, 2016, the Veteran underwent a successful total hip replacement of the right hip. There is no medical or lay evidence and the Veteran did not identify any evidence subsequent to the period for which he is in receipt of 100 percent disability to support the assignment of a rating higher than 30 percent. Notably, the evidence does not show painful motion or weakness requiring the use of crutches, markedly severe residual weakness, pain, or limitation of motion, or moderately severe residuals of weakness, pain, or limitation of motion, to warrant the assignment of 90, 70, or 50 percent disability rating, respectively. Accordingly, the minimum rating subsequent to the total right hip replacement is proper. TDIU – Rating Criteria and Analysis The Veteran asserts that he is precluded from obtaining or maintaining substantially gainful employment, specifically as a result of the service-connected bilateral shoulder, back, and bilateral hip disabilities. A total disability rating for compensation purposes may be assigned where the schedular rating is less than total, where it is found that the disabled person is unable to secure or follow substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, providing at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 4.16(a). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran’s education, training, and work history. The ultimate issue of whether TDIU should be awarded is not a medical issue, but rather is a determination for the VA adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev’d on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Here, the Veteran is service connected for right shoulder tendonitis rated as 10 percent disabling prior to December 27, 2013, and 30 percent thereafter; left shoulder tendonitis rated as 10 percent disabling prior to December 27, 2013, and 20 percent thereafter; lumbar spine disability rating as 10 percent disabling prior to December 27, 2013, and 20 percent thereafter; right hip disability rated as 10 percent disabling prior to the decision herein, and assigned 10, 20, and 30 percent thereafter; and, left hip disability rated as 10 percent disabling. As aforementioned, the Veteran had a period in which he received temporary total (100 percent) rating for the right hip disability. The combined rating of at least 70 percent has been in effect since December 27, 2013, so the Veteran meets the criteria for consideration for a TDIU. 38 C.F.R. § 4.16(a). The question remains, however, whether the Veteran has been precluded from obtaining or maintaining a substantially gainful occupation as a result of the service-connected disabilities. The Board will discuss the Veteran’s medical history in the years prior to the claim and contemporaneous with when he last worked. Turning to the evidence, during the February 2015 VA examination for the service-connected right and left hips disabilities and lumbar spine disability, the examiner noted that there were contributing factors of pain, weakness, fatigability, and/or incoordination and there was additional limitation of functional ability of the right and left hip as well as the lumbar spine during flare-ups or repeated use over time. The examiner concluded that these disabilities impacted the Veteran’s ability to work, which was described as limited activity due to range of motion loss and/or pain during flare-ups. The examiner noted that the bilateral shoulder disabilities did not impact the ability to work. During the private July 2015 DBQ, it was noted that the Veteran’s right hip disability impacted the ability to work due to limitation in standing and walking. In a March 2015 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability, the Veteran indicated that he last worked full-time in October 2012, and stated that his service-connected disabilities affected full-time employment since December 2013, that he had four-years of high school education, and asserted that his service-connected disabilities were so severe that they prevented him from seeking substantial gainful employment. Medical treatment records furnished by the Social Security Administration (SSA) contained the Veteran’s application for benefits, in which he identified three prior employers since discharge from active duty in 1999 as a welder and mechanic facility maintenance, all which were physical jobs. In a May 2015 VA 21-4192 Request for Employment Information in Connection with Claim for Disability, the most recent employer confirmed that the Veteran worked there from August 2004 to October 2012, where he lost 100 hours of sick leave in the year prior to resignation. Also in March 2015, the Veteran submitted a lay statement, in which his friend noted that he witnessed the Veteran’s health “deteriorate from a productive Marine to become less than ideal and completely dependent on the use of a cane.” As aforementioned, the Veteran continued to report severe right hip pain and eventually underwent a total right hip replacement. The Board affords great probative value to the medical and lay evidence summarized above competently and credibly documenting the Veteran’s functional impairments due to symptoms of his service-connected disabilities. He competently and credibly has reported the degree and frequency of his observable, service-connected symptoms and consequent impairments, such as bilateral hip and back pain resulting in difficulty with prolonged walking and standing, as well as weakness and severe back pain, which required the assistance of a cane. After careful consideration of the record, to include both the lay and medical evidence, the Board resolves doubt in the Veteran’s favor, finding that he is unemployable by reason of service-connected disabilities. While the Veteran retains some capacity to work in a light duty position, based on the facts of this case, he does not have the necessary training or background that would potentially allow him to obtain substantial gainful employment even in such a light duty position. All his work experience, both in the military and since, has required physical activities such as lifting, standing, walking, and carrying. Considering the Veteran’s occupational and educational background – including the fact that since discharge from service, for over a decade, he always worked in the welding and maintenance industry, which required him to do mostly physical labor – there is a question whether he would be able to obtain and maintain a “light duty” employment. Accordingly, affording the Veteran the benefit of the doubt, entitlement to a TDIU is warranted from December 27, 2013. Finally, neither the Veteran nor his 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, 69-70 (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). J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Yaffe, Associate Counsel