Citation Nr: 18157043 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 10-07 889 DATE: December 11, 2018 ORDER Entitlement to an initial rating in excess of 30 percent from July 1, 2016 for residuals of status post total right hip replacement is denied. Entitlement to an initial rating in excess of 10 percent from April 3, 2007 to May 12, 2015 for right hip status post avascular necrosis is denied. Entitlement to an initial rating in excess of 10 percent for left hip status post avascular necrosis is denied. FINDINGS OF FACT 1. From July 1, 2016, the Veteran’s residuals of status post total right hip replacement are manifested by pain and flexion to between 110 and 125 degrees, without flail joint of the hip, ankylosis, or impairment of the femur with knee or hip disability; moderately severe residuals of weakness, pain or limitation of motion have not been shown. 2. From April 3, 2007 to May 12, 2015, the Veteran’s right hip status post avascular necrosis was manifested by pain and flexion to between 90 and 95 degrees, without flail joint of the hip, ankylosis, or impairment of the femur with knee or hip disability. 3. The Veteran’s left hip status post avascular necrosis is manifested by pain and flexion to between 90 and 130 degrees, without flail joint of the hip, ankylosis, or impairment of the femur with knee or hip disability. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 30 percent from July 1, 2016 for residuals of status post total right hip replacement have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71(a), Diagnostic Code 5054 (2018). 2. The criteria for entitlement to an initial rating in excess of 10 percent from April 3, 2007 to May 13, 2015 for right hip status post avascular necrosis have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71(a), Diagnostic Codes 5019-5252 (2018). 3. The criteria for an initial rating in excess of 10 percent for left hip status post avascular necrosis have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71(a), Diagnostic Codes 5019-5252 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service in the Army February 1991 to June 1991 and the Navy from March 2004 to April 2007. This appeal comes to the Board of Veterans’ Appeals (Board) from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Jurisdiction currently resides with the RO in Buffalo, New York. In May 2013, the Veteran had a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. From May 13, 2015 until June 30, 2016 the Veteran received a total disability rating due to a right hip replacement. The Veteran was in receipt of the highest rating for that period; consequently, that period is no longer before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). In an August 2016 rating decision, the Veteran’s right hip disability was decreased to 30 percent disabling, effective July 1, 2016. In September 2013 and November 2017, the appeal case was remanded for further development. In January 2018, the Veteran filed a new VA Form 21-22, appointing Alexandra M. Jackson, attorney, as his power of attorney (POA), which effectively revoked the previously filed VA Form 21-22 in favor of Penelope E. Gronbeck. Increased Rating As an initial matter, the Board notes it has reviewed all of the evidence in the Veteran’s claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the analysis will focus specifically on what the evidence shows, or fails to show, as to the issues decided on appeal. Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities (Rating Schedule). Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2018). Where the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of “staged ratings” is required. See Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of the two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2018). Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2018). 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 (2018). 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 (2018). Painful, unstable, or maligned 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). Currently, the Veteran is seeking increased ratings for his right hip and left hip disabilities. The Veteran’s residuals of status post total right hip replacement are rated at 30 percent from July 1, 2016 under 38 C.F.R. § 4.71(a), Diagnostic Code 5054. His right hip status post avascular necrosis is rated at 10 percent from April 3, 2007 to May 12, 2015 under 38 C.F.R. § 4.71(a), Diagnostic Codes 5019-5252. His left hip status post avascular necrosis is rated at 10 percent from April 3, 2007 under 38 C.F.R. § 4.71(a), Diagnostic Codes 5019-5252. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27 (2018). Under Diagnostic Code 5054, the hip is rated at 100 percent for one year following implantation of prosthesis. A Note to Diagnostic Code 5054 indicates that the 100 percent rating will commence following a 1-month period of convalescence, where the hip is rated 100 percent under 38 C.F.R. § 4.30. Thus, a 100 percent rating is automatically assigned for a 13-month period after a hip replacement. 38 C.F.R. § 4.71(a), Diagnostic Code 5054 (2018). After the 13-month at 100 percent ends, a minimum rating 30 percent is assigned. If there are moderately severe residuals of weakness, pain, or limitation of motion, 50 percent rating is warranted. If there are markedly severe residuals of weakness, pain, or limitation of motion, then a 70 percent rating is warranted. If there is painful motion or weakness such as to require the use of crutches, a 90 percent rating is warranted. Id. A 90 percent rating is the highest rating permitted for the hip, aside from the periods where a 100 percent rating is expressly permitted. See 38 C.F.R. §§ 3.343(a), 4.68, 4.71a, DC 5160. Diagnostic Code 5019, applicable to bursitis, requires that bursitis be rated on the basis of limitation of motion as degenerative arthritis under Diagnostic Code 5003. Diagnostic Code 5003 provides that degenerative arthritis established by x-ray is rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the joint involved, which in this case is the hip and thigh, Diagnostic Codes 5250 to 5255. 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 rating is assigned for x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71(a), Diagnostic Code 5003 (2018). Diagnostic Code 5251 provides that a 10 percent rating is warranted for extension of the thigh limited to 5 degrees. 38 C.F.R. § 4.71(a), Diagnostic Code 5251. Diagnostic Code 5252 provides ratings based on limitation of flexion of the thigh. A 10 percent disability rating is for flexion of the thigh that is limited to 45 degrees. A 20 percent rating is assigned for flexion of the thigh that is limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 20 degrees. A 40 percent rating is warranted for flexion limited to 10 degrees. 38 C.F.R. § 4.71(a), Diagnostic Code 5252. Under Diagnostic Code 5253, a 10 percent disability evaluation is assigned for limitation of thigh rotation, with an inability to toe-out more than 15 degrees or where there is limitation of adduction such that cannot cross legs. A 20 percent disability evaluation is warranted for limitation of thigh abduction, motion lost beyond 10 degrees. 38 C.F.R. § 4.71(a), Diagnostic Code, Diagnostic Code 5253. Diagnostic Code 5250 provides for ankylosis of the hip, and Diagnostic Code 5254 provides for flail joint of the hip. Diagnostic Code 5255 provides for impairment of the femur. 38 C.F.R. § 4.71(a), Diagnostic Codes 5250, 5254, and 5255. However, the Veteran does not have ankylosis, flail joint of the hip, or impairment of the femur; therefore, Diagnostic Codes 5250, 5254, and 5255 do not apply. Normal range of motion of the hip is 0 to 125 degrees of flexion and 0 to 45 degrees of abduction. 38 C.F.R. § 4.71(a), Plate II (2018). In May 2007, the Veteran was afforded a general medical VA examination. Range of motion testing revealed flexion of the left hip to 90 degrees, flexion of the right hip to 95 degrees, extension was to 20 degrees bilaterally, abduction to 40 degrees, and abduction to 20 degrees bilaterally. The VA examiner noted that the Veteran had pain with range of motion movements and stopped when the pain started. The Veteran did not have pain, weakness, or lack of endurance. Repetitive use testing did not increase loss of range of motion. The VA examiner further explained that it would be mere speculation to estimate range of motion loss with a flare-up. The Veteran did not have ankylosis. The Veteran did not have edema, effusion, instability, weakness, tenderness, redness, heat, or abnormal movement or guarding movement. In January 2013, the Veteran was evaluated by private physician, Dr. C.B., for his increasing right hip pain. The private physician noted that the Veteran did well in regard to his left hip. However, his right hip was progressively getting more painful. The Veteran was unable to do elliptical, but progressed to a reclining bike. Upon examination of the right hip, flexion was to 90 degrees, internal rotation was to 20 degrees, and external rotation was to 55 degrees. Internal rotation did not reproduce pain in the anterior mid-thigh region. The Veteran did not have lateral trochanteric pain or piriformis pain in the right hip. A left hip exam revealed flexion to 90 degrees, internal rotation to 25 degrees, and external rotation to 60 degrees. The Veteran did not have real pain with internal and external rotation of the left hip. He did not have lateral trochanteric pain of the left hip. In May 2013, the Veteran testified about his bilateral hip condition in a hearing before the Board. The Veteran reported that he could not plant and pivot due to his bilateral hip condition. If he stayed in a standing position for a long period of time, his hips would lock. He reported that he was taking Celebrex for the pain in his hips. In July 2014, the Veteran submitted a letter dated June 2013 from his private physician, Dr. C.B. Dr. C.B. reported that he had the privilege of reviewing the Veteran’s medical records. The private physician noted that the Veteran had a history of right vascular fibular graft done in December 2005 and a left one done in March of 2006 for avascular necrosis. The Veteran’s left hip had done well, but the right hip was progressively worsening for him with pain in the hip referred laterally. The Veteran had been unable to have any improvement with modification of his activities, and even a reclining bike or elliptical caused him pain. The Veteran also had difficulty for long periods of standing in the operating room where he worked. The Veteran was currently using Celebrex only with occasional intermittent improvement. On examination, the Veteran’s right hip had restricted range of motion in his hip with forward flexion to about 90 degrees, internal rotation to 20 degrees, external rotation to 55 degrees. The Veteran had pain with the extremes as well as positive signs of impingement. The Veteran had tenderness over his iliopsoas as well as mildly snapping with internal hip causes mild discomfort. The private physician opined that the Veteran should have a 40 percent rating due to symptoms of definitive impairment of health objectively support by examination findings or incapacitating patient occurring 3 or more times a year under 38 C.F.R. § 4.71(a), Diagnostic Code 5002 for rheumatoid arthritis. The Veteran underwent a right total hip replacement on May 13, 2015. In December 2015, the Veteran went to a private orthopedic specialist, Dr. M.T.C., to have his hips evaluated. Dr. M.T.C. reported that the Veteran’s range of motion revealed flexion to 130 degrees, extension to 0 degrees, external rotation to 50 degrees, internal rotation to 20 degrees, abduction of 40 degrees, and adduction of 30 degrees, for the Veteran’s left hip and right hip. The private physician reported that the Veteran had excellent range of motion and good strength six months after right total hip replacement. Dr. M.T.C. opined that the Veteran’s issue was probably just the bone adjusting to the implant. In February 2016, the Veteran was afforded a VA examination for his hip conditions. The Veteran was diagnosed with residuals of status post surgery avascular necrosis right and left femoral head; and residuals of right hip replacement. The VA examiner reported that the Veteran stated that he had done well in regard to his left hip, but the right hip was progressively getting worse for him with pain in the hip referred laterally. All activities, even a reclining bike or elliptical, caused him pain. The Veteran had difficulty when he stood for long periods in the operating room. The Veteran did not report flare-ups of the hip. However, the Veteran reported having functional loss or functional impairment of the hip. The VA examiner noted that the Veteran’s left hip flexion was mildly decreased, but the Veteran did not have pain. The Veteran reported that he had pain in his right hip, but it improved after his hip replacement on the right in May 2015. The range of motion had improved. Initial range of motion testing of the right hip revealed flexion to 90 degrees, extension to 30 degrees, abduction to 40 degrees, and adduction to 25 degrees. External rotation was to 60 degrees and internal rotation to 30 degrees. The ranges of motion that exhibited pain were flexion, extension, adduction, and internal rotation. Initial range of motion testing in the left hip revealed flexion to 110 degrees, extension to 30 degrees, abduction to 45 degrees, and adduction to 25 degrees. External rotation of the left hip was to 60 degrees and internal rotation of the left hip was to 40 degrees. The range of motion contributed to a functional loss. The VA examiner noted that pain did not result in or cause functional loss. Repetitive use testing did not reveal additional loss of function or range of motion in the left or right hip. The Veteran did not have ankylosis in the right or left hip. The VA examiner noted that the Veteran had total right hip joint replacement in May 2015. The VA examiner noted that the Veteran had scars, but they were not painful or unstable or had a total area equal to or greater than 39 square centimeters. The scars were not located on the Veteran’s head, face, or neck. The VA examiner reported that the Veteran did not use any assistive devices as a normal mode of locomotion. In March 2018, the Veteran was afforded a VA examination for his hip conditions. The Veteran was diagnosed with right hip osteoarthritis and avascular necrosis of both hips. The Veteran had sharp, knife-like pain that was intermittent and random in his right hip. He alleviated this pain through rest, ice, topical menthol cream, and taking Celebrex. The Veteran reported that after he performs range of motion maneuvers of his right hip, he had problems with catching and releases and achiness thereafter, occurring monthly. In the left hip, the Veteran reported sore achiness in his left hip, but he did not report “catching” of the hip or discomfort at the fibula flap donor area of the lower leg. The Veteran reported that he only had flare-ups in his left hip. The flare-ups were severe and he had to rest and massage his hip. The flare-ups were intermittent and occurred situational to increased weight bearing. Initial range of motion testing in the right hip revealed forward flexion to 125 degrees, extension to 15 degrees, abduction to 35 degrees, and adduction to 15 degrees. The Veteran’s adduction was not limited such that he could not cross his legs. External rotation was to 30 degrees and internal rotation was to 15 degrees. The Veteran exhibited pain in adduction, which caused functional loss. Initial range of motion testing in the left hip revealed flexion to 105 degrees, extension to 15 degrees, abduction to 35 degrees and adduction to 20 degrees. Adduction was not limited such that the Veteran could not cross his legs. External rotation of the left hip was to 30 degrees and internal rotation of the left hip was to 15 degrees. It was noted that pain at the flexion range of motion caused functional loss. The Veteran had pain on weight bearing. The Veteran was able to perform repetitive use testing with both his right and left hip, but there was no additional loss of function or range of motion after three repetitions. The Veteran did not have ankylosis of the right or left hip. The VA examiner reported that the Veteran had total hip joint replacement on the right side; however, did not specify the residuals. The VA examiner reported that the Veteran did not use any assistive devices as a normal mode of locomotion. 1. Entitlement to an initial rating in excess of 30 percent from July 1, 2016 for residuals of status post total right hip replacement. A rating in excess of 30 percent from July 1, 2016 for residuals of status post total right hip replacement is not warranted under 38 U.S.C. § 4.71(a), Diagnostic Code 5054. During the Veteran’s March 2018 VA examination, the Veteran reported sharp, intermittent pain in his right hip, which he alleviated through rest, topical menthol cream, and taking Celebrex. Initial range of motion testing revealed forward flexion to 125 degrees, extension to 15 degrees, abduction to 35 degrees, and adduction to 15 degrees. Furthermore, the February 2016 and March 2018 VA examinations did not show that the Veteran had ankylosis of the right hip. The Veteran did not have malunion or nonunion of the femur, flail hip joint, or leg length discrepancy. The Veteran did not have impairment of the femur with knee or hip disability. The evidence does not show x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. Range of motion far exceeded that which would warrant a compensable evaluation. Based on the foregoing, the Veteran’s disability has not been manifested by moderately severe residual weakness, pain or limitation of motion following implantation of his prosthesis. Therefore, a 30 percent rating under 38 C.F.R. § 4.71(a), Diagnostic Code 5054, more closely approximates the Veteran’s disability than would a higher rating. In conclusion, the Board finds that the preponderance of the evidence is against the assignment of a disability rating in excess of 30 percent for residuals of status post total right hip replacement. The benefit-of-the-doubt rule does not apply, and the claim for an initial increased rating for the service-connected residual status post total right hip replacement must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 2. Entitlement to an initial rating in excess of 10 percent from April 3, 2007 to May 12, 2015 for right hip status post avascular necrosis. An initial rating in excess of 10 percent from April 3, 2007 to May 12, 2015, for the Veteran’s service-connected right hip post avascular necrosis is not warranted. In a letter, dated June 2013, the Veteran’s private physician, Dr. C.B., opined that the Veteran’s right hip disability should have a 40 percent rating under 38 C.F.R. § 4.71(a), Diagnostic Code 5002, due to symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring 3 or more times a year. However, the Board finds that the Veteran’s right hip disability is more appropriately rated under Diagnostic Codes 5019-5252. He does not have rheumatoid arthritis. During his May 2007 VA examination, range of motion testing revealed flexion of the right hip to 95 degrees, extension to 20 degrees, abduction to 40 degrees, and adduction to 20 degrees bilaterally. In a June 2013 report, the Veteran’s private physician, Dr. C.B., reported that the Veteran’s right hip was progressively worsening. On examination, the Veteran’s right hip had restricted range of motion with forward flexion to 90 degrees, internal rotation to 20 degrees, and external rotation to 55 degrees. Furthermore, medical records did not show that the Veteran had ankylosis of the right hip. The Veteran did not have malunion or nonunion of the femur, flail hip joint, or leg length discrepancy. The Veteran did not have impairment of the femur with knee or hip disability. Further, the evidence does not show x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. Range of motion far exceeded that which would warrant a compensable evaluation. Therefore, a 10 percent rating more closely approximates the Veteran’s disability than would a higher rating. The 10 percent rating accounts for the Veteran’s complaints of right hip pain. See 38 C.F.R. § 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). In conclusion, the Board finds that the preponderance of the evidence is against the assignment of an initial disability rating in excess of 10 percent for right hip status post avascular necrosis. The benefit-of-the-doubt rule does not apply, and the claim for an initial increased rating for the service-connected right hip disability must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 3. Entitlement to an initial rating in excess of 10 percent for left hip status post avascular necrosis. An initial rating in excess of 10 percent for the Veteran’s service-connected left hip status post avascular necrosis is not warranted. A May 2007 VA examination revealed that the Veteran’s left hip had flexion to 90 degrees, extension to 20 degrees, abduction to 40 degrees, and adduction to 20 degrees. Further, in a June 2013 report, the Veteran’s private physician, Dr. C.B., reported that the Veteran’s left hip had done well after surgery. Examinations between January 2013 and February 2016 disclosed flexion to between 90 and 130 degrees. During his March 2018 VA examination, the Veteran reported sore achiness in his left hip, but he did not report “catching” of the hip or discomfort at the fibula flap donor area of the lower leg. Range of motion testing revealed flexion of the left hip to 105 degrees, extension to 15 degrees, abduction to 35 degrees, and adduction to 20 degrees. The March 2018 VA examiner reported that the Veteran did not use any assistive devices as a normal mode of locomotion. Furthermore, medical records did not show that the Veteran had ankylosis of the left hip. The Veteran did not have malunion or nonunion of the femur, flail hip joint, or leg length discrepancy. The Veteran did not have impairment of the femur with knee or hip disability. Further, the evidence does not show x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. Range of motion of the hip at all examinations greatly exceeded that which would warrant a compensable evaluation. Therefore, a 10 percent rating more closely approximates the Veteran’s disability than would a higher rating. The 10 percent rating accounts for the Veteran’s complaints of left hip pain. See 38 C.F.R. § 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). In conclusion, the Board finds that the preponderance of the evidence is against the assignment of an initial disability rating in excess of 10 percent for left hip status post avascular necrosis. The benefit-of-the-doubt rule does not apply, and the claim for an initial increased rating for the service-connected left hip disability must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). BARBARA B. COPELAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Crawford, Associate Counsel