Citation Nr: 1808507 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 12-31 210A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for heterotopic bone at insertion site of Kuntsher rod in greater trochanter of the right hip. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD I. Umo, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Marine Corps from June 1975 to June 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Additionally, the Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for TDIU is part of an increased or initial rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. Here, a claim for TDIU has been raised by the record. The Board previously remanded this appeal in April 2017 for additional development. The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT The Veteran's right hip is manifested by pain and functional impairment with flexion to 65 degrees, extension to 10 degrees, abduction to 20 degrees, adduction to 10 degrees, external rotation to 15 degrees and internal rotation to 10 degrees; there is no competent evidence of any ankylosis, flail joint, or impairment of the femur, or an inability to cross his leg and/or toe-out more than 15 degrees. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 10 percent for heterotopic bone at insertion site of Kuntsher rod in greater trochanter of the right hip have not been met. 38 U.S.C. § 1101, 1131, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5250-5254 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duty to Notify & Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A and 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The duty to notify has been met. See the July 2011 VCAA letter. Neither the Veteran, nor his representative, has alleged prejudice with regard to notice. The Federal Circuit Court of Appeals has held that "absent extraordinary circumstances ... it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran ...." Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In light of the foregoing, nothing more is required. The VCAA, codified in pertinent part at 38 U.S.C. §§ 5103, 5103A (2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2017), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The record reflects that all available records pertinent to the claim have been obtained. The Veteran has not identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claims. II. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3 (2017). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 should be considered. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. Id. In evaluating 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, restricted or excess movement of the joint, pain on movement, and weakness. Id. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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 (2017). In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. Regulation also specifies that when testing joints, the joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing, and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59 (2017). Furthermore, the Court has held that VA examinations must comply with Section 4.59 to be adequate. Correia v. McDonald, 28 Vet. App. 158, 168-169 (2016). The Veteran's service-connected heterotopic bone at insertion site of Kuntsher rod in greater trochanter of the right hip is currently rated at 10 percent disabling under Diagnostic Code 5253. Diagnostic Code 5253 provides evaluation of thigh impairment based on limitation of abduction and adduction, and limitation of rotation. A 10 percent disability rating is warranted for limitation of rotation of thigh, cannot toe-out more than 15 degrees, as well as limitation of adduction, cannot cross legs. A 20 percent disability rating is warranted for limitation of abduction of thigh, motion lost beyond 10 degrees. 38 C.F.R. § 4.71a. Other applicable diagnostic codes concerning the hip are 5250-5254. DC 5250 provides for ankylosis of the hip. A 60 percent disability is warranted for favorable ankylosis in flexion at an angle between 20 and 40 degrees, and slight adduction or abduction. A 70 percent disability is warranted for intermediate ankylosis of the hip. A 90 percent rating is warranted for unfavorable ankylosis, with extremely unfavorable ankylosis or the foot not reaching the ground necessitating the use of crutches. 38 C.F.R. § 4.71a. DC 5251 provides evaluation for limitation of extension of the thigh. A 10 percent disability rating is warranted for extension limited to 5 degrees. 38 C.F.R. § 4.71a. DC 5252 provides evaluation for limitation of flexion of the thigh. A 10 percent disability rating is warranted for flexion limited to 45 degrees. A 20 percent disability rating is warranted for flexion limited to 30 degrees. A 30 percent disability rating is warranted for flexion limited to 20 degrees. A 40 percent disability rating is warranted for flexion limited to 10 degrees. 38 C.F.R. § 4.71a. DC 5254 provides evaluation for flail joint of the hip. An 80 percent disability rating is warranted for flail joint of the hip. 38 C.F.R. § 4.71a. Normal ranges of motion of the hip are hip flexion from 0 to 125 degrees, and hip abduction from 0 to 45 degrees. 38 C.F.R. § 4.71, Plate II. Likewise, normal range of motion is adduction from 0 to 25 degrees, external rotation from 0 to 60 degrees, internal rotation from 0 to 40 degrees. See March 2016 DBQ. Here, the Veteran underwent a hip and thigh DBQ examination in May 2012. The Veteran reported he sustained a fracture of the right femur in April 1977. A rod was placed to the bone, but it was later removed in August 1978. He stated he was fine until nine years ago when he began to have right hip pain. He was diagnosed with heterotopic ossification of the right hip. He stated that the pain changed twenty months ago and dramatically increased to the point that he does not sleep. He reported that this condition has drastically affected his other health, and he described this as not being able to walk. The Veteran complained of flare-ups at nighttime that prevented him from sleeping. He added that his hip pain increased after walking from 100 feet to a half block, and this causes his hip to swell. The Veteran was unable to undergo range of motion testing during the examination due to his complaints of pain. The Veteran exhibited localized tenderness or pain to palpation on the right hip. He suffers from leg length discrepancy, but no malunion or nonunion of the femur, flail hip joint, or ankylosis. X-rays revealed mild arthrosis of the hip joint with unchanged appearance of the heterotopic bone/unfused fracture fragment of the right greater trochanter. In March 2016, the Veteran underwent a hip and thigh DBQ. The Veteran reported persistent pain in the right hip, indicated he was unable to walk, his feet crack and was unable to put weight on his feet. He said he was not able to walk over ten minutes without his walker, any other distance he has to use his walker, he was able to drive and able to do his own living activities. The Veteran reported flare-ups of the hip and thigh. The Veteran described that any activity he does aggravates his side. He added that he has functional loss, as he is unable to do any activity. During the examination, the Veteran's right hip was manifested by flexion to 110 degrees, extension to 15 degrees, abduction to 25 degrees, adduction to 20 degrees, external rotation to 40 degrees, and internal rotation to 30 degrees, with objective evidence of pain for all movements. The Veteran's adduction was limited such that he could not cross his legs. The examiner noted that his range of motion contributed to functional loss because of the Veteran's difficulty with prolonged standing. Additionally, there was evidence of pain with weight bearing. In May 2017, the Veteran underwent another hip and thigh DBQ. The Veteran reported that he had trouble walking, where he could no longer walk more than 100 feet without pain. He stated that he spends 99 percent of his time in his apartment due to his hip pain. The reported flare-ups of his hip, stating it's a sharp stabbing throbbing pain in the tissue of the right hip. He also reported functional loss, in that he could not walk more than 100 feet without pain and swelling. During the examination, the Veteran's right hip was manifested by flexion to 65 degrees, extension to 10 degrees, abduction to 20 degrees, adduction to 10 degrees, external rotation to 15 degrees, and internal rotation to 10 degrees, with objective evidence of pain for all movements. His abnormal range of motion contributed to functional loss in that there was a reduction of the normal excursion decreasing efficiency in performance of physical activities requiring full range of motion. There was tenderness to palpation of the posterior hip near the surgical incision site. The Veteran was not examined immediately after repetitive use. The examiner indicated that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. Likewise, the Veteran was not examined during a flare-up. The Veteran has normal strength with flexion, extension, and abduction in the right hip. There was no indication of ankylosis, malunion or nonunion of the femur, or flail hip joint. There was, however, leg length discrepancy of two centimeters. There were no other pertinent findings, complications, conditions, or signs or symptoms. The Veteran does have a scar from where the pin was inserted but the scar is not painful, unstable, and is smaller than 6 square inches. The Veteran does use a walker for locomotion. X-ray results revealed heterotopic ossification just superior to the greater trochanter, predominately within the distal gluteus medius muscle and fascial tissues. The examiner indicated the Veteran had a torn right acetabular labrum with adjacent intermediate grade chondral loss; moderate right gluteus medius tendinosis with overlying moderate trochanteric bursitis; and an incompletely imaged likely severe degenerative disc disease at L3-L4. The Veteran had pain on passive range of motion testing. There was evidence of pain when the joint was used in non-weight bearing also. After reviewing the evidence of record, the Board finds that a rating in excess of 10 percent for the Veteran's heterotopic bone at insertion site of Kuntsher rod in greater trochanter of the right hip is not warranted as there is no evidence of limitation of abduction that resulted in motion lost beyond 10 degrees, so as to warrant a 20 percent rating under DC 5253. Likewise, there was no indication of ankylosis; no limitation of flexion to 30 degrees; no hip flail joint; or malunion or nonunion of the femur to warrant a 20 percent or higher rating under DCs 5250 - 5255. In all the VA examinations and treatment records, pain was noted but no loss of range of motion beyond 65 degrees flexion was observed or limitation of abduction of motion lost beyond 10 degrees. Collectively, testing results showed limitations, which account for pain, flares and repetitive use. The VA examinations and reports from March 2016 and May 2017, evidenced no limitation of abduction of motion beyond 10 degrees, and no loss of range of motion beyond 65 degrees in flexion after accounting for active or passive range of motion, loss due to weakness, lack of endurance, incoordination or instability, and repetitive use. The Board is cognizant of the Veteran's competency and credibility to report pain and other observed symptomatology. However, even considering additional functional loss due to pain, there is no evidence that limitation of abduction of motion lost beyond 10 degrees; no ankylosis; no limitation of flexion to 30 degrees; no hip flail joint; or malunion or nonunion of the femur. As demonstrated, the range of motion findings considered here, and the 10 percent disability rating currently assigned, already account for functional loss due to painful movement. The Board has considered the applicability of other potential diagnostic codes for higher or separate ratings. The Veteran is already in receipt of separate ratings for residuals of his hip condition, including scars and leg length discrepancy, under DCs 5275 and 7804. As the evidence of record fails to demonstrate ankylosis, limitation of flexion to 30 degrees, flail joint, or impairment of the femur, the Veteran is not entitled to a higher or separate rating under Diagnostic Codes 5250, 5252, 5254, or 5255, respectively. Moreover, the level of disability has been consistent throughout the appeal and a staged rating is not warranted. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Accordingly, as the preponderance of the evidence is against a rating in excess of 10 percent for the Veteran's heterotopic bone at insertion site of Kuntsher rod in greater trochanter of the right hip, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. ORDER Entitlement to an evaluation in excess of 10 percent for heterotopic bone at insertion site of Kuntsher rod in greater trochanter of the right hip is denied. REMAND Although the Board regrets the additional delay, a remand is necessary to further develop the evidentiary record with respect to TDIU. Specifically, although several VA examinations have been conducted, none adequately address the impact the Veteran's service connected disabilities have on employment. Since employability has been raised by the record, the issue of entitlement to TDIU must be remanded to secure an additional opinion regarding the impact the Veteran's service connected disabilities have on employment. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding treatment records. All records/responses received must be associated with the claims file. 2. Also, schedule the Veteran for an examination with an appropriately qualified clinician to determine the impact the Veteran's service connected disabilities have on his employability. The claims file must be made available to, and reviewed by, the examiner. The examiner should be informed of each condition for which the Veteran is service connected. A complete employment history of the Veteran should be obtained, inclusive of the last date of full-time and/or part-time employment. An assessment of the Veteran's day-to-day functioning should be made. Information about the Veteran's level of education should also be obtained. After obtaining this information, the examiner is asked to discuss the Veteran's ability to function in an occupational environment and describe the functional impairment caused solely by his service-connected symptoms. The examiner should, for instance, describe the limitations and restrictions imposed by his service-connected impairments on such routine work activities as interacting with customers/coworkers and using technology, plus other such work activities as sitting, standing, walking, lifting, carrying, pushing, and pulling. The examiner is asked, if the Veteran is found likely to be able to work any physical or sedentary employment, to discuss the type or types of employment in which the Veteran would be capable of engaging, given his skill set and educational background. A report of the opinion should be prepared and associated with the claims file. A comprehensive rationale must be provided for all opinions rendered. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 3. After completing the development requested above and any other development deemed necessary, readjudicate the Veteran's claim of entitlement to TDIU. If the benefit sought is not granted in full, the Veteran and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto. The case should then be returned to the Board, if otherwise in order. The Veteran and his representative have the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ Donnie R. Hachey Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs