Citation Nr: 1814486 Decision Date: 03/13/18 Archive Date: 03/19/18 DOCKET NO. 14-31 091 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in White River Junction, Vermont THE ISSUE Entitlement to a rating in excess of 10% for the Veteran's service-connected left hip arthritis for the period of appeal from December 1, 2009 through October 18, 2010. ATTORNEY FOR THE BOARD A. Boal, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1990 to March 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2010, February 2011, May 2011 and September 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in White River Junction, Vermont. Significantly, the October 2010 rating decision granted service connection for the left hip arthritis and assigned a 10 percent evaluation effective December 1, 2009 under Diagnostic Code 5252-5010. The Veteran requested reconsideration of this evaluation in a January 2011 statement and submitted additional evidence in support of the claim triggering consideration of 38 C.F.R. § 3.156(b). The February 2011 rating decision deferred a decision on entitlement to an evaluation in excess of 10 percent for the left hip arthritis for the period December 1, 2009 to October 18, 2010 under Diagnostic Code 5252-5010 and granted an increased 100 percent evaluation effective October 19, 2010 for left hip replacement under Diagnostic Code 5054 and assigned an evaluation of 30 percent for the left hip replacement effective December 1, 2011. The May 2011 rating decision continued the 10 percent evaluation for the left hip arthritis for the period from December 1, 2009 until October 18, 2010. The September 2011 rating decision also continued the 10 percent rating for that period. In her April 2012 Notice of Disagreement the Veteran specifically disagreed with the evaluation of the left hip arthritis in excess of 10 percent for the December1, 2009 through October 18, 2010. In June 2014, during the pendency of appeal, the RO issued a decision which essentially changed the Diagnostic Code for the left hip arthritis for the period from December 1, 2009 until October 18, 2010 as it assigned a separate rating for left hip arthritis with impairment of the thigh with an evaluation of 10 percent under Diagnostic code 5003-5253 and indicated the left hip arthritis under Diagnostic Code 5003-5252 was noncompensable for the period from December 1, 2009 until October 19, 2010. The Federal Circuit has held that service connection for a "disability" is not severed simply because the situs of a disability, or the Diagnostic Code associated with it, is corrected to more accurately determine the benefit to which a veteran may be entitled for a service connected disability. See Read v. Shinseki, 651 F.3d 1296 (Fed. Cir. 2011). As such, while the original Diagnostic Code was no longer used in rating the Veteran's disability, it was not taken away. Rather, a different, more appropriate, Diagnostic Code was substituted. FINDINGS OF FACT The Veteran's service-connected left hip disability manifested with painful motion, range of motion limited to 50 degrees, limitation of flexion of the thigh to greater than 45 degrees, limitation of extension of the thigh to greater than 5 degrees, limitation of adduction greater than 10 degrees, limitation of rotation to 15 degrees without evidence of ankylosis, flail hip joint, or impairment of femur. CONCLUSIONS OF LAW For the entire period of appeal from December 1, 2009 through October 19, 2010, the criteria for the assignment of a rating in excess of 10 percent for left hip arthritis are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5253 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information and any medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159 (b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA notice letters must also include notice of a disability rating and an effective date for award of benefits if service connection is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Here, the RO provided a notice letter to the Veteran in December 2009, prior to the adjudication of the claims for service connection. The letter notified the Veteran of what information and evidence must be submitted to substantiate the claims for service connection, what information and evidence must be provided by the Veteran, and what information and evidence would be obtained by VA. The Veteran was told to inform VA of any additional information or evidence that VA should have, and was told to submit evidence to the RO in support of her claims. The letter also provided the Veteran with notice of the type of evidence necessary to establish a disability rating and effective date. The content of the letters complied with the requirements of 38 U.S.C. § 5103 (a) and 38 C.F.R. § 3.159 (b). The Veteran's claims for higher initial ratings are downstream issues, which were initiated by a notice of disagreement. The Court has held that, as in this case, once a notice of disagreement from a decision establishing service connection and assigning the rating and effective date has been filed, the notice requirements of 38 U.S.C. §§ 5104 and 7105 control as to the further communications with the appellant, including as to what "evidence [is] necessary to establish a more favorable decision with respect to downstream elements..." Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). Thus, there is no duty to provide additional notice with regard to the claims. The record establishes that the Veteran has been afforded a meaningful opportunity to participate in the adjudication of his claims. The Board notes that there has been no allegation from the Veteran or his representative that he has been prejudiced by any of notice defects. See Shinseki v. Sanders, 556 U.S. 396 (2009). Thus, there is no prejudice to the Veteran in the Board's considering the issues on their merits. The Board finds that the duty to notify provisions have been fulfilled. The Board further finds that all relevant evidence has been obtained, and the duty to assist requirements have been satisfied. All available service treatment records (STRs) and medical records, along with the Veteran's private medical records, have been obtained and are associated with the claims file. The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding relevant evidence. The Veteran underwent a VA examination in August 2010 to obtain medical evidence regarding the nature and severity of the disabilities. An addendum opinions was obtained in June 2014. The Board finds the VA examination to be adequate for adjudication purposes. The examinations was performed by medical professionals based on review of the claims file, solicitation of history and symptomatology from the Veteran, and examination of the Veteran. The examination reports are accurate and fully descriptive and opinion is provided as the severity of the disabilities. As such, the Board finds that the Veteran has been afforded an adequate examination. The Board finds that VA's duty to assist has been met. See 38 C.F.R. § 3.159 (c)(4); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the duties to notify and assist the Veteran have been met, and no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claims. Law and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. §§ 3.321 (a), 4.1, 4.21. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Fenderson v. West, 12 Vet. App. 119 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40 ; DeLuca v. Brown, 8 Vet. App. 202, 205 (1995). It is essential that the examination on which ratings are based adequately portray the anatomical damage and functional loss with respect to all these elements. Id. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology or evidenced by visible behavior of the claimant undertaking the motion. Id. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id. The factors involved in evaluating and rating disabilities of the joints include weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); excess fatigability; incoordination (impaired ability to execute skilled movements smoothly); more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); or pain on movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. Under 38 C.F.R. § 4.59, with any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to the affected joints. The intent of the rating schedule is to recognize painful motion with joint or particular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. In DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court held that for disabilities evaluated on the basis of limitation of motion, VA was required to apply the provisions of 38 C.F.R. §§ 4.40 and 4.45, pertaining to functional impairment. The Court instructed that in applying these regulations, VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, or incoordination. Such inquiry was not to be limited to muscles or nerves. These determinations were, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, or incoordination. In Burton v. Shinseki, 25 Vet. App. 1 (2011), the Court held that consideration of 38 C.F.R. § 4.59 is not limited to cases involving arthritis, thereby providing for the possibility of a rating based on painful motion of a joint, regardless of whether the painful motion stemmed from joint or periarticular pathology. The Court held that pain must affect some aspect of the normal working movements of the body such as excursion, strength, speed, coordination and endurance to constitute functional loss. Mitchell v. Shinseki, 24 Vet. App. 32, 33, 43 (2011). Although pain may cause functional loss, pain, itself, does not constitute functional loss and is just one factor to be considered when evaluating functional impairment. Id. The Court explained in Mitchell that, pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Consequently, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Board notes, however, that the Court has held that 38 C.F.R. § 4.40 does not require a separate rating for pain but rather provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). The Veteran's left hip arthritis is rated under Diagnostic Code 5253, for limitation of rotation of thigh, cannot toe-out more than 15 degrees. Under this diagnostic code, a limitation of adduction or inability to cross legs would also result in a 10 percent disability rating. A 20 percent rating is warranted for limitation of abduction of the thigh, motion lost beyond 10 degrees. 38 C.F.R. § 4.71a. 38 C.F.R. § 4.71a, Diagnostic Codes 5250 through 5255 set forth other potentially relevant provisions for disabilities of the hip and thigh. The Schedule provides that the normal range of motion of the hip includes from zero degrees to 125 degrees of flexion and from zero degrees to 45 degrees of abduction. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5250 governs ankylosis of the hip, and provides a 60 percent rating for favorable ankylosis, in flexion at an angle between 20 degrees and 40 degrees, and in slight adduction or abduction. A 70 percent rating is provided for intermediate unfavorable ankylosis. A 90 percent rating for extremely unfavorable ankylosis, the foot not reaching the ground, crutches necessary. 38 C.F.R. § 4.71a. Diagnostic Code 5251, which governs limitation of thigh extension, provides 10 percent for extension limited to 5 degrees as its sole disability rating. Id. Diagnostic Code 5252, which governs limitation of thigh flexion, provides 10 percent for flexion limited to 45 degrees, 20 percent for flexion limited to 30 degrees, 30 percent for flexion limited to 20 degrees, and a maximum 40 percent for flexion limited to 10 degrees. Id. Diagnostic Code 5254 provides an 80 percent rating for flail hip joint. Id. Diagnostic Code 5255, for impairment of the femur, provides a 10 percent rating for malunion of the femur with slight knee or hip disability. A 20 percent rating is warranted for malunion of the femur with moderate knee or hip disability, and a 30 percent rating is warranted for malunion of the femur with marked knee or hip disability. Fracture of the surgical neck of, with false joint, warrants a 60 percent rating. Fracture of the shaft or anatomical neck of the femur, with nonunion, without loose motion, weight bearing preserved with aid of brace also warrants a 60 percent rating. Fracture of the shaft or anatomical neck of femur with nonunion, with loose motion (spiral or oblique fracture) warrants an 80 percent rating. Id. Arthritis shown by X-ray studies is rated based on limitation of motion of the affected joint. When limitation of motion would be noncompensable under a limitation-of-motion code, but there is at least some limitation of motion, a 10 percent rating may be assigned for each major joint so affected. 38 C.F.R. § 4.71, Diagnostic Codes 5003, 5010. Diagnostic Code 5010 (traumatic arthritis) directs that arthritis be rated under Diagnostic Code 5003 (degenerative arthritis), which states that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. The 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, X-ray evidence of arthritis involving two or more major or minor joint groups will warrant a 10 percent rating, and two or more major or minor joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. The 10 percent and 20 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003 Note 1. Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C.A. § 7104 (a). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102 , 4.3. Background The Veteran is service-connected for left hip arthritis. The Veteran is rated as 10 percent disabled under diagnostic code 5253-5010 for the period of appeal from December 1, 2009 to October 19, 2010. The Veteran was rated 100 percent disabled for the period of October 19, 2010 to December 1, 2011 and 30 percent disabled from December 1, 2011. The Veteran contends that her left hip arthritis warrants higher rating than currently assigned for the period of December 1, 2009 to October 19, 2010, prior to receiving total hip arthroplasty surgery. The Veteran provided private medical evidence showing that the Veteran suffered from end stage osteoarthritis of the left hip and that the Veteran ambulated with a moderate limp. Range of motion of the left hip was limited to 80 degrees of flexion, 0 degrees of internal rotation and 20 degrees of external rotation. The Veteran's knee examination was normal. The Veteran's motor, sensory and reflex exams were normal. The Veteran received steroid injections and took prescription medication for pain. Other private medical evidence shows the Veteran's range of motion of the left hip was limited to 80 degrees of flexion, 0 degrees of internal rotation and 20 degrees of external rotation and that the Veteran was using a walker to ambulate. Hip flexion was limited to 80 degrees with no rotation present. The Veteran's private physician noted some shortening on the left leg as compared to the right and that x-rays show significant collapse of the femoral head when compared to prior studies and diagnosed the Veteran with "end stage left hip arthritis with apparent avascular necrosis" and used a walker to ambulate. The Veteran underwent a VA examination in August 2010 which showed painful motion, clicking and guarding and an antalgic gait. The examiner reported that the Veteran had difficulty rising from the seated position but no unusual show wear pattern that would indicate abnormal weight bearing. The examination showed that the Veteran's active range of motion of the left hip was limited to 50 degrees of flexion with pain beginning at 50 degrees, 30 degrees of extension with pain beginning at 30 degrees, 20 degrees of adduction with pain beginning at 20 degrees, 25 degrees of abduction with pain beginning at 25 degrees, 15 degrees of external rotation with pain beginning at 15 degrees and 10 degrees of internal rotation with pain beginning at 10 degrees. The VA examiner reported no additional limitations with repetitive use testing after 3 repetitions. The examiner indicated that imaging studies showed that the Veteran suffered from "marked degenerative change in the left hip joint with considerable flattening and deformity to the left femoral head." The Veteran has a diagnosis of history of slipped capital femoral epiphysis (SCFE) status-post open reduction and internal fixation (ORIF). The VA examiner opined that the Veteran now had severe arthritis of the left hip and that there is moderately severe functional impairment due to pain and limited range of motion. The examiner reported no additional loss of motion due to pain, fatigue, weakness, stiffness, or lack of endurance following repetitive use and moderate to severe functional impairment due to pain and limited range of motion as outlined in the examination results. A retrospective opinion was obtained in June 2014 to determine whether there was evidence of malunion of the femur present during the August 2010 examination. The VA examiner confirmed that there was no malunion present on the radiological evidence and that there was insufficient evidence or objective examination findings that would provide a reliable prediction of decreased functional ability during flare-ups or when the hip was used repeatedly over time and that it was not possible, without resorting to speculation, to predict within a reasonable degree of medical certainty, a potential loss of range of motion manifested as a consequence of a flare or exacerbation outside of the clinical setting. The Board acknowledges that the Veteran stated that the reason she showed no unusual shoe wear pattern was because she was wearing new shoes to the examination and that she had difficulty and had to lift her pant leg during the examination to move her hip, and that the Veteran reported that the technician who performed the examination informed her that her left hip was loose and came out of the socket. The Veteran also submitted statements from coworkers describing symptoms that they observed. Significantly, S. N., a LCN, provided a statement that the Veteran had severe arthritis around 2009, she could only bear partial weight on the hip and relied on crutches to get around. Ms. N. reported that by January 2010, even partial weight bearing was precluded and indicated there was an audible clicking and giving out of the hip. She described the Veteran as having no active range of motion of the hip and indicated the left leg essentially dragged behind the walker. T.S., another RN, reported that in 2009 the Veteran's left hip had worsened and by December of that year she was unable to bear full weight on the hip, used a cane and crutches to allow for partial weight bearing. By early 2010, she required a walker and was unable to bear weight on the hip without it giving way and had no use or active motion in that hip. Under diagnostic code 5253, a higher disability rating of 20% is not available unless the evidence shows limitation of abduction, motion lost beyond 10 degrees. Here the medical evidence shows that the Veteran has 25 degrees of abduction. The Board carefully considered the Veteran and T.S. and S.N.'s statement that she had no active range of motion. While the Board considered their observations, there is no indication that Ms. N. took full range of motion measurements with goniometer. While they reported no active range of motion, the March 2011 addendum clearly indicated the findings reported on the 2010 examination reflected active range of motion. Furthermore, private medical records also reflected range of motion findings consistent with the examination. Accordingly, the statements are less probative on the issue of the range of motion. The Board has considered whether a separate or higher rating is warranted under an alternative diagnostic code, but finds that no alternate or additional ratings are warranted. Under diagnostic code 5251, extension must be limited to 5 degrees in order to warrant a separate compensable rating. There is no evidence that the Veteran has ever been found to have right hip ankylosis, malunion or nonunion of the femur, or flail hip joint to warrant consideration of Diagnostic Codes 5250 (ankylosis), 5254 (flail joint), or 5255 (impairment of femur). The evidence also does not reflect that the Veteran has ever been found to have flexion limited to 45 degrees or to warrant a higher rating under Diagnostic Codes 5252 (limitation of flexion). The Board has considered whether a disability rating higher than 10 percent is warranted for this period of appeal based on functional loss due to pain or weakness, fatigability, incoordination, or pain on movement of a joint as clearly the Veteran has significant pain as reported during her hearing and in buddy statements. The Court held, however, that pain must affect some aspect of the normal working movements of the body such as excursion, strength, speed, coordination and endurance to constitute functional loss. Mitchell v. Shinseki, 24 Vet. App. 32, 33, 43 (2011). Although pain may cause functional loss, pain, itself, does not constitute functional loss and is just one factor to be considered when evaluating functional impairment. Id. In this case, there is no basis for the assignment of additional disability due to pain, weakness, fatigability, weakness, or incoordination. See 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The August 2010 VA examiner noted pain at the endpoints of motion. Furthermore, the examiner tested the hip after repetitive use; however, repetitive use did not further limit the range of motion. Thus, any additional limitation due to pain did not more nearly approximate a finding of flexion limited to 45 degrees or limited abduction with motion lost beyond 10 degrees. See 38 C.F.R. § 4.45 , 4.71a; DeLuca, 8 Vet. App. at 202; Mitchell v. Shinseki, 25 Vet. App. 32 (2011). As such, a rating in excess of 10 percent for the left hip is not warranted at any point during the period of appeal. ORDER A rating in excess of 10 percent for the Veteran's service-connected left hip arthritis is denied. ____________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs