Citation Nr: 1817481	
Decision Date: 03/22/18    Archive Date: 04/03/18

DOCKET NO.  14-06 556	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to an increased disability evaluation for residuals of left superior and inferior pubic ramus stress fracture with limitation of extension, currently rated as 10 percent disabling.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Hallie E. Brokowsky, Counsel



INTRODUCTION

The Veteran served on active duty in the Army from November 2008 to September 2009.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.


FINDING OF FACT

Residuals of left superior and inferior pubic ramus stress fracture with limitation of extension are manifested by pain on motion.


CONCLUSION OF LAW

The criteria for a disability rating in excess of 10 percent for residuals of left superior and inferior pubic ramus stress fracture with limitation of extension have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5251 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA to provide claimants with notice and assistance.  38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).  The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  38 U.S.C. § 5103(a); 38 C.F.R. § 3.159 (b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006).

In this case, the agency of original jurisdiction (AOJ) issued notice letters to the Veteran.  These letters explained the evidence necessary to substantiate the Veteran's claim for an increased disability rating, as well as the legal criteria for entitlement to such benefits.  The letters also informed her of her and VA's respective duties for obtaining evidence.  The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice.  As such, there was no defect with respect to timing of the VCAA notice.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).

VA also has a duty to assist a veteran with the development of facts pertinent to the appeal.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c).  This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1).  VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim.  38 C.F.R. § 3.159(c)(4).

The claims file contains the Veteran's available service treatment records, reports of post-service treatment, and the Veteran's own statements in support of her claim.  The Veteran was afforded VA examinations responsive to her claim for an increased disability rating.  The opinions were conducted by a medical professional, following thorough examination of the Veteran, solicitation of history, and review of the claims file. The examination reports contain all the findings needed to rate the Veteran's service-connected disability on appeal, including history and clinical evaluation.  See 38 C.F.R. § 3.327(a) (2017); Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007).  The Board notes that the most recent examinations complied with the factors outlined in 38 C.F.R. § 4.59 and Correia v. McDonald, 28 Vet. App. 158 (2016), to the extent feasible.  

The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claim.  For these reasons, the Board finds that the VCAA duties to notify and assist have been met.

Disability Evaluation

Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4.  An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment.  38 C.F.R. § 4.10.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.  

Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged.  Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  Here, the service-connected disability on appeal has not materially changed and a uniform evaluation is warranted for the rating period on appeal.

In addition, when assessing the severity of a musculoskeletal disability that is rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination.  See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59.

The Veteran's residuals of left superior and inferior pubic ramus stress fracture with limitation of extension are rated pursuant to Diagnostic Code 5251 for limitation of motion of the thigh.  Diagnostic Code 5251 assigns a 10 percent disability evaluation where there is limitation of extension of the thigh to 5 degrees; no higher evaluation is provided under this Code.  

Diagnostic Codes 5252 and 5253 provide ratings for limitation of motion of the thigh. Here, the Veteran is in receipt of a separate, disability evaluations under Diagnostic Codes 5252 and 5253; she is evaluated for residuals of left superior and inferior pubic ramus stress fracture with limitation of flexion pursuant to Diagnostic Code 5252 and impairment of the left hip pursuant to Diagnostic Code 5253.  As such, these Diagnostic Codes are unavailable for evaluating the Veteran's claim for an increased rating for residuals of left superior and inferior pubic ramus stress fracture with limitation of extension.  The evaluation of the same manifestation under different diagnoses is to be avoided.  See 38 C.F.R. § 4.14.  The Court has emphasized that a claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity."  Brady v. Brown, 4 Vet. App. 203, 206 (1993). 

Normal range of motion for the hips consists of flexion to 125 degrees, extension to 0 degrees, and abduction to 45 degrees.  38 C.F.R. § 4.71a, Plate II.

Considering the rating criteria applicable to the Veteran's residuals of left superior and inferior pubic ramus stress fracture with limitation of extension, the evidence of record, reflects that the Veteran does not experience limitation of extension; the March 2012 and November 2017 VA examinations reflect that the Veteran has normal extension of 0 to 30 degrees; however, the Veteran has pain on motion.  See 38 C.F.R. § 4.59.  The Board notes that the Veteran had complaints of pain, but she did not have muscle atrophy, ankylosis, or malunion or nonunion of femur, flail hip joint or a leg length discrepancy.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5250, 5254, and 5255.  Muscle strength was full and reflexes were normal.   Thus, the Board finds that the Veteran's symptomatology due to residuals of left superior and inferior pubic ramus stress fracture with limitation of extension falls within the criteria for the currently assigned 10 percent disability evaluation.

In concluding the Veteran is not entitled to a higher rating for her residuals of left superior and inferior pubic ramus stress fracture with limitation of extension, the Board has considered whether she has additional functional loss, beyond that objectively shown, due to pain, or because of weakness, premature or excess fatigability, incoordination, etc.  See DeLuca, supra.  Nonetheless, there is no indication in the record that her functional ability is decreased (see November 2017 VA examination report).  As a result, the evidence of record reveals manifestations consistent with the currently assigned 10 percent disability rating for residuals of left superior and inferior pubic ramus stress fracture with limitation of extension.  See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).


ORDER


Entitlement to a disability evaluation in excess of 10 percent for residuals of left superior and inferior pubic ramus stress fracture with limitation of extension is denied. 







____________________________________________
GAYLE E. STROMMEN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs