Citation Nr: 1819303 Decision Date: 03/29/18 Archive Date: 04/05/18 DOCKET NO. 12-30 405 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to a rating in excess of 30 percent for service-connected dislocation and chip fracture of the left hip with arthritis (left hip disability). 2. Entitlement to special monthly compensation based on the loss of use of a creative organ. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Connor, Counsel INTRODUCTION The Veteran served on active duty from February 1966 to April 1970, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in September 2011 and April 2014 of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. Although the Veteran requested a hearing on his October 2012 and August 2014 VA Form 9 substantive appeals, he later withdrew the hearing requests in a March 2017 statement. This case was previously before the Board in June 2017 when it was remanded for additional development. It has returned for adjudication. In response to the June 2017 remand directives regarding claims for entitlement to service connection for bilateral lower extremity radiculopathy, the RO ultimately awarded service connection for right upper extremity peripheral neuropathy, right lower extremity peripheral neuropathy, and left lower extremity peripheral neuropathy. Thereafter, in a November 2017 supplemental statement of the case, the RO erroneously addressed entitlement to service connection for left upper extremity peripheral neuropathy and certified the issue to the Board. As the Veteran has not filed a claim for this issue and it has not been fully developed by the RO, the Board will not take jurisdiction over it. If the Veteran wishes to pursue entitlement to service connection for left upper extremity peripheral neuropathy, he is encouraged to file a claim asserting such. The issue of entitlement to a clothing allowance has been raised by the record in statements dated in July 2010 and May 2014, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). FINDINGS OF FACT 1. During the entire period on appeal the Veteran's service-connected left hip disability was manifested by pain, flare-ups, and flexion to 5 degrees when considering pain on motion. 2. During the entire period on appeal, the Veteran's service-connected left hip disability is manifested by limitation of extension to 5 degrees with pain on motion. 3. During the entire period on appeal, the Veteran's service-connected left hip disability is manifested by limitation of abduction such that motion is lost beyond 10 degrees. 4. The weight of the evidence does not show loss of use of a creative organ due to a service-connected disability. CONCLUSIONS OF LAW 1. For the entire period on appeal, the criteria for a 40 percent rating, but no higher, for a service-connected left hip disability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5252 (2017). 2. For the entire period on appeal, the criteria for a separate 10 percent rating for a left hip disability based on limitation of extension have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5251 (2017). 3. For the entire period on appeal, the criteria for a separate 20 percent rating for a left hip disability based on limitation of abduction have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5253 (2017). 4. The criteria for special monthly compensation based on the loss of use of a creative organ have not been met. 38 U.S.C. § 1114(k) (2012); 38 C.F.R. § 3.350(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and to Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The duty to notify has been met. See VA correspondence dated March 2011, March 2014. The Veteran has not alleged prejudice with regard to notice. The Federal 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." See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In light of the foregoing, nothing more is required. Regarding the duty to assist, all identified and authorized records relevant to the matter have been requested or obtained. The record includes available service treatment records and VA treatment and examination reports. The Board concludes the examinations in this case are adequate upon which to base a decision as they are predicated on a full review of the claims file, a history as provided by the Veteran, and an examination. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran has not identified any additional records that should be obtained prior to appellate consideration. The evidence of record is sufficient for the Board's review. The Board finds there is no evidence of any additional existing pertinent records. Further attempts to obtain additional evidence would be futile. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. See U.S.C. § 5103A (2012); 38 C.F.R. §3.159 (2017). As noted above, this case was remanded by the Board in June 2017 for additional development. The RO was directed to schedule the Veteran for a VA examination to assess the severity of his left hip disability. The examination was completed in September 2017. Accordingly, the Board finds that there has been substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). II. Increased Ratings The Veteran claims that a rating in excess of 30 percent is warranted for his service-connected left hip disability. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, 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 (2017). The Veteran's entire history is reviewed when making a disability determination. 38 C.F.R. § 4.1 (2017). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one disorder is not duplicative of the symptomatology of the other disorder. 38 C.F.R. § 4.14 (2017); Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The provisions regarding the avoidance of pyramiding also do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. 38 C.F.R. § 4.14 (2017). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of Sections 4.40 and 4.45 pertaining to functional impairment. 38 C.F.R. §§ 4.40, 4.45 (2017). The United States Court of Appeals for Veterans Claims (Court) has 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, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011); DeLuca v. Brown, 8 Vet. App. 202, 208 (1995); 38 C.F.R. § 4.59 (2017). The Veteran is currently awarded service connection for dislocation and chip fracture of the left hip with arthritis (left hip disability) and assigned a 30 percent disability rating under 38 C.F.R. § 4.71a, Diagnostic Code 5255-5252. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. Limitations of motion of the hip are rated under Diagnostic Codes 5251, 5252, and 5253. Normal ranges of motion of the hip are hip flexion from 0 degrees to 125 degrees, and hip abduction from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II (2017). A 10 percent rating is warranted where extension of the thigh is limited to 5 degrees under Diagnostic Code 5251, or where flexion is limited to 45 degrees under Diagnostic Code 5252. 38 C.F.R. § 4.71a (2017). A 20 percent rating is assigned where flexion is limited to 30 degrees; a 30 percent rating is assigned where flexion is limited to 20 degrees; and a 40 percent rating is assigned where flexion is limited to 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5252 (2017). A 10 percent rating is also warranted for limitation of rotation of the thigh if the affected leg cannot toe-out more than 15 degrees; or where adduction is limited such that legs cannot be crossed; and a 20 percent rating is assigned for limitation of abduction of the thigh with motion lost beyond 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5253 (2017). During a March 2014 VA examination, the examiner noted the Veteran's diagnoses of arthralgia and osteoarthritis in the left hip following a left hip fracture with dislocation in 1968. The Veteran reported increased pain in the left hip that occurs with and without movement. The Veteran also noted flare-ups of hip pain with prolonged rest and driving. Range of motion testing revealed flexion to 45 degrees with the onset of pain at 5 degrees. Extension was to 5 degrees with pain beginning at 5 degrees. The examiner indicated that abduction was lost beyond 10 degrees but that adduction was not limited such that the Veteran was unable to cross his legs. Additionally, the Veteran's left hip rotation was not limited such that he was unable to toe-out more than 15 degrees. On repetition, the Veteran's left hip flexion was to 40 degrees and extension was to 5 degrees or greater. Abduction was lost beyond 10 degrees but adduction was still not limited such that the Veteran was unable to cross his legs. Additionally, the Veteran's left hip rotation was not limited such that he was unable to toe-out more than 15 degrees. The examiner indicated that on repetition, the Veteran's left hip disability resulted in functional loss, including less movement than normal, weakened movement, incoordination, pain on movement, atrophy of disuse, and interference with sitting, standing, and weight-bearing. There was evidence of localized tenderness or pain to palpation of the left hip. Muscle testing revealed decreased muscle strength in the left hip. There was no evidence of ankylosis of the hip joint, malunion or nonunion of the femur, flail hip joint, or leg discrepancy. The Veteran had not undergone surgery on his left hip. He used a cane for ambulation. Imagining studies found arthritis in the Veteran's left hip. A treatment note in April 2014 indicates that the Veteran was seen to obtain a walker. He stated that he had pain in his hips and used a cane for ambulation, but did not have it at the appointment. Although he has stairs in his home, he did not use them. He was observed ambulating without an assistive device but with an antalgic gait and at a slow pace. During a September 2017 VA examination, the Veteran noted swelling, pain, and weakness in the left hip. He also indicated that he was unable to put much weight on the left hip. The examiner indicated that she was unable to test range of motion for either hip because the Veteran "grimaced, jumped, and moaned with all movements of the hip, not allowing the examiner to fully evaluate the hip." There was also pain to palpation of the left hip. The examiner noted a reduction in muscle strength but indicated it was not entirely due to the Veteran's left hip dislocation and chip fracture with arthritis. There was no evidence of muscle atrophy or ankylosis of the hip joint. Additionally, there was no indication of malunion or nonunion of the femur, flail hip joint, or leg length discrepancy. The Veteran used a cane for shorter distances and walker for longer distances for assistance with ambulation. The examiner noted that although range of motion testing was "very limited", the Veteran was observed ambulating with use of a wheeled walker and removed his own shoes during the examination. Accordingly, the examiner did not find ankylosis was present. Based on the above, the Board finds that for the entire period on appeal, when considering limitation due to pain, the Veteran's service-connected left hip disability warrants a 40 percent disability rating for limitation of flexion of the thigh. As noted by the March 2014 VA examiner, although the Veteran's left hip flexion was to 45 degrees, there was objective evidence of painful motion at 5 degrees and less movement than normal on repetition. Under the guidance of the Court in Mitchell and DeLuca, the Board finds this measurement, in addition to the Veteran's "very limited" range of motion due to pain during the September 2017 VA examination, is sufficient for an increased, 40 percent disability rating. Additionally, during the March 2014 VA examination, the examiner noted that extension ended at 5 degrees with objective evidence of painful motion at that point. Despite the notation that on repetition the Veteran was able to extend beyond 5 degrees, the Board finds that the original measurements in addition to the findings during the September 2017 VA examination weigh in favor of a separate 10 percent disability rating for limitation of extension of the left hip under Diagnostic Code 5251. Further, the March 2014 examiner noted that abduction was lost beyond 10 degrees, sufficient for a separate 20 percent disability rating under Diagnostic Code 5253. As for other diagnostic codes, the evidence does not show ankylosis of the left hip to warrant a higher rating under Diagnostic Code 5250 or a flail left hip joint to warrant a rating under Diagnostic Code 5254. Similarly, the medical evidence of record does not demonstrate that there has been an impairment of the femur with nonunion or a fracture of the femur to warrant an increased rating under Diagnostic Code 5255. In summary, the Board finds that, for the entire period on appeal, the criteria for a 40 percent disability rating for limitation of flexion of the left hip have been met. Additionally, the criteria for a separate 10 percent disability rating for limitation of extension and a separate 20 percent disability rating for limitation of abduction of the left hip have also been met. However, the preponderance of the evidence is against the assignment of any rating greater than those described above, at any point during the period on appeal. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Special Monthly Compensation The Veteran generally contends that he is entitled to special monthly compensation for loss of use of a creative organ based on erectile dysfunction he attributes to his service-connected diabetes mellitus. Special monthly compensation under 38 U.S.C. 1114(k) is payable for each anatomical loss or loss of use of one or more creative organs if such loss is a result of a service-connected disability. In a final June 2017 decision, the Board denied entitlement to service connection for erectile dysfunction. Because erectile dysfunction is a nonservice-connected disorder, entitlement to special monthly compensation for loss of use of a creative organ must be denied as a matter of law. See Sabonis v. Brown, 6 Vet.App. at 430. ORDER A 40 percent rating, but no higher, for a left hip disability with limitation of flexion is granted, subject to the regulations governing the payment of monetary awards. A separate 10 percent rating, but no higher, based on limitation of extension of the left hip is granted, subject to the regulations governing the payment of monetary awards. A separate 20 percent rating, but no higher, based on limitation of abduction of the left hip is granted, subject to the regulations governing the payment of monetary awards. Special monthly compensation for the loss of use of a creative organ is denied. ____________________________________________ J. Schulman Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs