Citation Nr: 20003526 Decision Date: 01/16/20 Archive Date: 01/15/20 DOCKET NO. 18-31 464 DATE: January 16, 2020 ORDER 1. Entitlement to a compensable rating for left hip lost extension under Diagnostic Code 5251 is denied 2. Entitlement to a rating in excess of 20 percent for left hip lost flexion under Diagnostic Code 5252 is denied. 3. Entitlement to a rating in excess of 10 percent for left hip lost abduction under Diagnostic Code 5253 is denied. REMANDED Entitlement to a total rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence shows that left hip extension is not at least 5 degrees or less even when considering the Veteran’s complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups at all times during the pendency of the appeal. 2. The preponderance of the evidence shows that left hip flexion is not at least 20 degrees or less even when considering the Veteran’s complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups at all times during the pendency of the appeal. 3. The preponderance of the evidence shows that left hip abduction is not at least 10 degrees or less even when considering the Veteran’s complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups at all times during the pendency of the appeal. 4. The preponderance of the evidence shows that the left hip disorders are not manifested by ankylosis, a flail joint, impairment of the femur with malunion, impairment of the femur with nonunion, a fracture of surgical neck with false joint, and/or a fracture of shaft or anatomical neck with nonunion and loose of motion (spiral or oblique fracture) at all times during the pendency of the appeal. CONCLUSION OF LAW The criteria for higher evaluations for loss of left hip extension, flexion, and abduction have not been met at any time during the pendency of the appeal. 38 U.S.C. §§ 1155, 5100, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326, 3.655, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.27, 4.71a, Diagnostic Codes 5003 and 5250 to 5255. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from May 1990 to April 1996. In November 2018, the Board of Veterans’ Appeals (Board), after restoring the Veteran’s 20 percent rating for left hip lost flexion, remanded the appeal to obtain any outstanding VA and private treatment records as well as to provide the Veteran with a new VA examination in accordance with the United States Court of Appeals for Veterans Claims (Court) holdings in Sharp v. Shulkin, 29 Vet. App. 26 (2017), Correia v. McDonald, 28 Vet. App. 158 (2016), and Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The Board finds that the post-remand development substantially complied with the Remand because the regional office (RO) subsequently obtained and associated with the record all identified and available treatment records and in August 2019 attempted to provide the Veteran with a VA examination. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board’s remand, because such determination more than substantially complied with the Board’s remand order). As to the VA examination, a review of the record on appeal reveals that despite notice of the examination being mailed to the Veteran’s last address of record, the appellant did not show for the examination. Moreover, after the RO later in August 2019 mailed to the Veteran’s last address of record a letter both notifying him of the consequences of failing to show for the VA examination (i.e., his appeal would be adjudicated based on the evidence of record) and asked if he wanted to have an examination, the appellant did not reply to this letter. Therefore, notwithstanding the Veteran’s representative’s Brief in which they assert that the clamant should be given multiple opportunities to not show for a VA examination which could be given to other Veterans who have been waiting years for a VA examination, the Board finds that it need not remand the appeal to try and schedule this Veteran for another VA examination and it may adjudicate the appeal based on the evidence of record. See 38 C.F.R. § 3.655; Wood v. Derwinski, 1 Vet. App. 190. 192 (1991) (holding that “the duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the purtative evidence”); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). We simply can not delay the case further. Lastly, the Board finds that the record raises a claim for a TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Rating Claims The Veteran contends that his hip disabilities are more severely disabling than represented by the ratings assigned at all times during the appeal. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by a Diagnostic Code. 38 C.F.R. § 4.27. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to 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. The assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.” See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2016); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained 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, 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. See 38 C.F.R. §§ 4.40, 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. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Moreover, the United States Court of Appeals for Veterans Claims (Court) in Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016) held that the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to the evaluation of musculoskeletal disabilities under Diagnostic Codes predicated on range of motion measurements. In Burton v. Shinseki, 25 Vet. App. 1 (2011), the Court held that 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. Furthermore, in Jones Shinseki, 26 Vet. App. 56, 61-63 (2012) the Court held that the Board may not deny entitlement to an increased rating on the basis of relief provided by medication when those effects are specifically contemplated by the rating criteria. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Correia and Sharp Concerns Initially, in adjudicating below whether the Veteran meets the criteria for higher evaluations for hip disabilities the Board has not overlooked the Court’s holdings in Correia, supra, and Sharp, supra. However, given the Veteran’s failure to show for his post-remand VA examination, the Board finds that it must adjudicate the claims based on the evidence of record regardless if it is adequate to address the concerns raised by the Court in both these cases. See 38 C.F.R. § 3.655; Wood, supra; Sabonis, supra. The Ratings The Veteran’s left hip lost extension is rated as noncompensable under 38 C.F.R. § 4.71a, Diagnostic Code 5003-5251, left hip lost flexion is rated as 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5003-5252, and left hip lost abduction is rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5003-5253. 38 C.F.R. § 4.71a, Diagnostic Code 5003 provides 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. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joint affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In this regard, the criteria for rating hip disorders provides that ankylosis which is “favorable” (in flexion at an angle between 20 degrees and 40 degrees, and slight adduction or abduction) warrants a 60 percent rating, “intermediate” warrants a 70 percent rating, and “unfavorable” (extremely unfavorable ankylosis, the foot not reaching ground, crutches necessitated) warrants a 90 percent rating under Diagnostic Code 5250; limitation of thigh extension to 5 degrees warrants a 10 percent rating under Diagnostic Code 5251; limitation of thigh flexion to 45 degrees warrants a 10 percent rating, limitation of thigh flexion to 30 degrees warrants a 20 percent rating, and limitation of thigh flexion to 20 degrees warrants a 30 percent rating under Diagnostic Code 5252; lost abduction causing the Veteran to not be able to cross his legs warrants a 10 percent, not being able to toe-out more than 15 degrees warrants a 10 percent rating, and abduction lost beyond 10 degrees warrants a 20 percent rating under Diagnostic Code 5253; a flail joint warrants a 80 percent rating under Diagnostic Code 5254; impairment of the femur with malunion with moderate knee or hip disability warrants a 20 percent rating, impairment of the femur with malunion with marked knee or hip disability warrants a 30 percent rating, with nonunion, without loose motion, and weight bearing preserved with aid of brace warrants a 60 percent rating, with a fracture of surgical neck with false joint warrants a 60 percent rating, and fracture of shaft or anatomical neck with nonunion and loose of motion (spiral or oblique fracture) warrants an 80 percent rating under Diagnostic Code 5255. See 38 C.F.R. § 4.71a. As to a higher rating for any pf the left hip disorders under Diagnostic Code 5250, the Board notes that the claims file does not contain a diagnosis of ankylosis. In fact, the January 2017 VA examiner opined that the left hip was not ankylosed and this medical opinion is not contradicted by any other medical evidence of record. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). In the absence of ankylosis, the Board may not rate any of his service-connected left hip disorders as ankylosis. Johnston v. Brown, 10 Vet. App. 80 (1997). Consequently, the Board finds that a higher evaluation is are not warranted for any of the Veteran’s service-connected left hip disorders under Diagnostic Code 5250 at all times during the pendency of the appeal. Hart, supra; Fenderson, supra As to a compensable rating for loss of left hip extension under Diagnostic Code 5251, the Board finds that even when considering the Veteran’s complaints of pain as per 38 C.F.R. §§ 4.40, 4.45, 4.59 and the Court’s holding in Correia, Sharp, Mitchell, Burton, Southall-Norman, and DeLuca, as well as when considering the appellant’s competent reports of his observable adverse symptomatology (see Davidson, supra), he does not meet the criteria for at least the next higher rating because, at its worst, extension was 15 degrees at the February 2011 VA examination and 20 degrees at the January 2017 VA examination; not the 5 degrees or less required for at least a compensable rating at any time during the pendency of the appeal. 38 C.F.R. § 4.71a; Fenderson, supra; Hart, supra. In reaching the above conclusion, the Board has not overlooked the fact that the Court in Burton, supra, would normally provide for a compensable rating for the Veteran’s lost left hip extension if he also had pain with motion. However, because the Veteran is already receiving compensable ratings for lost hip flexion and abduction, at least in part due to painful motion, the Board finds that awarding him a compensable rating due to painful extension of the same joint would violate the rule against pyramiding. See 38 C.F.R. § 4.14. As to a rating in excess of 20 percent for loss of left hip flexion under Diagnostic Code 5252, the Board finds that even when considering the Veteran’s complaints of pain as per 38 C.F.R. §§ 4.40, 4.45, 4.59 and the Court’s holding in Correia, Sharp, Mitchell, Burton, Southall-Norman, and DeLuca, as well as when considering the appellant’s competent reports of his observable adverse symptomatology (see Davidson, supra), he does not meet the criteria for at least the next higher rating because, at its worst, flexion was 125 degrees at the February 2011 VA examination and 90 degrees at the January 2017 VA examination; not the 20 degrees or less required for at least a 30 percent rating at any time during the pendency of the appeal. 38 C.F.R. § 4.71a; Fenderson, supra; Hart, supra. As to a rating in excess of 10 percent for loss of left hip abduction under Diagnostic Code 5253, the Board finds that even when considering the Veteran’s complaints of pain as per 38 C.F.R. §§ 4.40, 4.45, 4.59 and the Court’s holding in Correia, Sharp, Mitchell, Burton, Southall-Norman, and DeLuca, as well as when considering the appellant’s competent reports of his observable adverse symptomatology (see Davidson, supra), he does not meet the criteria for at least the next higher rating because, at its worst, abduction was 40 degrees at the February 2011 VA examination and 30 degrees at the January 2017 VA examination; not the 10 degrees or less required for at least a 20 percent rating at any time during the pendency of the appeal. 38 C.F.R. § 4.71a; Fenderson, supra; Hart, supra. As to a higher rating for any of the left hip disorders under Diagnostic Codes 5254 and 5255, the Board notes that the claims files does not contain a diagnosis of a flail joint, impairment of the femur with malunion, impairment of the femur with nonunion, a fracture of surgical neck with false joint, and/or a fracture of shaft or anatomical neck with nonunion and loose of motion (spiral or oblique fracture). In fact, the January 2017 VA examiner reported that the Veteran’s left hip disabilities did not include any of these problems and this medical opinion is not contradicted by any other medical evidence of record. See Colvin, supra. Consequently, the Board finds that higher ratings are not warranted for any of the Veteran’s service-connected left hip disorders under Diagnostic Code 5254 and Diagnostic Code 5255 at all times during the pendency of the appeal. Hart, supra; Fenderson, supra. In reaching the above conclusions, the Board has not overlooked the Veteran’s treatment records which frequently document his complaints and treatment for left hip pain and reduced motion. However, as noted above, none of these treatment records show that left hip was ankylosed or had extension of 5 degrees or less, flexion of 20 degrees or less, and/or abduction of 10 degrees or less. See Colvin, supra. The Board also notes that they are negative for the adverse symptomatology required for at least a compensable rating under either Diagnostic Code 5254 or Diagnostic Code 5255. Id. In reaching the above conclusions, the Board has also not overlooked the claims from the Veteran regarding his adverse symptomatology. See Davidson, supra. However, the Board finds the VA examiner’s opinions as to the Veteran’s adverse symptomatology more probative than any lay claims from the appellant to the contrary even though his symptomatology is observable by a lay person because the examiner has medical training. See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). In reaching all the above conclusions, the Board also considered the doctrine of reasonable doubt. 38 U.S.C. § 5107(b). However, as the preponderance of the evidence is against the claims, the Board finds that the doctrine is not for application. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert, supra. REASONS FOR REMAND Entitlement to a TDIU is remanded. As to the claim for a TDIU, as explained above, the Board finds that the record raises a claim for a TDIU. See Rice, supra. Moreover, a review of the record on appeal reveals a September 2016 VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability (TDIU claim form), in which the Veteran reported that he stopped working full-time in January 2011. However, the TDIU claim form also reported that his education included an MBA from Harvard Business School. Moreover, from the existing record the Board cannot ascertain if the Veteran’s continues to be unemployed due solely to his service connected disabilities. The Board can also not ascertain how the Veteran’s service-connected disabilities, which are all musculoskeletal in nature, prevent the claimant from obtaining and maintaining sedentary employment that could make use of his MBA from Harvard. Therefore, a remand to obtain from the Veteran an updated TDIU claim form as well as any outstanding VA and private treatment records to obtain clarification as to these concerns is required before the Board can adjudicate the TDIU claim. See 38 U.S.C.§ 5103A(b); 38 C.F.R. § 19.9. This issue is REMANDED for the following actions: 1. Associate with the record any outstanding VA treatment records. 2. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records. If possible, the Veteran’s representative should submit any new pertinent evidence that the Board does not have. 3. Obtain and associate with the claims file a fully executed VA Form 21-8940. In this regard, the request should include a request for the Veteran to provide a detailed statement as to his employment history since service along with his duties at those places of employment, whether he continues to be unemployed, the approximate date he stopped working full and part time, and how his service-connected disabilities prevent him from obtaining and maintaining substantial gainful employment in both fields that are sedentary and physically demanding. The request should also notify the Veteran that his claim for a TDIU can be denied if he fails to cooperate with the prosecution of the claim by providing at the VA Form 21-8940. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.