Citation Nr: 21005805 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 11-16 613 DATE: February 2, 2021 ORDER Entitlement to an evaluation in excess of 20 percent for residuals of fracture of cervical spine C2-C3 from December 18, 2008 to April 8, 2015 is denied. Entitlement to a 30 percent evaluation for residuals of fracture of cervical spine C2-C3 from April 9, 2015 is granted. Entitlement to an evaluation in excess of 50 percent for residuals of fracture of left pelvis and left hip osteoarthritis, status post total arthroplasty, is denied. FINDINGS OF FACT 1. From December 18, 2008 to April 8, 2015, the Veteran’s cervical spine disability has been manifested by flexion at no less than 30 degrees with pain. 2. From April 9, 2015, and resolving all reasonable doubt in favor of the Veteran, his cervical spine disability more closely approximates flexion at no less than 15 degrees based on functional loss due to flare-ups. 3. Throughout the appeal period, the Veteran’s left hip disability has been manifested by moderately severe residuals of weakness, pain or limitation of motion. CONCLUSIONS OF LAW 1. The criteria for entitlement to an evaluation in excess of 20 percent for residuals of fracture of cervical spine C2-C3 from December 18, 2008 to April 8, 2015 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5235. 2. The criteria for entitlement to a 30 percent evaluation for residuals of fracture of cervical spine C2-C3 from April 9, 2015 have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5235. 3. The criteria for entitlement to an evaluation in excess of 50 percent for residuals of fracture of left pelvis and left hip osteoarthritis, status post total arthroplasty, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5054. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from November 1959 to September 1982. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In the February 2010 rating decision, the RO, in pertinent part, denied a higher than 20 percent evaluation for residuals of fracture of cervical spine C2-C3; and denied a compensable evaluation for residuals of fracture of left pelvis. The Veteran appealed for higher evaluations. This case has an extensive procedural history. In the most recent May 2019 remand, the Board remanded the issues on appeal for additional development. As the actions specified in the remand have been substantially completed, the matters have been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). During the pendency of the appeal, in a February 2017 rating decision, the RO granted service connection for left hip osteoarthritis, status post total arthroplasty, and assigned a 50 percent evaluation, effective December 18, 2008. In a July 2020 rating decision, the RO, in pertinent part, found that clear and unmistakable error was committed in the February 2017 rating decision and therefore, an earlier effective date as of August 16, 2007 was granted. Additionally, the RO found that the Veteran’s service-connected residuals of fracture of left pelvis and left hip osteoarthritis, status post total arthroplasty, were inextricably intertwined based on their overlapping symptomatology identified by the findings of a February 2018 VA addendum. Therefore, the RO combined both disabilities and assigned a 50 percent evaluation, effective February 11, 2009. The Veteran continued to appeal for a higher evaluation for his left hip disability. AB v. Brown, 6 Vet. App. 35 (1993) (holding that a claimant is presumed to be seeking the maximum rating). Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. 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.A. § 1155; 38 C.F.R. § 4.1. 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. The veteran's entire history is to be considered when making disability evaluations. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). It should also be noted that, when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. 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, 8 Vet. App. at 205. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. 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 weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. The intent of the rating schedule is to recognize painful motion with joint or periarticular 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. 38 C.F.R. § 4.59. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 09-1998. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). However, pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability. 38 C.F.R. § 4.14. 1. Entitlement to an evaluation in excess of 20 percent for residuals of fracture of cervical spine from December 18, 2008 to April 8, 2015 2. ; Entitlement to a 30 percent evaluation for residuals of fracture of cervical spine from April 9, 2015 The Veteran asserts that his service-connected cervical spine disability is worse than his current evaluation reflects. In particular, he described having muscle spasms, localized tenderness, and an increased severity in range of motion since December 2015. During the relevant appeal period, the Veteran’s service-connected cervical spine disability has been currently evaluated as 20 percent disabling, effective March 29, 2002, under 38 C.F.R. § 4.71a, Diagnostic Code 5235. Diagnostic Code 5235 is evaluated under the General Rating Formula for Diseases and Injuries of the Spine, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply: A 10 percent evaluation is warranted where forward flexion of the cervical spine is greater than 30 degrees but not greater than 40 degrees; or, the combined range of motion of the cervical spine is greater than 170 degrees but not greater than 335 degrees; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted where forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine is not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent evaluation is warranted for forward flexion of the cervical spine of 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent evaluation is provided for unfavorable ankylosis of the entire cervical spine. For VA compensation purposes, normal forward flexion of the cervical spine is 0 to 45 degrees, extension is 0 to 45 degrees, left and right lateral flexion are 0 to 45 degrees, and left and right lateral rotation are 0 to 80 degrees. 38 C.F.R. § 4.71a, Plate V. Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. See General Rating Formula for Diseases and Injuries of the Spine, Note 1. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision, restricted opening of the mouth and chewing, breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia, atlantoaxial or cervical subluxation or dislocation; or neurological symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. See General Rating Formula for Diseases and Injuries of the Spine, Note 5. Under the applicable criteria, intervertebral disc syndrome (preoperatively or postoperatively) is to be evaluated either under the general rating for disease and injuries of the spine or under the formula for rating intervertebral disc syndrome based on incapacitating episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, a 10 percent evaluation is assigned with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent evaluation is assigned with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent evaluation is assigned with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a maximum 60 percent evaluation is assigned with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 1. Based on a careful review of all the subjective and clinical evidence, the Board finds that from December 18, 2008 to April 8, 2015, the evidence does not demonstrate that Veteran’s service-connected cervical spine disability does not warrant a higher 30 percent evaluation under the General Rating Formula for Diseases and Injuries of the Spine. In other words, at no time during the appeal period does the evidence demonstrate that the Veteran’s cervical spine disability manifest flexion at 15 degrees or less; or, favorable ankylosis of the entire cervical spine. In an August 2009 letter, the Veteran’s private physician, Dr. E.G, found that the Veteran had extensive degenerative changes in his cervical spine. These degenerative changes would leave him with a propensity to re-injure his spine over time and would likely incapacitate him periodically. At a September 2009 VA examination, the Veteran reported having moderate, constant, and daily achy pain at the base of his neck with tightness and stiffness. He did not report having flare-ups, but he noted that he had severe pain every day when he was mobile. Range of motion testing of the Veteran’s cervical spine revealed flexion at 30 degrees with pain. There was no additional limitation in range of motion upon repetitive use testing. No ankylosis was found. Accordingly, the Board finds that there is no basis upon which to award a higher 30 percent evaluation under the General Rating Formula for Diseases and Injuries of the Spine. Therefore, from December 18, 2008 to April 8, 2015, the Veteran’s service-connected cervical spine disability is no more than 20 percent disabling. However, resolving all reasonable doubt in favor of the Veteran, from April 9, 2015, the Board finds that his service-connected cervical spine disability warrants a higher 30 percent evaluation based on functional loss due flare-ups. Viewing the evidence during this appeal period in the light most favorable to the Veteran on the basis of the Deluca factors for functional loss, his cervical spine disability exhibits symptoms equivalent to a 30 percent evaluation under the General Rating Formula for Diseases and Injuries of the Spine. Deluca, 8 Vet. App. at 205. At his April 2015 VA examination, the Veteran’s cervical spine manifested flexion at 20 degrees with pain. The Veteran reported that he experienced severe flare-ups, which occurred three times a week and lasted one to two hours. He also reportedly had functional loss exhibited by a decreased ability to bend or twist his neck and a decreased ability to drive for prolonged periods. At his August 2017 VA examination, the Veteran’s cervical spine manifested flexion at 20 degrees with pain. The Veteran reported having flare-ups characterized by constant pain, stiffness, and a decreased range of motion. He reportedly had functional loss exhibited by an inability to lift heavy objects or sit for extended periods. Finally, at his November 2019 VA examination, the Veteran’s cervical spine manifested flexion at 20 degrees with pain. The Veteran reported having moderate to severe flare-ups, which occurred periodically and lasted for one to two hours. He reportedly experienced functional loss, which affected his ability to perform house and yard work and made it difficult to turn his head when driving. The November 2019 VA examiner found that pain significantly limited functional ability with flare-ups and repeated use over a period of time. Based upon the above findings, the Board finds that the evidence more closely approximates a 30 percent evaluation, but no higher, under the General Rating Formula for Diseases and Injuries of the Spine, as the evidence does not show unfavorable ankylosis of the entire cervical spine for a 40 percent evaluation. Given that the April 2015 VA examiner found that the Veteran had IVDS, the Board has also considered whether he warrants a higher evaluation under Diagnostic Code 5243. However, the Board finds that a higher 40 percent evaluation under Diagnostic Code 5243 is not warranted. In other words, the Veteran’s cervical spine disability did not manifest incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Indeed, the April 2015 VA examiner found that the Veteran had no incapacitating episodes that required bedrest prescribed by a physician and treatment by a physician due to his IVDS. Therefore, the Veteran does not qualify for a higher 40 percent evaluation under Diagnostic Code 5243 during the relevant appeal period. Accordingly, from April 9, 2015, the Veteran’s service-connected cervical spine disability is no more than 30 percent disabling. In summary, the preponderance of the evidence weighs against finding in favor of the Veteran’s higher than 20 percent evaluation claim for residuals of fracture of cervical spine C2-C3 from December 18, 2008 to April 8, 2015. Therefore, the benefit-of-the-doubt rule does not apply, and the higher evaluation claim from December 18, 2008 to April 8, 2015 must be denied. However, resolving all reasonable doubt in favor of the Veteran, from April 9, 2015, a higher 30 percent evaluation, but no higher, for residuals of fracture of cervical spine C2-C3 is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to an evaluation in excess of 50 percent for residuals of fracture of left pelvis and left hip osteoarthritis, status post total arthroplasty The Veteran asserts that his service-connected left hip disability is worse than his current evaluation reflects. In particular, the Veteran reported experiencing left hip pain and discomfort and that his left hip disability interfered with his daily activities. The Veteran’s service-connected left hip disability has been currently evaluated as 50 percent disabling, effective February 11, 2009, under 38 C.F.R. § 4.71a, Diagnostic Code 5054 for hip replacement (prosthesis). Under Diagnostic Code 5054, a 100 percent rating is assigned for one year following implantation of prosthesis. Following implantation of prosthesis, a 90 percent rating is warranted where there is painful motion or weakness such as to require the use of crutches. A 70 percent rating is warranted where there is markedly severe residual weakness, pain or limitation of motion following implantation of prosthesis. A 50 percent rating is warranted where there is moderately severe residuals of weakness, pain or limitation of motion. The diagnostic code provides a minimum rating of 30 percent. Normal extension of the hip is to 0 degrees and normal flexion is to 125 degrees. Normal abduction of the hip is to 45 degrees. 38 C.F.R. § 4.71, Plate II. The terms moderately severe and markedly severe as used under Diagnostic Code 5054 are not defined in the Rating Schedule. Rather than applying a mechanical formula to determine when symptomatology is moderately severe or markedly severe, the Board must evaluate all of the evidence to ensure an equitable and just decision. 38 C.F.R. § 4.6. Based on a careful review of all the subjective and clinical evidence, the Board finds that throughout the appeal period, the Veteran’s service-connected left hip disability does not warrant a higher 70 percent evaluation under Diagnostic Code 5054. In other words, the Veteran’s left hip disability does not manifest markedly severe residual weakness, pain or limitation of motion following implantation of prosthesis. At a September 2009 VA examination, the Veteran reported symptoms of left hip pain and stiffness. He experienced intermittent, moderate, and sharp pain while standing or walking. No flare-ups were reported, but he noted that he had severe pain every day when he was mobile. He was able to complete activities of daily living independently, but he used a device to put on his socks and shoes. Upon objective evaluation, the VA examiner observed that the Veteran had a stiff-legged gait, but there was no evidence of weight bearing. Range of motion testing of the Veteran’s left hip revealed abduction at 45 degrees without pain, adduction at 25 degrees without pain, flexion at 90 degrees without pain, extension at 25 degrees with pain, external rotation at 60 degrees without pain, and internal rotation at 40 degrees without pain. There was no additional loss in range of motion due to pain, weakness, or lack of endurance. At an April 2015 VA examination, the Veteran reported having constant, moderate to severe left hip pain and experiencing a decreased ability to stand or walk for prolonged periods. He did not report having flare-ups. Range of motion testing of the Veteran’s left hip revealed flexion at 90 degrees with pain, extension at 10 degrees with pain, abduction at 30 degrees with pain, adduction at 20 degrees with pain, external rotation at 30 degrees with pain, and internal rotation at 20 degrees with pain. Adduction was limited such that the Veteran could not cross legs. There was no additional loss of function or range of motion after repetitive use testing. No ankylosis was found. The VA examiner noted that the Veteran had a total left hip joint replacement in 2006 with moderately severe residuals of weakness, pain or limitation of motion. No assistive device was used for his left hip. At an August 2017 VA examination, the Veteran reported having flare-ups characterized by sharp pain and a decreased range of motion. He also reportedly had functional loss exhibited by an inability to do extended standing, walking, or sitting. Range of motion testing of the left hip revealed flexion at 90 degrees with pain, extension at 15 degrees with pain, abduction at 30 degrees with pain, adduction at 20 degrees with pain, external rotation at 45 degrees with pain, and internal rotation at 30 degrees with pain. Upon repetitive use testing, there was no additional limitation in range of motion or functional loss. No ankylosis was found. The VA examiner found that the Veteran’s residuals of his total left hip joint replacement were characterized as moderately severe residuals of weakness, pain or limitation of motion. No complications associated with the total hip replacement were found. The Veteran used a cane occasionally for assistance. At a November 2019 VA examination, the Veteran reported having moderate flare-ups that occurred when he stood up or used his hip too much, and which lasted for hours. Range of motion testing of the Veteran’s left hip revealed flexion at 90 degrees with pain, extension at 30 degrees with pain, abduction at 45 degrees with pain, adduction at 15 degrees with pain, external rotation at 30 degrees with pain, and internal rotation at 30 degrees with pain. Adduction was not limited such that the Veteran could not cross his legs. The VA examiner found that pain significantly limited functional ability with repeated use over a period of time and with flare-ups and resulted in a five-degree loss throughout his ranges of motion. No ankylosis was found. The VA examiner found that the Veteran’s residuals of his total left hip joint replacement were characterized as moderately severe residuals of weakness, pain or limitation of motion. No assistive devices were used. Based on the above findings, the Board finds that throughout the appeal period, there is no basis upon which to award a higher 70 percent evaluation for the Veteran’s service-connected left hip disability under Diagnostic Code 5054. On that basis, the Board finds it significant that the April 2015, August 2017 and November 2019 VA examiners consistently found that the Veteran’s left hip disability residuals were characterized as moderately severe residuals of weakness, pain or limitation of motion. Nevertheless, the Board considered whether any other evidence of record warranted a different conclusion. Here, the Veteran’s left hip disability did not manifest markedly severe symptoms of weakness, pain or limitation of motion. On that basis, the Veteran did not indicate a significant functional impairment in his daily activities. He only occasionally used an assistive device. Moreover, at his November 2019 VA examination, the VA examiner only found a five-degree loss in range of motion with repeated use over time and with flare-ups. Overall, the Board finds that the Veteran’s left hip disability more closely approximates moderately severe residuals of weakness, pain or limitation of motion. Accordingly, the Board finds that throughout the appeal period, the Veteran’s left hip disability is no more than 50 percent disabling. (Continued on the next page)   The Board has also considered whether the Veteran warrants a separate evaluation for his left hip disability. In this case, the evidence shows that the April 2015 VA examiner found that the Veteran’s adduction was limited such that he could not cross his legs. Under Diagnostic Code 5253, a 10 percent rating is warranted for limitation of adduction, where adduction is limited such that legs cannot be crossed. This diagnostic code is based on pain and limited motion. Pain and limited motion are expressly contemplated under Diagnostic Code 5054. The Veteran's pain and limited motion of the left hip are therefore expressly contemplated in his 50 percent evaluation under Diagnostic Codes 5054. As such, awarding a separate evaluation under Diagnostic Code 5253 would constitute impermissible pyramiding because such action would result in the Veteran receiving two ratings based on the same manifestations of disability. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1994). Accordingly, the Board finds that the Veteran is not entitled to a separate evaluation for his left hip disability under Diagnostic Code 5253. In summary, the preponderance of the evidence weighs against finding in favor of the Veteran’s higher than 50 percent evaluation claim for residuals of fracture of left pelvis and left hip osteoarthritis, status post total arthroplasty. Therefore, the benefit-of-the-doubt rule does not apply, and the higher evaluation claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Journet Shaw, 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.