Citation Nr: 21028724 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-34 523 DATE: May 11, 2021 ORDER Entitlement to an increased disability rating of 70 percent, but no higher, for right hip status post total hip replacement is granted, subject to the laws and regulations controlling the award of monetary benefits. Entitlement to service connection for robotic right pyeloplasty with cystoscopy with right ureteral stent placement (urethral stricture) is granted on an aggravation basis. FINDINGS OF FACT 1. The Veteran's right hip status post total hip replacement symptoms more nearly approximated markedly severe residual weakness, pain or limitation of motion, but not painful motion or weakness such as to require the use of crutches. 2. The evidence is at least evenly balanced as to whether the Veteran's urethral stricture is related to in-service aggravation of a preexisting disorder. CONCLUSIONS OF LAW 1. The criteria for an increased 70 percent rating, but no higher, for right hip status post total hip replacement have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1. 4.2, 4.6, 4.7, 4.21, 4.45, 4.59, 4.71a, DC 5054. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for urethral stricture are met. 38 U.S.C. §§ 1110, 1111, 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1979 to April 1997. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which, among other things, denied service connection for robotic right pyeloplasty with cystoscopy with right ureteral stent placement and increased the Veteran's right hip status post total hip replacement rating to 30 percent, effective June 4, 2012. In June 2014 the Veteran filed a notice of disagreement (NOD) and in May 2016 the RO issued a statement of the case (SOC). In July 2016 the Veteran filed a substantive appeal (via VA Form 9). By way of history, the Veteran underwent a total right hip replacement in October 2010 and filed a claim for an increased rating in June 2012. The Veteran's right hip disability was previously characterized as synovitis of the right hip with an evaluation of 10 percent from May 1, 1997 to June 4, 2012. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). 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. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). 1. Right hip status post total hip replacement The Veteran's right hip status post total hip replacement is rated 30 percent from June 4, 2012 under 38 C.F.R. § 4.71a, DC 5054. The Board notes that 38 C.F.R. § 4.71a was amended effective February 7, 2021, which revised DC 5055. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5055). However, none of the changes would have any different effect on the rating adjudication and the Board will proceed with the remainder of its decision. Under DC 5054, a 30 percent rating is warranted as the minimum evaluation, a 50 percent rating is warranted for moderately severe residuals of weakness, pain or limitation of motion, 70 percent rating is warranted for markedly severe residual weakness, pain or limitation of motion, a 90 percent rating is warranted for painful motion or weakness such as to require the use of crutches, and a 100 percent rating is warranted for four months following implantation of prosthesis or resurfacing. 38 C.F.R. § 4.71a, DC 5054. Words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. A July 2012 private treatment note indicates that the Veteran's right hip was treated with injections and therapy. The Veteran was prescribed Aleve and glucosamine and chondroitin sulfate. A March 2013 VA examiner noted that the Veteran does not have any residuals following his surgery. The Veteran did not require any assistive device as a normal mode of locomotion. The VA examiner noted that the Veteran's hip and/or thigh condition did not impact her ability to work. The Veteran reported she experiences flare-ups. Range of motion (ROM) measured flexion to 115 degrees and extension measured greater than 5 degrees with no objective evidence of painful motion. Abduction was not lost beyond 10 degrees nor was it limited such that the Veteran cannot cross her legs. Rotation was not limited such that the Veteran cannot toe-out more than 15 degrees. The same results were measured after performing repetitive-use testing with 3 repetitions. Muscle strength testing measured 5/5 normal strength. A September 2013 private physician noted that the Veteran experienced right hip pain along the greater trochanteric bursa, along the iliotibial band from proximal to distal, and right PSIS. There were no restrictions of hip mobility on internal or external rotation. Normal motor strength to heel and toe walking were noted. A May 2014 private physician noted that the Veteran re-aggravated her right hip after a slipping and falling. The private physician noted no restrictions of hip mobility on internal and external rotations and normal motor strength to heel and toe walking. The private physician advised stretching and heat for relief. An April 2019 private physician noted no pain at the right hip and no restrictions of hip mobility on internal and external rotation. The private physician noted normal motor strength to heel and toe walking. The physician noted negative straight leg raising bilaterally to 90 degrees in seated position. The radiograph examination revealed no osteolysis or loosening and no appreciated fracture. At the February 2021 Board hearing, the Veteran testified that she takes injections in her right hip for pain relief and that this kind of treatment should warrant a higher rating. The Veteran testified that her right hip pain affects most phases of her life such as walking, sitting, driving, and exercising. The Veteran testified that she is accustomed to limiting her movements so that her hip does not hurt. The Veteran stated that she is not prescribed crutches but uses them when going through severe bursitis. The Board finds that the Veteran's symptoms and overall impairment more nearly approximated the criteria for a 70 percent rating under DC 5054. The Veteran testified that her right hip disability affects her in most areas of life and she is competent to report the symptoms associated with her right hip. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Based on the Veteran's testimony, her right hip disability has exhibited residual weakness which affects her in ways that could be described as markedly severe. Therefore, an increased rating of 70 percent, but no higher, is warranted throughout the appeal period. The Board finds that the Veteran's symptoms and overall impairment do not more nearly approximate the criteria for a 90 percent rating. DC 5054 provides that the painful motion or weakness must be of the type or severity such as to require the use of crutches. Although the Veteran stated that she uses crutches during periods of bursitis, she has not been prescribed crutches or any other device for ambulation. The Veteran's private treatment records indicate her hip mobility has been normal throughout the appeal period and the March 2013 VA examination report indicates that her ROM was not limited to a degree that would be considered moderately severe or worse. The Veteran reported that she takes injections for her right disability, however, based on a review of the Veteran's medical records these injections occurred in 2012 and have not occurred since that time. Given the above lay and medical evidence, the Veteran's right hip disability symptomatology and the resulting functional limitations more nearly approximated markedly severe weakness, pain or limitation of motion as contemplated by a 70 percent rating under DC 5054 without requiring the use of crutches for a 90 percent rating. As the preponderance of the evidence is against the assignment of a rating greater than 70 percent for right hip disability status post total hip replacement, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The Board has considered the Veteran's claim and decided entitlement based on the evidence. Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to her claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 2. Urethral stricture Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). An August 2010 private physician diagnosed the Veteran with chronic ureteropelvic junction (UPJ) obstruction which he described as congenital. In October 2010 the Veteran underwent robotic right pyeloplasty with cystoscopy with right ureteral stent placement. Thus, a current disability has been demonstrated. In the Veteran's service treatment records (STRs) there are numerous treatment notes that indicate the Veteran suffered from urinary tract infections (UTIs) and bladder issues while on active duty. Thus, the in-service injury requirement has been met. The Veteran contends that her urethral stricture was not congenital, or in the alternative, if it was congenital, had its onset or was aggravated by service. The Court has held that "to properly analyze a claim for compensation for a congenital condition, the Board must appropriately classify the condition." Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009). This classification is crucial, because a congenital defect is not a disease or injury within the meaning VA's compensation laws and regulations, whereas congenital diseases may be service connected if they are aggravated by service. Id. The evidence below reflects that the Veteran's urethral stricture worsened and therefore it is not a congenital defect, but rather, a congenital disease. A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated. 38 U.S.C. §§ 1111; 38 C.F.R. § 3.304(b). If there is no entrance examination, the presumption of soundness does not attach. Crowe v. Brown, 7 Vet. App. 238, 245 (1994). See also Smith v. Shinseki, 24 Vet. App. 40, 45 (2010) ("Plainly, the statute requires that there be an examination prior to entry into the period of service on which the claim is based"). There was no entrance examination in this case; therefore, the presumption of soundness does not attach. Prior to entering service in September 1979, the Veteran was examined in January and June 1979 when she was a cadet in the Army's Reserve Officer Training Corps (ROTC). There is evidence that the Veteran experienced frequent or painful urination and had a history of UTIs prior to service. Thus, even if the urethral stricture is not congenital, the issue would nevertheless be whether the preexisting urethral stricture was aggravated by service and whether the current disability is related to that aggravation. 38 U.S.C. § 1153 provides that a preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306(b). A September 2011 private treatment record contains a diagnosis of a UPJ obstruction. The private physician noted that if the Veteran had been treated earlier, the long-term renal damage would have been minimized. The private physician's comment indicates that a UPJ obstruction existed prior to this diagnosis. The Board considers the September 2011 private treatment note as an implicit nexus opinion given the implication of the physician's comment and the context in which it was made (i.e. the numerous UTIs and bladder problems the Veteran suffered from in service). See Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). Thus, the September 2011 private treatment note is entitled to probative weight, indicating worsening during service not due to the natural progress of the disease and a current disability related to in-service aggravation of urethral stricture. A March 2013 VA examiner opined that the Veteran's urethral stricture was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner explained that the Veteran stated her cystoscopy procedure was to treat a congenital ureter and there is no medical evidence of this disease in her military medical records. The VA examiner did not consider whether the Veteran's numerous complaints of bladder problems and UTIs in service were early manifestations of her urethral stricture. Therefore, this opinion is afforded no probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Given the positive nexus opinion, the multiple UTIs noted in the Veteran's STRs, and the flawed negative nexus opinion, the evidence is at least evenly balanced as to whether the Veteran's urethral stricture is related to in-service aggravation of the preexisting urethral stricture. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for urethral stricture is warranted on an aggravation basis. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James R. Miller, Associate 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.