Citation Nr: 22016119
Decision Date: 03/21/22	Archive Date: 03/21/22

DOCKET NO. 17-53 241
DATE: March 21, 2022

ORDER

Entitlement to a disability rating in excess of 50 percent, from February 1, 2019, for post left hip arthroplasty is denied.  

FINDING OF FACT

From February 1, 2019, the Veteran's service-connected post left hip arthroplasty manifested by moderately severe residuals of weakness, pain, and limitation of motion. 

CONCLUSION OF LAW

The criteria for entitlement to a disability rating in excess of 50 percent, from February 1, 2019, for post left hip arthroplasty have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5054.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served in the United States Navy from July 1991 to September 2015. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision issued by a VA Regional Office (RO).

By way of background, this claim stems from an initial compensation claim for service connection for a left hip disability, as well as various other claims. The RO granted service connection in a February 2016 rating decision from which the Veteran timely appealed. 

The matter then came before the Board in November 2019. At which time, the Board denied the Veteran's claim for an increased rating in excess of 10 percent for his left hip disability prior to December 6, 2017. The Board remanded the Veteran's remaining claims for an increased rating after December 6, 2017, reflecting evidence he underwent a left hip arthroplasty at that time, as well as for service connection for insomnia for additional development. 

Specifically, the Board requested the RO to obtain any outstanding private treatment records for the Veteran's left hip disability to include any outstanding records from Dr. W.B. Afterwards, the RO was to consider the Veteran's left hip surgery from December 2017 along with any other private records obtained upon remand and assign disability ratings in the first instance. 

Subsequent to the Board's remand, in an August 2020 rating decision, the RO granted service connection for insomnia.  This being a complete grant of the benefits sought, these claims are no longer before the Board. Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). 

The RO also assigned a temporary total evaluation of 100 percent for prosthesis implantation for thirteen months status post left hip arthroplasty effective December 6, 2017, to January 31, 2019, along with Special Monthly Compensation for housebound status during the same time period. Afterwards, the RO assigned a 50 percent rating effective February 1, 2019. This increased rating constitutes a partial grant of the benefits sought on appeal; therefore, the issues remain on appeal for consideration by the Board. See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded).

A review of the claims file now shows that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998).

Preliminary Matters

The Board notes, VA has a duty to assist the Veteran in obtaining information, and the Veteran has a duty on his part to cooperate with VA in developing a claim. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting that "[t]he duty to assist is not always a one-way street"). VA's duty must be understood as a duty to assist the Veteran in developing his claim, rather than a duty on the part of VA to develop the entire claim with the Veteran performing a passive role. Turk v. Peake, 21 Vet. App. 565, 568 (2008). In this instance, the Veteran must aid in the development of his claim by attending the information and or waiver as requested. If the Veteran fails to do so, his claim will be decided based on the evidence of record. See 38 C.F.R. § 3.655. 

Here, the RO properly considered and assigned disability ratings for the Veteran's left hip surgery and attempted to obtain outstanding private treatment records. Unfortunately, neither the Veteran nor his representative ever responded to the VA's request in November 2019, to provide a waiver and release in order to obtain said records. Furthermore, the claims file contains no evidence of returned mail or a change of address. In addition, in August 2020, the VA contacted the Veteran over the phone, and he waived any additional time to provide additional evidence noting he had no additional evidence to submit and wishing his claim to proceed directly to the Board.  Therefore, the Board finds the VA's duty to assist has been substantially met and the Veteran's appeal will be decided on the evidence of record. See 38 C.F.R. § 3.655. 

As previously highlighted in the Board's November 2019 Decision, it bears worth repeating that the issue of a total disability based on individual unemployability (TDIU) is not part and parcel of the increased rating claim on appeal here.  Although the Court held in Rice v. Shinseki, 22 Vet. App. 447 (2009) that a TDIU claim can be part and parcel of an increased rating appeal when such claim is raised by the record, the Board finds those circumstances do not apply here.  As already outlined in the November 2019 Board decision, athough the Veteran indicated that he lost more than five weeks of work during his VA examination in March 2018, and that his hip disabilities affect his ability to stand for long periods of time, the evidence does not show that the Veteran is alleging that he is precluded from gainful employment.  In fact, during the March 2018 examination it was noted that the Veteran was employed at Boeing. As such, the Board finds that further consideration of a TDIU is not warranted.  

The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008).

Entitlement to a disability rating in excess of 50 percent, from February 1, 2019, for post left hip arthroplasty, is denied. 

The Veteran generally contends that the severity of his post left hip arthroplasty residuals entitles him to an increased disability rating. The Board finds a rating in excess of 50 percent status post left hip arthroplasty is not warranted. 

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which assigns ratings based on average impairment of earning resulting for a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civilian occupations, resulting from such diseases and injuries and their residual conditions. 38 C.F.R. § 4.1.

Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Notably, "staged" ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). Where there is a question as to which of two ratings shall be applied, the higher rating 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 evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994).

A Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on observable symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (finding that a Veteran is competent to report on that of which he has personal knowledge).

The evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995).

The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. 38 C.F.R. § 4.45.

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.").

The Veteran is currently in receipt of a 50 percent disability rating under DC 5054 which provides rating criteria following a hip replacement. The hip is rated at 100 percent for one year following implantation of a prosthesis. A Note to DC 5054 indicates that the 100 percent rating will commence following a 1-month period of convalescence, where the hip is rated 100 percent under 38 C.F.R. § 4.30. Thus, a 100 percent rating is automatically assigned for a maximum 13-month period after a hip replacement. 38 C.F.R. § 4.71a, DC 5054, Note 1.

After the 13-month period at 100 percent ends, a minimum of 30 percent is assigned. If there are moderately severe residuals of weakness, pain, or limitation of motion, then a 50 percent rating is warranted. If there is markedly severe residual weakness, pain, or limitation of motion, then a 70 percent rating is warranted. If there is painful motion or weakness such as to require the use of crutches, then a 90 percent rating is warranted. 38 C.F.R. § 4.71a, DC 5054. A 90 percent rating is the highest rating permitted for the hip, aside from the periods where a 100 percent rating is expressly permitted. See 38 C.F.R. §§ 3.343(a), 4.68, 4.71a, DC 5054.

Words such as "severe," "moderately," and "markedly" 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. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. 38 C.F.R. § 3.100(a) (delegating the Secretary's authority "to make findings and decisions... as to the entitlement of claimants to benefits" to, inter alia, VA "adjudicative personnel"); 38 C.F.R. § 4.2 ("It is the responsibility of the rating specialist to interpret reports of examination... so that the current rating may accurately reflect the elements of disability present."). Instead, all evidence must be evaluated in arriving at a decision regarding a request for a higher disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. Additionally, the use of the phrase "such as" in diagnostic codes reflects that the terms following the phrase are examples and not an exclusive list. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).

"Marked" has a dictionary definition of "having a distinctive or emphasized character." Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/marked (last visited February 1, 2021). "Moderate" has a dictionary definition of "limited in scope or effect." Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/moderate (last visited February 1, 2021). "Severe" has a dictionary definition of "very painful or harmful." Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/severe (last visited February 1, 2021).

Normal ranges of motion of the hip include hip flexion from 0 to 125 degrees and abduction from 0 to 45 degrees. 38 C.F.R. § 4.71, Plate II.

Turning to the relevant evidence of record, in December 2017, the Veteran underwent total left hip joint replacement.  See December 6, 2017 Private Treatment Record from Dr. W.B. 

The Veteran was afforded a VA examination in March 2018 to determine the severity of his left hip disability.  The Veteran reported current symptoms of dull/achy pain in his hips which sometimes wakes him up at night. The Veteran also reported experiencing flare ups that require him to "take a break when there is pain". Functionally, the Veteran reported having limited range of motion (ROM) and not being able to stand for long periods of time. 

Upon examination, initial ROM testing revealed flexion limited to 115 degrees, extension to 25 degrees, abduction to 40 degrees, adduction to 20 degrees, external rotation to 55 degrees, and internal rotation to 35 degrees.  Adduction was noted as causing the Veteran to not be able to cross his legs and pain was indicated upon all ranges of motion tested. However, reduced ROM and pain were noted as not contributing, resulting in, or causing functional loss.  

There was objective evidence of pain with weight bearing and non-weight bearing, as well as on passive ROM testing. Crepitus was also indicated however there was no evidence of localized tenderness or pain upon palpation. No additional loss with repetitive use was noted. In regard to repetitive use over time and with flare ups, the examiner noted the examination was neither medically consistent or inconsistent with the Veteran's statements and evidence of record. However, the examiner was not able to provide an estimate in terms of ROM reflecting the Veteran's left hip disability's impact. The examiner explained, that to do sue would be based on mere speculation as "there is no conceptual or empirical basis for making such a determination without directly observing function under these conditions". 

Additional factors contributing to the disability were noted to include disturbance of locomotion and interference with standing.  Muscle strength testing was normal with no evidence atrophy. There was no evidence of ankylosis, malunion or nonunion of the femur, flail hip joint, or a leg length discrepancy. The examiner noted the Veteran underwent a total left hip replacement in December 2017 and indicated residuals of moderately severe weakness, pain, and limitation of motion.  No assistive devices were indicated, and diagnostic testing confirmed the presence of arthritis in both the left and right hips. Functionally, the examiner noted the Veteran was currently employed at Boeing and that he has missed five weeks of work time over the past year.  Once again, the examiner noted the Veteran reported he cannot stand for long periods of time. Lastly, the examiner remarked that there is objective evidence of pain on passive ROM testing as well as with non-weight bearing. 

The Board finds the March 2018 VA examination is sufficient to determine the extent and severity of the Veteran's left hip disability when considered with the entire evidence of record. The requirements of DeLuca and Correia were all addressed by the examiner as well as the Veteran's own descriptions of his limitations which were considered in determining functional impact. The March 2018 examiner also considered the Veteran's December 2017 left hip surgery and indicated that the residuals were moderately severe in nature. 

The Board notes, that the March 2018 examiner did not provide, in terms of ROM, the functional impact of repetitive use over time and with flare ups.  In Sharp v. Shulkin, 26 Vet. App. 26 (2017), the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. Here, the March 2018 VA examiner did consider the medical information of record and provided an explanation as to why estimates on functional loss from his day-to-day environment could not be provided. 

The explanation by the VA examiner did not contain a detailed explanation however, the word choice of an examiner and the overall adequacy of the examination are to be determined upon review of the entire examination report as a whole. See Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (noting that medical reports "must be read as a whole" in determinations of adequacy), see also Dyment v. West, 13 Vet. App. 141 (1999) (holding medical examiner's word choice is not error where opinion is unambiguous).

Here, the examiner attempted to elicit the functional impact of the Veteran's left hip disability and adequately considered the medical evidence of record. Specifically, the Veteran's vague reports of experiencing flare ups of pain requiring him to rest and preventing him from standing for prolonged periods were noted on the examination report. Also, the Veteran's reported symptoms do not seem related to limitation of motion and instead indicate weakness and limited functional ability due to pain.  These impacts were specifically indicated by the March 2018 examiner when he noted that the Veteran experienced moderately severe residuals of weakness and pain after he underwent left hip arthoplasty in December 2017. In addition, the examiner thoroughly reviewed the Veteran's claims file and medical history noting that over the past twelve months, the Veteran had lost approximately five weeks of work due to his hip disability even though he remained employed at Boeing. 

Therefore, given the Veteran's highly general reports of flare ups with pain and loss of motion, coupled with the VA examiner's thorough review and consideration of the evidence of record and lay statements, the Board finds the March 2018 examination is adequate for adjudicative purposes. As a result, based upon consideration of the Veteran's VA examination as well as his lay statements and the medical evidence of record, the Board is thus able to determine the severity of the Veteran's residuals for the purposes of assigning a disability rating.

In consideration of the aforementioned evidence, the Board finds the Veteran's post left hip arthoplasty residuals of pain, weakness, and limited ROM are moderately severe and do not amount to markedly severe residuals warranting a 70 percent rating. The Veteran competently and credibly reported experiencing constant pain that he described as a dull ache that sometimes wakes him up in the night with flare-ups that have worse pain resulting in the need for him to rest. The Veteran experiences slight ROM limitations (loss of 10 degrees of flexion) after his left hip surgery and although weakness is noted, there are no reports of the need to use an assistive device. In addition, muscle strength testing was normal with no atrophy. Based on the Veteran's reports of dull achy pain and vague flare-ups as well as weakness and limited motion as described above, the Board finds the Veteran's left hip residuals most closely approximate the criteria of a 50 percent disability rating under DC 5054 for moderately severe residuals as currently assigned.

The Board has also considered whether the Veteran is entitled to additional separate ratings under Diagnostic Codes 5003, 5251, 5252, and/or 5253. Said codes, however, provide ratings based on pain and limited motion which are already expressly contemplated under DC 5054 (under which the Veteran is currently rated). The Veteran's pain and limited motion of the left hip are therefore expressly contemplated in his 50 percent rating under DC 5054. As such, awarding additional ratings under Diagnostic Codes 5003, 5251, 5252, and/or 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, 6 Vet. App. 259. Accordingly, the Board finds that the Veteran is not entitled to additional or separate ratings for the left hip disability, under Diagnostic Codes 5003, 5251, 5252, and/or 5253.

The Board has further considered whether the Veteran is entitled to a higher or separate rating for the right hip disability at any time during the period on appeal under the other diagnostic codes relating to disabilities of the hip and thigh. There is no indication, however, that the Veteran has experienced ankylosis or the functional equivalent in the left hip, or flail joint of the left hip, or impairment of the left femur. See Chavis v. McDonough, 34 Vet. App. 1, 20 (2021) (holding that consideration must still be given to whether a claimant's functional loss "is consistent with that contemplated by ankylosis  in other words, if it is the functional equivalent of ankylosis."). In fact, the March 2018 VA examiner found that the Veteran did not experience ankylosis of the left hip, flail joint of the left hip, or impairment of the left femur. In addition, the Veteran has never reported that that his left hip is frozen or immobile. Consequently, a higher or separate rating is not warranted under those diagnostic codes. See 38 C.F.R. § 4.71a, Diagnostic Codes 5250, 5254, and 5255.

Accordingly, the evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and a disability rating in excess of 50 percent status post left hip arthroplasty is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In denying an increased rating during this time period, the Board finds that the Veteran's disability is fully capable of evaluation under the rating schedule.

 

SHEREEN M. MARCUS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. F. Minnitte, Attorney Advisor

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.