BVA9502629 DOCKET NO. 92-15 623 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to an increased rating for degenerative joint disease of the left hip, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Thomas A. Pluta, Counsel INTRODUCTION The veteran had verified active service from January 1978 to December 1990, in addition to over 17 years of prior active service. This appeal arises from an April 1991 rating action of the Seattle, Washington Regional Office (RO) which granted service connection for degenerative joint disease of the left knee and hip, each assigned a 10 percent rating from January 1991; the veteran appealed the 10 percent ratings as inadequate. By decision of December 1992, the Board of Veterans' Appeals (Board) remanded this case to the RO for further development of the evidence and for due process development. By rating action of March 1994, the RO granted an increased rating to 30 percent for degenerative joint disease of the left knee from January 1991; this represents a substantial grant of the benefit sought on appeal with respect to that issue. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in effect, that his degenerative joint disease of the left hip is more disabling than currently evaluated. He asserts that he has left leg shortening, and that he must take several medications to alleviate constant hip pain. He states that he suffers from such left leg fatigue with prolonged use that he must drag the leg. The representative requests that a 20 percent rating be assigned under Diagnostic Code 5003 based on the fact that the veteran has degenerative joint disease in both the left hip and knee joints. The representative also requests separate evaluations for symptomatic scars as residuals of left hip surgery and for residuals of a left femur injury. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of all evidence and material of record in the veteran's claims file, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence supports an increased rating for degenerative joint disease of the left hip. FINDING OF FACT The veteran's degenerative joint disease of the left hip is manifested by complaints of constant pain, with minimal, painless internal and external rotation, range of motion from neutral extension to approximately 70 degrees of flexion, a well-healed left hip scar, and X-ray evidence of marked degenerative changes with solid union of the left femoral fracture with internal fixation devices shown on recent U.S. Department of Veterans Affairs (VA) examination, and is productive of moderate functional hip disability due to pain, but has not resulted in marked interference with employment or required frequent periods of hospitalization. CONCLUSION OF LAW The veteran's degenerative joint disease of the left hip is 20 percent disabling according to the schedular criteria. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 3.321(b)(1), Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.14, 4.40, 4.45, Codes 5003, 5010, 5251, 5252, 5253, 5255 (1993). REASONS AND BASES FOR FINDING AND CONCLUSION We find that the veteran's claim is "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a). That is, we find that he has presented a claim which is plausible. We are also satisfied that all relevant facts have been properly developed, and that no further development is required to comply with the duty to assist the veteran mandated by 38 U.S.C.A. § 5107(a). In this regard, the Board notes that development pursuant to the December 1992 Board remand decision resulted in an inquiry for additional medical records from the Madigan Army Medical Center, but that facility responded in March and June 1993 that no additional medical records of treatment of the veteran were available. Received in 1993 were additional medical records of treatment of the veteran at a group health cooperative. In addition, the veteran gave testimony at another hearing on appeal in April 1993. Under the applicable criteria, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. Part 4. Separate diagnostic codes identify the various disabilities. The VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). These regulations include, but are not limited to, 38 C.F.R. §§ 4.1 and 4.2. Also, 38 C.F.R. § 4.10 provides that, in cases of functional impairment, evaluations must be based upon lack of usefulness of the affected part or systems, and medical examiners must furnish, in addition to the etiological, anatomical, pathological, laboratory and prognostic data required for ordinary medical classification, full description of the effects of the disability upon the person's ordinary activity. These requirements for evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decisions based upon a single, incomplete, or inaccurate report, and to enable the VA to make a more precise evaluation of the level of the disability and of any changes in the condition. Schafrath, 1 Vet.App. at 594. In addition, 38 C.F.R. § 4.40 requires consideration of functional disability due to pain and weakness. As regards to the joints, 38 C.F.R. § 4.45 notes that the factors of disability reside in reductions of their normal excursion of movements in different planes. The considerations include more or less movement than normal, weakened movement, excess fatigability, incoordination, impaired ability to execute skilled movements smoothly, pain on movement, swelling, deformity or atrophy of disuse, instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing. By rating action of April 1991, the RO granted service connection for residuals of left femur/hip fracture, rated as degenerative joint disease of the left hip and assigned a 10 percent rating from January 1991 under Diagnostic Codes 5010-5255 of the VA's Schedule for Rating Disabilities (38 C.F.R. Part 4), based on inservice findings of left femur/hip fractures in a motor vehicle accident in April 1979, November 1980 findings of left hip fixation with screws, December 1980 findings of post-traumatic osteoarthritis of the left hip, February 1986 findings of bursitis over the site of left hip hardware, February 1989 X-ray evidence of myositis ossificans of the left hip, and July 1989 hospitalization for removal of a left hip screw, and postservice findings of left hip fracture residuals with chronic pain, decreased range of motion, and X-ray evidence of osteopenia and marked degenerative change on VA examination of February 1991. Under the applicable criteria, arthritis due to trauma, substantiated by X-ray findings, is rated as degenerative arthritis. 38 C.F.R. Part 4, Code 5010. 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. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. Part 4, Code 5003. Limitation of extension of either thigh to 5 degrees warrants a 10 percent evaluation. 38 C.F.R. Part 4, Code 5251. Limitation of flexion of either thigh to 45 degrees warrants a 10 percent evaluation. A 20 percent evaluation requires that flexion be limited to 30 degrees. 38 C.F.R. Part 4, Code 5252. Limitation of rotation of either thigh warrants a 10 percent evaluation when toe-out of the affected leg cannot be performed to more than 15 degrees. Limitation of adduction of either thigh warrants a 10 percent evaluation when the legs cannot be crossed due to the limitation. Limitation of abduction of either thigh warrants a 20 percent evaluation when motion is lost beyond 10 degrees. 38 C.F.R. Part 4, Code 5253. Malunion of either femur warrants a 10 percent evaluation when the disability results in slight knee or hip disability. A 20 percent evaluation requires that the malunion produce moderate knee or hip disability. A 30 percent evaluation requires that the malunion produce marked knee or hip disability. 38 C.F.R. Part 4, Code 5255. The U.S. Court of Veterans Appeals (Court) has held that the rating board or the Board must weigh the evidence and make an informed choice as to which diagnostic code provides the most appropriate method for rating the veteran's disability. Implicit within the language of 38 U.S.C.A. § 1155 is the concept that the rating schedule may not be employed as a vehicle for compensating a claimant twice (or more) for the same symptomatology; such a result would overcompensate the claimant for the actual impairment of his earning capacity. In the field of workers' compensation law, such duplication has often been referred to as "pyramiding of benefits," "pyramiding of disabilities," or "pyramiding of compensation." Brady v. Brown, 4 Vet.App. 203 (1993). 38 C.F.R. § 4.14 (1993) provides that evaluation of the same disability or manifestations under different diagnoses is to be avoided. Rather, the veteran's disability will be rated under the diagnostic code which allows the highest possible evaluation for the clinical findings shown on objective examination. In this regard, the Board has considered the representative's October 1994 request that a 20 percent rating be assigned under Diagnostic Code 5003 based on the fact that the veteran has degenerative joint disease in both the left hip and knee joints. However, this is not permissible, as Diagnostic Code 5003 specifically provides that 10 percent and 20 percent ratings based on X-ray findings under that code will not be combined with ratings based on limitation of motion. In this case, a 30 percent rating was granted for degenerative joint disease of the left knee by rating action of March 1994, based in part upon limitation of motion of that knee. This same joint may not be considered in assigning a rating based on x-ray findings. Moreover, the 20 percent rating granted the degenerative joint disease of the left hip by the Board's decision, below, has also been assigned based, in part, upon limitation of motion of the hip. In statements of September 1992 and November 1994, the veteran's representative requested a separate evaluation for a symptomatic scar as a residual of the veteran's left hip surgery. Except as otherwise provided in the rating schedule, all disabilities, including those arising from a single disease entity, are to be rated separately, and then all ratings are to be combined pursuant to 38 C.F.R. § 4.25 (1993). One exception provided for is the anti-pyramiding provision of 38 C.F.R. § 4.14, referred to above. In Esteban v. Brown, 6 Vet. App. 259 (1994), the Court held that a separate rating could be granted for a scar where none of the symptomatology for any one condition was duplicative of or overlapping with the symptomatology of another. In this case, the veteran's service-connected residuals of left femur/hip fracture with degenerative joint disease has been rated under Diagnostic Codes 5010-5255 for traumatic arthritis and malunion of a femur productive of hip disability. However, one of the components of hip disability is pain, as noted in 38 C.F.R. §§ 4.40 and 4.45, above, and as such, to evaluate the veteran on the basis of a painful scar under Diagnostic Code 7804 would be duplicative of the symptomatology contemplated by Diagnostic Codes 5010-5255, and would thus constitute pyramiding specifically prohibited by 38 C.F.R. § 4.14 and the Court's holding in Esteban. Lastly, the Board notes the representative's September 1992 request for a separate evaluation for residuals of a left femur injury. However, service connection for such residuals has already been granted by rating action of April 1991, referred to above, with the disease entity being rated under the criteria for both arthritis of the left hip (Diagnostic Code 5010) and impairment of function of the left thigh and hip (Diagnostic Codes 5251, 5252, 5253, 5255). To rate the left femur (thigh) separately from the hip would constitute rating the same disability twice, and would thus also constitute pyramiding prohibited by 38 C.F.R. § 4.14 and Esteban. After reviewing the entire evidence of record, the Board concludes that the evidence warrants an increased rating to 20 percent for the veteran's degenerative joint disease of the left hip. On VA examination of February 1991, the veteran's complaints included inability to lie on his left side due to residuals of inservice surgery for a left hip fracture, aching discomfort with exposure to cool temperatures, and limitation of ability to walk to a half-mile and stand for less than 10 minutes at a time. On examination, range of motion testing of the left hip showed abduction limited to 20 degrees. However, hip flexion was within normal limits, and motor and sensory examination was entirely normal. X-rays of the left hip revealed an L bar and multiple surgical screws transfixing an old, healed intertrochanteric fracture and varus deformity. There was rather significant osteopenia of the proximal femur secondary to surgery, as well as degenerative disease of the left hip. The radiologist's impression was old, healed surgically-stabilized fracture of the proximal left femur with rather marked osteopenia and degenerative changes of the hip. The diagnostic impression was history of left hip fracture with chronic pain, decreased range of motion on examination, and osteopenia and marked degenerative change on X-ray. On VA examination of November 1991, the veteran's complaints included chronic left hip pain with weight bearing and which worsened with exposure to cool temperatures. There was no history of hip dislocation. On examination, the veteran walked with an obvious limp. However, motor and sensory examinations were normal, and there was a well-healed left hip scar with tenderness to palpation over the scar. Straight leg raising was limited to 40 degrees, with hip flexion also to 40 degrees. Abduction was normal. The left lower extremity was approximately 2.5 centimeters shorter than the right. However, the examiner did not state the etiology of the shortening. X-rays of the left hip revealed an L-shaped plate in the proximal left thigh. The short limb of the L passed through the greater trochanter into the femoral neck and head. The long limb was applied to the lateral aspect of the left femoral shaft by numerous screws. There were additional screws through the subtrochanteric region of the bone as well. There was a coarsening of bony texture with hyperostotic change about the subtrochanteric area due to an old healed fracture. The left hip joint was normal. The radiologist's conclusions were old proximal left femoral fracture with internal fixation devices and solid union; no active disease. The diagnostic impression was history of left hip injury secondary to motor vehicle accident in 1971, status post surgery, chronic pain and decreased range of motion, solid union of proximal left femoral fracture. At the November 1991 hearing on appeal, the veteran testified that he had difficulty with left hip motion in cold weather, and that he could not lie on his left side. Private outpatient treatment records of February 1993 showed the veteran's complaints including low back and left hip pain after an injury at work. On examination, gait was within normal limits, and the diagnosis was left lumbosacral strain. The Board notes that the veteran is service connected for degenerative joint disease of the lumbar spine. In March 1993, straight leg raising was noted to be 70 degrees on the left. Pelvic X-rays revealed status post internal fixation of a proximal femoral fracture with a fixation plate and multiple screws in place. There was left iliac bone deformity which likely was a bone graft donor site. At an April 1993 hearing on appeal, the veteran testified that he had been told by a medical provider that his right leg was three- quarters of an inch longer than his left leg due to his left leg injury. In this regard, the Board notes that the veteran is also service connected for degenerative joint disease of the left knee. The veteran also testified that he currently took several prescribed medications for his service-connected disabilities, and that he still had constant left hip pain. He stated that his pain impaired him in his job as a nurse, involving bending and squatting in carrying patients, and that he had lost three weeks of time from work due to this since January 1993. He also stated that he almost always used a cane for ambulation. On VA examination in April 1993, the veteran was noted to be currently employed as a nurse at a hospital. He stated that he walked with a cane due to his service-connected left knee disability. His current complaints included pain over the plate on the lateral aspect of the left thigh. The examiner commented that it was difficult to differentiate between the veteran's hip and knee pain. On examination, the veteran walked with an antalgic gait with a cane. Range of motion testing of the left hip showed neutral extension to approximately 70 degrees of flexion. There was minimal, painless internal and external rotation. The incision on the left lateral proximal femur was approximately 12 inches long, well-healed, and without evidence of infection. Pelvic X-rays to include the left hip showed no change compared to X-rays of November 1991. The impression was no change in the appearance of the postoperative changes of the proximal left femur. The clinical findings clearly do not show left thigh flexion limited to 30 degrees or limitation of abduction of the left thigh with motion lost beyond 10 degrees which would entitle the veteran to a 20 percent rating under Diagnostic Codes 5252 or 5253, respectively. While abduction was not specifically mentioned during the recent VA examination, it was reported to be normal on VA examination of November 1991. No evidence has been submitted showing a change in this finding and no complaints with regard to abduction have been registered. Having considered the veteran's complaints of constant left hip pain which impaired him in his job as a nurse, together with the X-ray findings consistently showing marked degenerative changes of the hip, the Board finds that the evidence shows loss of hip function due to pain which is equivalent to moderate hip disability, thus warranting an increased rating to 20 percent under Diagnostic Code 5255 and the provisions of 38 C.F.R. § 4.40. However, a 30 percent rating is not warranted, as loss of hip function equivalent to marked hip disability has clearly not been shown. In this regard, the Board notes the veteran's statement on VA examination of February 1991 that his left hip disability permitted him to walk for up to a half-mile at a time; private outpatient treatment records of February and March 1993 showing interference with the veteran's employment primarily due to his service-connected back disability; the veteran's attribution of pain impairing him industrially to his service-connected back and left knee disabilities, in testimony at the April 1993 hearing on appeal; and the clinical findings on the most recent VA examination of April 1993, referred to in detail above. The Board has also considered the veteran's contention that he has left leg shortening which should be considered in evaluating his left hip disability. A 2.5 centimeter shortening of the left lower extremity relative to the right was found on VA examination of November 1991, but the examiner did not indicate the etiology of the shortening. In this regard, the Board notes that, in addition to the left hip, the veteran is also service connected for degenerative joint disease of the left knee, assigned a 30 percent rating. The service medical records are negative for any notation of left lower extremity shortening, so it is unclear whether it can be attributed to any service-connected disorder. However, the Board finds that the question of whether the veteran's left lower extremity shortening is attributable to his service-connected left hip disorder is not a factor in rating his left hip in this case, as Diagnostic Code 5275 requires a minimum 3.2 centimeter shortening to establish entitlement to a compensable (10 percent) evaluation, and the veteran's 2.5 centimeter shortening would not meet the minimal requirement for a compensable rating. Neither does the veteran's degenerative joint disease of the left hip present such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. On VA examination of February 1991, the veteran stated that his left hip disability did not permit him to stand for more than 10 minutes at a time, although he could walk for up to a half- mile at a time. Private outpatient treatment records of February and March 1993 show interference with the veteran's employment primarily due to his service-connected low back disability, not the left hip. At the April 1993 hearing on appeal, the veteran testified that pain due to his various disabilities impaired him in his job as a nurse, involving bending and squatting in carrying patients, and that he had lost three weeks of time from work due to this since January 1993. However, the Board notes that the veteran attributed his symptoms to his service-connected back and left knee disabilities, not his left hip, which is the pertinent issue on appeal. The degree to which the veteran's service-connected back and left knee disabilities impair him industrially has been contemplated in the percentage evaluation assigned those disorders, and is not at issue here. On VA examination of April 1993, the veteran stated that he walked with a cane due to his service-connected left knee disability, not his left hip. Neither does the record reflect frequent periods of hospitalization attributable to degenerative joint disease of the left hip. Thus, the Board finds that an extraschedular evaluation is not warranted. ORDER An increased rating to 20 percent for degenerative joint disease of the left hip is granted, subject to the applicable regulations governing the payment of monetary benefits. I. S. SHERMAN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.