Citation Nr: 0000099 Decision Date: 01/04/00 Archive Date: 12/28/01 DOCKET NO. 98-16 641 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an increased disability evaluation for a left hip disability, currently evaluated as 30 percent disabling. 2. Entitlement to an increased disability evaluation for a lumbar spine disability, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. N. Booher, Associate Counsel INTRODUCTION The veteran had active service from September 1960 to May 1967. His appeal ensues from a June 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office in Detroit, Michigan (RO), which denied the benefits sought on appeal. The Board initially observes that on a VA Form 21-4138 (Statement in Support of Claim) filed by the veteran in November 1979, the veteran raised an informal claim for service connection for a nervous disorder. Specifically the veteran indicated "I do have nervous problems which makes [sic] me anxious. I often worry about my left leg giving out because I have fallen. My nervousness and back condition are on the records." It does not appear from the record that the RO ever considered this claim. Therefore, this matter is referred to the RO for appropriate action. FINDINGS OF FACT 1. The veteran's left hip disability is currently manifested by degenerative arthritis with shortening of the left leg, pain, muscle atrophy and difficulty standing or walking for long periods of time, but is not productive of limitation of the thigh to 10 degrees, limitation of extension of the leg to 30 degrees, or impairment of greater severity than malunion with marked knee or hip disability. 2. The veteran's lumbar spine disability is currently manifested by degenerative arthritis, lordosis, rotoscoliosis, pain, and some limitation of motion. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 30 percent for a left hip disorder have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.40, 4.71a, Diagnostic Code 5255 (1999). 2. The criteria for a 20 percent evaluation for a lumbar spine disorder have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.40, 4.71a Diagnostic Code 5292 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran asserts that the evaluations assigned for his left hip and lumbar spine disorders do not reflect accurately the severity of his symptomatology. The veteran's assertion of an increase in the severity of his left hip and lumbar spine symptomatology is sufficient to establish well-grounded claims for higher evaluations pursuant to 38 U.S.C.A. § 5107 (West 1991). Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 631-2 (1992). Having examined the record in support of these claims, the Board also finds that the VA has obtained and fully developed all relevant evidence necessary for the equitable disposition of the veteran's claims. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1999). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. 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. It is essential that the examination on which an evaluation is based adequately portray the anatomical damage and functional loss with respect to all of 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 and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45. I. Claim for Increased Evaluation for Left Hip Disability In a June 1998 rating decision, the RO evaluated the veteran's left hip disability as being 30 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5255. DC 5255 provides that a 30 percent evaluation is warranted for impairment of the femur, consisting of malunion with marked knee or hip disability. A 60 percent evaluation is warranted for either the fracture of surgical neck of the femur, with false joint or for nonunion, without loose motion, weightbearing preserved with aid of brace. An 80 percent evaluation is assignable for a fracture of the shaft or anatomical neck of: with nonunion, with loose motion (spiral or oblique fracture). Other applicable diagnostic codes that the Board will also consider in evaluating the veteran's claim for an increased rating for his left hip disorder are diagnostic codes 5250, 5251, 5252, 5253, and 5254. These codes set forth the criteria to be considered for ankylosis of the hip, limitation of extension of the thigh, limitation of flexion of the thigh, impairment of the thigh and flail joint of the hip. After reviewing the evidence, the Board is satisfied that the veteran's disability picture is most closely approximated by the criteria set forth in DC 5255. Service medical records show that the veteran injured his left hip as a child. He indicated that he was advised that his left hip was dislocated as a child and as a result he had to have a pin placed in his left hip. During service, the veteran reinjured his hip in 1966 and experienced pain and decreased motion thereafter. In April 1967 he complained of left hip pain, with decreased motion and was diagnosed with slipped femoral capital epiphysis, left, old. In June 1977, the veteran underwent a VA examination. At that time, the veteran reported that he was unemployed and he was diagnosed with residual deformity of the left femoral head and neck secondary to old slipped femoral capital epiphysis and moderate degenerative arthritic changes in the left hip. The veteran had limited flexion of the hip to 90 degrees and normal extension, abduction and adduction. Service connection for residuals of a left hip fracture was granted, and a 30 percent evaluation was assigned, effective in March 1977. That evaluation remains in effect, unchanged. VA and private treatment records dated in 1977 through 1979 continued to reflect treatment for a left hip disability, including a November 1977 opinion from M. Alviar Kayali, M.D., that degeneration of the left hip and atrophy of the left leg rendered the veteran totally disabled. Following submission of the current claim for an evaluation in excess of 30 percent, the veteran was afforded another VA examination in May 1998. The report reflects that the veteran indicated that he was self-employed and that his work required some driving. He stated that he had experienced worsening pain and discomfort in the left hip over the previous 6 months and that he found it difficult to stand or walk for a long period of time. The examiner noted that the veteran required the use of a 11/2-inch shoe lift on the left side and that he walked with a gross left-sided limp. The veteran's hips were symmetrical, but there was atrophy of the muscles on the left side. A 11/2-inch shortening of the left leg as measured from the anterior-superior iliac spine to medial malleolus was noted. The left leg seemed to be in some external rotation. The veteran had forward flexion of the left hip to 50 degrees, extension and abduction to 0 degrees, adduction to 5 degrees, internal rotation to 0 degrees, external rotation to 30-40 degrees and a lack of internal rotation by 30 degrees. X-rays revealed gross degenerative arthritis with residuals of previous slippage capital femoral epiphysis, gross varus with rising of the trochanter more proximally. The veteran was diagnosed with status post degenerative arthritis of the left hip with shortening of the leg, residuals of slipped capital femoral epiphysis in teenage years. The evidence of record establishes that the veteran currently has degenerative arthritis in the left hip with shortening of the left leg. His left hip disorder is manifested by pain, muscle atrophy and difficulty standing or walking for long periods of time. The veteran's disability has not been shown to be productive of a fracture of the surgical neck of the femur with false joint, fracture of the shaft or anatomical neck of the femur with nonunion without loose motion, weight bearing preserved with the aid of a brace, or fracture of the shaft or anatomical neck without loose motion. Therefore, based on this evidence, while the veteran clearly has marked left hip disability, the Board is satisfied that the veteran is not entitled to a disability evaluation in excess of 30 percent under DC 5255. Shortening of the bones of the lower extremity is rated 10 percent disabling when 11/4 to 2 inches (3.2 centimeters to 5.1 centimeters) shorter than the other leg. 38 C.F.R. § 4.71a, Code 5275. However, a note to this diagnostic code provides that ratings based on shortening of the leg are not to be combined with other ratings for fracture or faulty union in the same extremity. Thus, a separate 10 percent evaluation for this abnormality is not authorized. While the medical evidence shows the right hip has no abduction or internal rotation, the joint is not completely ankylosed (immobilized or frozen in one position), since there is full extension of 0 degrees, flexion can be performed to 50 degrees, external rotation can be performed to 30 degrees or more, and the veteran retains slight range (5 degrees) of adduction. See 38 C.F.R. § 4.71, Plate II (depicting normal ranges of certain hip motions). The veteran's limitation of range of hip motion, while significant, does not meet or approximate the criteria for favorable ankylosis, so as to warrant a 60 percent rating under Code 5250. The evaluation currently assigned, a 30 percent rating, is the highest schedular evaluation for malunion of the femur. This code contemplates both knee and hip impairment associated with a femur fracture, so no separate or additional evaluation is for knee impairment is applicable. To warrant a higher schedular evaluation than the current 30 percent evaluation, there must be a fracture of the surgical neck, with false joint or a nonunion, and weightbearing preserved with the aid of a brace. The medical evidence of record establishes that there is not a false joint or a nonunion, and there is no evidence that the veteran requires a brace to preserve weightbearing. The Board has considered whether an increased evaluation is warranted for pain or functional loss due to pain. However, the Board finds that the criteria for a 30 percent evaluation under Diagnostic Code 5255, marked knee or hip disability, contemplates pain. This diagnostic code is not based solely on a specified limitation of motion. Compare Diagnostic Code 5255 with 5250-5253. Because the evaluation criterion encompasses pain, an evaluation in excess of 30 percent is not warranted based on pain and functional loss, although such symptomatology is clearly present. 38 C.F.R. §§ 4.40, 4.59. 2. Claim for Increased Evaluation for Lumbar Spine Disability An August 1979 VA examination report shows that the veteran presented with complaints of left hip pain. The veteran was diagnosed with lordosis and rotoscoliosis secondary to leg shortening and hip deformity with dislocation of the anatomical neck of the femur. Service connection was granted for that disability, as secondary to his service-connected left hip disability, and a 10 percent evaluation was assigned, effective in August 1979. Following submission of a claim for an increased evaluation in excess of 10 percent, the veteran was afforded VA examination in May 1998. The veteran reported experiencing some aching in his back. Physical examination revealed postural scoliosis on standing. There was no spasm in the lumbosacral spine. The veteran had extension of the lumbosacral spine to 25 degrees, forward flexion to 50 degrees with complaint of pain, right and left lateral flexion to 20 degrees and right and left lateral rotation to 20 degrees. X-rays of the lumbosacral spine were essentially normal with mild degenerative changes. The veteran was diagnosed with mild degenerative arthritis of the lumbosacral spine. The examiner opined that the veteran's scoliosis was postural, and was due to shortening of the leg. He further opined that this condition was directly related to the service connected left hip disorder. The Board notes that the veteran has already been granted service connection for rotoscoliosis, which encompasses the veteran's postural scoliosis. In the June 1998 rating decision, the RO also evaluated the veteran's lumbar spine disorder as being 10 percent disabling pursuant to 38 C.F.R. § 4.71a , DC 5292. DC 5292 provides for a 10 percent evaluation for slight limitation of motion of the lumbar spine, a 20 percent evaluation for moderate limitation of motion, and a 40 percent rating for severe limitation of motion. The Board has also considered diagnostic codes 5285, 5286, 5287, 5288, 5289, 5290, 5291, 5293, 5294 and 5295. Because there is no evidence of record to show that the veteran has been shown to have residuals of a fractured vertebra, complete bony fixation of the spine, ankylosis of the cervical, dorsal, or lumbar spine, limitation of motion of the cervical, or dorsal spine, sacro- iliac injury and weakness, intervertebral disc syndrome or lumbosacral strain, the Board finds that the RO appropriately rated the veteran under DC 5292. In regard to the veteran's lumbar spine disability, the evidence shows that the veteran has been diagnosed with mild degenerative arthritis of the lumbosacral spine, as well as lordosis and rotoscoliosis. There is also objective limitation of motion of the lumbar spine. In particular, the veteran's forward flexion is limited to 50 degrees, and the veteran experiences pain with that range of motion. The Board also notes that the veteran has pain on motion as well as complaints of subjective aching. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board notes that a 10 percent evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5003, for arthritis, is not for application in this case, as the Diagnostic Code, by its terms, is applicable to provide a 10 percent evaluation only if loss of range of motion due to arthritis is noncompensable. In reviewing the evidence as a whole, including the evidence of loss of flexion of the lumbosacral spine, underlying pathology, and pain on motion, the Board concludes that there is moderate limitation of motion of the lumbar spine, so as to warrant a 20 percent evaluation under Diagnostic Code 5292. The Board does not find that the veteran's lumbar spine disability results in severe limitation of motion. In particular, the Board notes that the veteran retains right and left lateral flexion to 20 degrees and right and left lateral rotation to 20 degrees, and is thus has range of motion of the back in all planes. There is no clinical evidence that the veteran has back spasms. He describes his back pain as an "aching" type pain. The Board finds that the veteran's loss of range of motion and aching pain are not so severe as to meet or approximate the criteria for a 40 percent evaluation under Diagnostic Code 5292 or any other applicable diagnostic code. Conclusion The Board notes evidence that the veteran was totally disabled by his hip disability in November 1977. However, the claims file reflects that the veteran does not currently contend that he is unable to work. The most recent VA examination of record reflects that the veteran is able to stand and walk without assistive devices, although not for prolonged periods of time. He is self-employed. He does not currently contend that he is unemployable. The Board emphasizes that it does not doubt the sincerity of the veteran's claim that the residuals of his left hip and lumbar spine disabilities result in significant impairment. However, under the applicable diagnostic criteria which the Board must consider, the preponderance of the evidence is against entitlement to a rating in excess of 30 percent for the veteran's left hip disability and against an evaluation in excess of 20 percent for the veteran's lumbar spine disability at this time. It follows that the reasonable doubt provisions of 38 U.S.C.A. § 5107(b) do not otherwise permit a favorable resolution of the appeal. The veteran may always advance new claims for increased ratings should the severity of the disabilities increase in the future. Additionally, the Board finds that the evidence of record does not present such an exceptional or unusual disability as to warrant an extra-schedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321(b)(1). In the instant case, the assigned 30 percent and 20 percent evaluations for the service-connected disabilities reflect that there is significant interference with employment. However, there is no current medical or other evidence that the veteran's hip and lumbar spine disabilities result in more than marked interference with employment or that such effect on employment cannot be compensated under the schedular criteria. There is no evidence that the veteran's hip and lumbar spine disabilities have necessitated frequent periods of hospitalization. The evidence does not reflect any unusual factor which renders impracticable the application of the regular schedular standards to the veteran's claim. Consequently, the Board determines that the criteria for assignment of an extra-schedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 157 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). ORDER Entitlement to an evaluation in excess of 30 percent for a left hip disorder is denied. Entitlement to a 20 percent evaluation for a lumbar spine disorder is granted, subject to laws and regulations regarding the effective dates of monetary awards. TRESA M. SCHLECHT Acting Member, Board of Veterans' Appeals