BVA9500802 DOCKET NO. 92-11 003 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Fargo, North Dakota THE ISSUE Entitlement to an increased evaluation for synovitis/chondromalacia of the left hip with degenerative changes, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The veteran and his mother ATTORNEY FOR THE BOARD Daniel J. McTavish, Associate Counsel INTRODUCTION The veteran served in the Army National Guard during the period from May 1989 to July 1991. He is service connected for a left hip disability that apparently had its onset during a period of training extending from June to August 1989. This matter came before the Board of Veterans' Appeals (Board) on appeal of a November 1991 rating decision by the Fargo, North Dakota Regional Office (RO) of the Department of Veterans Affairs (VA), granting service connection and assigning a 10 percent evaluation for synovitis and chondromalacia of the left hip with degenerative changes. A personal hearing was held at the RO in March 1992. Testimony from the veteran and his mother was offered along with additional medical evidence in support of the veteran's claim. In January 1994, the Board remanded the veteran's claim for a current VA orthopedic evaluation and all up-to-date clinical records. Subsequent to the completion of this development, the RO increased the evaluation of the service-connected left hip disorder to 20 percent disabling by an April 1994 rating decision. The veteran continued his appeal for a higher evaluation. The case was returned to the Board in October 1994. At the time of his hearing, the veteran made comments about a back disorder, which he related to symptoms associated with his service-connected left hip. To the extent that he may be claiming entitlement to service connection for a back disorder, separate and distinct from the left hip disability, the Board points out that this issue has not been developed for appellate review, and will not be addressed herein. It is referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in substance, that the 20 percent rating assigned for the left hip does not reflect the true extent of disability. He asserts that the ability to bear weight on the left leg has deteriorated progressively and that he experiences stiffness and soreness in the left hip. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of all of the evidence and material of record in the claims file, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the veteran's claim for an increased rating for his left hip disability. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran's left hip disorder is manifested by synovitis with Grade IV chondromalacia and some loss of active range of motion of the hip and pain on active and passive range of motion. Flexion of the left hip is to 100 degrees with the knee bent and 75 degrees with the knee straight. 3. Impairment of the left hip results in disability equivalent to malunion of the femur with moderate impairment. CONCLUSION OF LAW The criteria for a rating higher than 20 percent for residuals of a fracture of the left hip have not been met. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.40, Part 4, Code 5255 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that the veteran's claim for an increased evaluation for left hip disability is well grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). That is, we find that he has submitted sufficient evidence to justify a belief by a fair and impartial individual that the claim is plausible. We are also satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required to comply with the duty to assist him mandated by 38 U.S.C.A. § 5107(a). In general, disability evaluations are assigned by applying a schedule of ratings which represent, as far as can practicably be determined, the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Such evaluations involve consideration of the level of impairment of the veteran’s ability to engage in ordinary activities, to include employment. 38 C.F.R. § 4.10. Where there is a question as to which of two evaluations should be applied, the higher evaluation 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 (1993). Although regulations require that, in evaluating a given disability, the disability be viewed in relation to its whole recorded history, 38 C.F.R. §§ 4.1, 4.2, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet.App 55 (1994). In evaluating the veteran’s claim, all regulations which are potentially applicable through assertions and issues raised in the record have been considered, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). Service medical records indicate that in August 1989, the veteran developed left hip and groin pain. In November 1990, he underwent arthroscopic examination of the left hip joint. On manipulation, he had mild limitation of motion of the left hip in all spheres when compared to the right hip. Arthroscopic evaluation revealed that he had marked synovitis throughout the hip and Grade IV chondromalacia with eburnated subchondral bone visible over the anteroinferior portion of the femoral head visible in the arthroscopy. He also had cartilaginous debris floating throughout the joint. Diagnosis was idiopathic chondrolysis, left hip. Post service treatment records show that the veteran was treated by E. N. Godfread, M.D., from May 1991 to June 1991. Examination in May 1991 showed that the veteran walked with a slight limp and experienced pain in the left hip upon flexion beyond 90 degrees. He also experienced pain with external and internal rotation of the hip. The examiner noted severe chondromalacia and early degenerative arthritis of the left hip. VA examination in October 1991 showed that the veteran had essentially full range of motion of the left hip, although he had pain at the extremes of flexion and internal rotation with the leg flexed at 90 degrees. He had no Trendelenburg gait. He had mild tenderness over the quadriceps insertion on the pubic tubercle. X-ray of the left hip demonstrated slight sclerosis and spurring on the anteroposterior of the left hip. At the time of that examination, the veteran reported that he had been employed as a cashier during the past 6 weeks and had lost no time from work. In November 1991, the RO granted service connection for synovitis/chondromalacia of the left hip with degenerative changes under VA's Schedule for Rating Disabilities (Rating Schedule), Diagnostic Code 5010-5252. 38 C.F.R. Part 4 (1993). The veteran returned to Dr. Godfread in February 1992 for treatment of left hip pain. It was noted that the veteran complained of a "lot of pain" with flexion beyond 90 degrees, external rotation beyond 40 degrees, and internal rotation beyond 10 degrees. He was reported to be able to flex and extend his hips rather well. Dr. Godfread indicated that the veteran's condition might be improving, although it was recognized that he had pain on motion. It was recommended that he avoid heavy lifting and jobs requiring that he maintain a fixed position for long periods of time. The diagnosis was chondromalacia of the left hip. X-rays, when compared to those of May 1991, revealed there had been no changes in the left hip. The veteran submitted a physical therapy functional capacity assessment that was conducted at St. Alexius Medical Center in late February 1992. The veteran reported that at times he experienced such severe hip pain that he was unable to lift his left leg. Kneeling, squatting, and climbing stairs were described as being "quite difficult." However, neither sitting or standing bothered the veteran, unless he stood for several hours. There was decreased range of motion of the left hip with flexion to 109 degrees with a pulling sensation on return to resting position. Hip extension was to 6 degrees; abduction was to 25 degrees. External rotation was to 10 degrees and internal rotation to 25 degrees. There was also significant left hip pain on most hip motions and functions. The veteran fit into the "medium" work category as defined by the Dictionary of Occupational Titles. It was noted that climbing and squatting caused significant pain. The veteran appeared at a hearing before the RO in March 1992, accompanied by his mother. He testified that he is greatly limited in activities such as walking, squatting, bending and kneeling due to the pain and limited range of motion caused by his left hip disorder. He stated that he was never completely free of pain or stiffness; he used over the counter pain medication when needed. He indicated that he worked and was attending school. Reportedly his employer made allowances for him. The veteran's mother also testified as to her observations as to his symptoms. In March 1994, the veteran underwent a VA orthopedic evaluation pursuant to the Board's January 1994 remand. The veteran reported that he was in the business of selling shoes and had been since November 1992. He had also worked as a cashier at an Amoco service station from September 1991 to January 1993. He reported losing a total of 7 days from work due to left hip complaints, since September 1991. His chief complaint at the time of the examination was left hip pain and low back pain on the left side. He stated that every second or third day his hip pain flared up so badly that he could hardly put weight or walk on it. He claimed that he was limited in his activities. VA neurological examination conducted at that time was normal. However, there was limitation of motion and weakness of the left hip upon flexion and upon internal and external rotation. Weakness was also noted on hip adduction and abduction on the left. There was no significant atrophy or fasciculations in either lower extremity. Straight leg raising was negative. Examination of his gait showed a slight Trendelenburg limp on the left hip with some stiffness through the hip pelvis. On range of motion of the hip, flexion actively was 100 degrees with the knee bent and 75 degrees with the knee straight. External rotation of the hip on the left side was 33 degrees actively and 39 degrees passively with pain. Adduction was 5 degrees actively, 9 degrees passively. Extension was 12 degrees actively, 16 degrees passively. Testing of the hip joint was positive for pain. X- ray study showed slight eburnation of the left acetabulum and little joint space narrowing. The impression was that of a status post hairline fracture of the head of the femur as reported by the veteran with subsequent post-traumatic synovitis and at least Grade III chondromalacia with beginning arthritic changes and some loss of active range of motion of the hip with pain on active and passive range of motion. Upon review of all of the medical reports above, the RO increased the veteran's disability evaluation associated with his left hip to 20 percent under Code 5010-5255. The RO stated that the 20 percent evaluation was assigned with residuals rated analogous to a malunion of the left femur resulting in moderate disability. A 20 percent rating has been assigned for left disability under Code 5255 of the Rating Schedule. This evaluation, for impairment of the femur, contemplates moderate knee or hip disability. A 30 percent rating is provided under that section when there is malunion of femur with marked knee or hip disability. 38 C.F.R. Part 4, Code 5255 (1993). Other codes may also be considered. Code 5253 provides for a rating of 20 percent for limitation of abduction of the thigh, with motion lost beyond 10 degrees. Limitation of adduction or rotation of the thigh warrants assignment of a 10 percent rating. Under Code 5252, a 30 percent rating may be assigned for limitation of flexion of the thigh to 20 degrees; where there is limitation to 30 degrees, a 20 percent rating is in order. 38 C.F.R. Part 4, Code 5252 (1993). Code 5251 provides that where limitation of extension of the thigh is to 5 degrees, a rating of 10 percent is in order. Under Code 5250, a 60 percent rating may be assigned for ankylosis of the hip at a favorable position, in flexion at an angle between 20 degrees and 40 degrees, and slight adduction or abduction. 38 C.F.R. Part 4, Code 5250 (1993). The medical evidence shows synovitis and chondromalacia with some loss of active range of motion of the hip and pain on active and passive range of motion. The veteran clearly does not have ankylosis of the hip joint, nor does he have limitation of motion of the hip or thigh to such extent that a compensable rating would be in order under the applicable rating code, solely on the basis of limitation of motion. Likewise, although the left hip is described as being somewhat weaker than the right, there is no muscle atrophy of left leg. Neurological examination does not suggest any significant abnormalities. A thorough study of the record suggests that the primary disability associated with the hip disorder involves pain. The veteran has reported that he experiences pain on a daily basis, that his pain is exacerbated by certain activity, such as stair climbing, and that at times his pain is incapacitating. 38 C.F.R. § 4.40 provides that in rating disabilities of the musculoskeletal system, consideration be given to functional loss, which includes pain and weakness. Pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking motion. A part of the musculoskeletal system which becomes painful on use must be regarded as seriously disabled. Despite, then, the absence of compensable limitation of motion in this case, and applying the findings of the examiner to the rating schedule, the Board concludes that the current 20 percent rating under Code 5255 is the appropriate schedular rating assignable for the impairment shown by the evidence in the record. Impairment of the hip is at a moderate level, assessed almost entirely on the basis of complaints of pain and stiffness, X-ray findings, and the observation that the veteran walks with a limp. He is not shown to have more functional impairment so as to warrant assignment of a 30 percent rating. He is able to walk and stand without pain. The level of disability is not shown to more nearly approximate that provided for an increased rating under any other code. 38 C.F.R. § 4.7 (1993). The case does not otherwise present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321 (1993). In this regard, the Board points out that the record establishes that the veteran is attending school and working. He reported at the time of the last VA examination that he had missed only a few days of work during the past year due to hip symptoms. This testimony directly conflicts with his statement to a VA physician that every few days he is incapacitated by pain. Since his testimony was given under oath, it is deemed more probative. He takes no prescription or over the counter pain medication on a regular basis, using non- prescription medication only when needed. Accordingly, an increased evaluation on an extraschedular basis is denied. In the opinion of the Board, the preponderance of the evidence is against the veteran's claim. As such, the record does not present an approximate balance of positive and negative evidence with respect to the merits of his claim. Accordingly, the benefit of the doubt is not for application in this case. 38 U.S.C.A. § 5107(b). (CONTINUED ON NEXT PAGE) ORDER An increased evaluation for left hip disability is denied. N. R. ROBIN 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.