Citation Nr: 0002372 Decision Date: 01/31/00 Archive Date: 02/02/00 DOCKET NO. 97-09 193 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical & Regional Office Center in Cheyenne, Wyoming THE ISSUE Entitlement to an evaluation in excess of 50 percent for residuals of a right total hip replacement, due to acetabular dysplasia and degenerative joint disease. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant INTRODUCTION The veteran served on active duty from June 1987 to July 1991. The current appeal arose from a December 1996 rating decision of the Department of Veterans Affairs Medical and Regional Office Center (M&ROC) in Cheyenne, Wyoming. The M&ROC denied entitlement to an evaluation in excess of 30 percent for the service-connected disability of the right hip. In September 1996 the M&ROC granted entitlement to an increased evaluation of 50 percent for the disability of the right hip. In March 1998 the Board of Veterans' Appeals (Board) remanded the case to the M&ROC for further development and adjudicative actions. In January and September 1999 the M&ROC affirmed the 50 percent evaluation for the service-connected disability of the right hip. The case has been returned to the Board for further appellate review. FINDING OF FACT Residuals of a right hip total replacement, due to acetabular dysplasia and degenerative joint disease are productive of markedly severe residual weakness, pain and limitation of motion following implantation of prosthesis. CONCLUSION OF LAW The criteria for an increased evaluation of 70 percent for residuals of a right total hip replacement, due to acetabular dysplasia and degenerative joint disease have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5054 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION Factual Background A review of the service medical records discloses that degenerative joint disease of the right hip was diagnosed in October 1990. In April 1991 there was pain and limitation of motion in the right hip. A June 1991 Physical Evaluation Board found the veteran had degenerative joint disease of the right hip probably due to acetabular dysplasia. A December 1991 VA orthopedic examination report concluded in a diagnosis of degenerative disease of the right hip with pain and limitation of motion secondary to acetabular dysplasia. The M&ROC granted entitlement to service connection for acetabular dysplasia and degenerative joint disease of the right hip with assignment of a 10 percent evaluation when it issued a rating decision in February 1992. The appellant was hospitalized by VA during October and November 1994 at which time he underwent a right uncemented total hip arthroplasty. VA conducted an orthopedic examination of the veteran in January 1996. He related that he had last been examined by VA in October 1995. Since that time he had been improving, but still had pain. He had been doing exercises for rehabilitation, and was released from physical therapy. On examination the veteran reported that his right hip bothered him daily. The pain was worse with long drives and it was better when he moved around. He continued to take Motrin at a dose of 800 milligrams orally three times daily as needed for pain. He related that recent radiographs showed that his prosthesis had not fully fused with the bone; however, this was to be expected. On examination the veteran had a 20.0 centimeter scar over the right buttock and upper thigh. The scar was not tender to palpation. There was some deep tissue tenderness, however. He was able to abduct 12 degrees, extend 10 degrees, and flex 95 degrees comfortably. The assessment was status post hip prosthesis which was healing well as expected. A radiographic study disclosed a total hip prosthesis in place. There was no evidence of lucency surrounding the prosthesis and no evidence of fracture or displacement. The radiologic impression was no evidence of any complication. On file are VA outpatient treatment reports dated during the mide-1990's including references to clinical evaluations of the veteran for right hip symptomatology. Included in these records is an August 1996 entry showing right hip flexion to 90 degrees, extension to 0 degrees, internal rotation to 5 degrees, and external rotation to 60 degrees. The Thomas test was noted as negative for flexion contracture. X-ray study was noted to show good bony contrast to entrance shaft of prosthesis, no subluxation, and acetabulum with good bony ingrowth. The clinical assessment was status post right total hip replacement, stable. The veteran presented testimony before a hearing officer at the M&ROC in April 1997. He testified that he still experienced many of the same symptoms he had prior to his surgery. He described limitation of motion, ongoing pain, sleep disturbance from pain, and restrictions in his ability to lift. He stated that he was never comfortable and his medications made his pain tolerable. His lifestyle was said to have been drastically changed since his surgery. He was no longer able to back pack or do manual labor. He tended to avoid stairs. He was currently employed as a counseling assistant. This was described as mostly sedentary in nature. It was not the type of work he was trained for or enjoyed doing. He tried to avoid using a cane because of the image it presented. An April 1997 letter from the veteran's wife shows her knowledge and observations of the veteran's right hip symptomatology. She reported that the veteran was constantly in pain and had to curtail most physical activity. VA conducted an orthopedic examination of the veteran in November 1997. He complained mainly of groin pain and incisional pain that increased with sitting and activity. A July 1997 bone scan was reported as normal. On examination the veteran was in no acute distress. On gait he demonstrated an adducted lurch. Right hip internal rotation was 0 degrees. External rotation was to 40 degrees. Hip flexion was to 60 degrees. Hip abduction was to 45 degrees. Hip adduction was to 15 degrees. Straight leg raise was to 60 degrees with further flexion with knee bent to 90 degrees. There was pain to deep palpation over the femoral head and greater trochanter. X-rays did not show any significant signs of loosening. There was some increased density in the bone joint just proximal to the distal end of the femoral component. The clinical assessment shows the veteran was noted to have constant right hip pain. The causes of pain had to be ruled out, including infection and loosening. Additional diagnostic studies were to be scheduled. A November 1997 bone scan was negative for evidence of loosening or infection. In January 1998 the veteran underwent aspiration of a right total hip arthroplasty, resulting in 2 cubic centimeters of straw-colored fluid. This was sent to the laboratory for gram-stain culture and fluid analysis. VA conducted an orthopedic examination of the veteran in April 1998. He experienced temporary relief after his previous replacement, but had been experiencing a worsening pain especially with activity. The pain was in the groin and buttock, and radiated down to the medial shin. On examination was seen a posterior type incision. Flexion was to 90 degrees. Inward and outward rotation was to 30 degrees. Abduction was to 30 degrees. He had pain at the extremes of these motions in the groin. There were no significant skin changes. He had active dorsi- and plantar flexion of the ankle. X-rays showed a prosthesis the examiner was not familiar with, but it looked like an uncommented one with a cuff around the distal part. It looked to be in good position. The veteran looked to be of equal leg length. He had nice anteversion both to the stem and the cup. The opening angle also looked to be good. There were no signs of loosening. There was minimal pedestal formation at the distal tip of the prosthesis. The examiner noted he saw no evidence of stress fracture. The examiner noted that all work-up for infection had been negative, including his sedimentation rate, hip aspiration and bone scan. Additional diagnostic studies are on file and are referred to in the examination report below. An official independent orthopedic examination for VA compensation purposes was conducted in July 1998. The examiner recited the veteran's clinical history and reported that he had been in a motor vehicle accident in July 1994. One physician felt that his hip pain had been exacerbated by the accident. Ultimately he underwent a total hip replacement in October 1994. He did well for three to four months but then started developing increasing soreness. He subsequently had been seen by VA several times and undergone multiple diagnostic studies all of which had been reported as normal. He had previously worked in oil field service, but was no longer able to do this because of significant pain in his hip. Currently he worked as an office manager. Pertinent clinical findings obtained on examination disclosed the veteran was somewhat uncomfortable walking about the room. He was able to walk on both heels and toes, but with difficulty. He had difficulty getting on to the examination table as well. He had trouble forward bending and this was restricted due to his hip precautions, and he performed this to only 45 degrees. He had a well healed incision over the posterior aspect of the hip which was nontender to palpation. Motor strength appeared intact throughout and deep tendon reflexes were 2+ and symmetric. There was no atrophy of the musculature of the thigh or calf. Right hip abduction was to 10 degrees and adduction to 5 degrees. Flexion was to 90 degrees. Extension was to 0 degrees. Internal rotation was to 10 degrees. External rotation was to 35 degrees. These motions were reached with pain at the extremes of these movements. There were no apparent leg length discrepancies. Trendelenburg test on the right was positive showing weakness of the abductor muscles of the hip. X-rays taken in July 1998 showed the total hip arthroplasty which appeared stable. There was no obvious loosening of the hip. The clinical assessment was status post right total hip arthroplasty for, what sounded like, apparent avascular necrosis of an idiopathic etiology. The examiner noted that the veteran did have significant limitations. Given the fact that he had the total hip arthroplasty in place, this would certainly limit him even if the arthroplasty were functioning 100 percent. His service- connected hip disability appeared to involve the joint structure and not the muscles and nerves. As to whether he became weakened and had excess fatigability and incoordination, he certainly did. There was evidence for weakness in that he had a positive Trendelenburg, and being on his hips made him painful. As to whether the veteran could perform average employment in a civil occupation, it was apparent that he is currently doing this as an office manager. However, he could not perform the activities in the past in the oil field service. This would require too much labor. He was currently limited to a 50 pound work restriction and the examiner felt that this was at least reasonable. If not, he should even have this restricted somewhat more. This would classify him into a medium work capacity, or possibly a light work capacity. As to whether his subjective complaints were manifested by objective findings, that is motion of his hip causing pain, etc., it was apparent that he was very compliant with the examination. The examiner noted he did not find any evidence for symptomatic implication and felt that the pain the veteran was experiencing was real. However, multiple tests had been normal, and the examiner had no etiology for his pain, that is, he did not know of an obvious solution for the hip pain. Criteria In evaluating the severity of a particular disability, it is essential to consider its history. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. §§ 4.1, 4.2 (1999). However, where 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. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991). Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (1999). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher the 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. Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents 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. 38 C.F.R. § 3.321(b)(1) (1999). 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, a description of the effects of the disability upon the person's ordinary activity. 38 C.F.R. § 4.10 (1999). The provisions of 38 C.F.R. § 4.40 state that the disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination on which ratings are based adequately portrays the anatomical damage, and the functional loss with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40 (1999). The provisions of 38 C.F.R. § 4.45 state that when evaluating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. 38 C.F.R. § 4.45 (1999). With any form of arthritis, painful motion is an important factor of disability. The intent of the Rating Schedule is to recognize painful motion with joints or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. The United States Court of Appeals for Veterans Claims (Court) held in Hicks v. Brown, 8 Vet. App. 417 (1995), that once degenerative arthritis is established by x-ray evidence, there are three circumstances under which compensation may be available for service-connected degenerative changes: (1) Where limitation of motion of a joint or joints is objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion, and that limitation of motion meets the criteria in the Diagnostic Code or Codes applicable to the joint or joints involved, the corresponding rating under the code or codes will be assigned; (2) Where the objectively confirmed limitation of motion is not of a sufficient degree to warrant a compensable rating under the Code or Codes applicable to the joint or joints involved, a rating of 10 percent will be applied for each major joint or group of minor joints affected, "to be combined, not added"; and (3) Where there is no limitation of motion, a rating of 10 percent or 20 percent, depending upon the degree of incapacity, may still be assigned if there is x-ray evidence of the involvement of 2 or more major joints or 2 or more minor joint groups. In addition, Diagnostic Code 5003 (5010) is to be rated in conjunction with 38 C.F.R. § 4.59, and it is contemplated by a separate regulation, 38 C.F.R. § 4.40, which relates to pain in the musculoskeletal system. Finally, the Court noted that "Diagnostic Code 5003 and 38 C.F.R. § 4.59 deem painful motion of a major joint or groups caused by degenerative arthritis that is established by x-ray evidence to be limited motion even though a range of motion may be possible beyond the point when pain sets in. Hicks v. Brown, 8 Vet. App. 417 (1995). The Court has held that the Diagnostic Codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45, 4.59. Johnson v. Brown, 9 Vet. App. 7 (1997); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). A 100 percent evaluation may be assigned for hip replacement (prosthesis), with prosthetic replacement of the head of the femur or of the acetabulum, for one year following implantation of prosthesis. A 90 percent evaluation may be assigned following implantation of prosthesis with painful motion or weakness such as to require the use of crutches. A 70 percent evaluation may be assigned for markedly severe residual weakness, pain or limitation of motion following implantation of prosthesis. A 50 percent evaluation may be assigned for moderately severe residuals of weakness, pain or limitation of motion. A minimum 30 percent evaluation may be assigned. 38 C.F.R. § 4.71a; Diagnostic Code 5054. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14 (1999). The Court has held that a claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. The Court has acknowledged, however, that when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different Diagnostic Codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). A 10 percent evaluation may be assigned for a scar that is poorly nourished with repeated ulceration. 38 C.F.R. § 4.118; Diagnostic Code 7803 (1999). A 10 percent evaluation may be assigned for a scar that is tender and painful on objective demonstration. 38 C.F.R. § 4.118; Diagnostic Code 7804 (1999). Other scars may be rated on the basis of limitation on function of the part affected. 38 C.F.R. § 4.118; Diagnostic Code 7805. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3 (1999). Analysis Initially, the Board finds that the veteran's claim of entitlement to an evaluation in excess of 50 percent for his service-connected disability of the right hip is well grounded within the meaning of 38 U.S.C.A. § 5107(a); that is, a plausible claim has been presented. Murphy v. Derwinski, 1 Vet. App. 78 (1990). In general, an allegation of increased disability is sufficient to establish a well grounded claim seeking an increased rating. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). The veteran's assertions concerning the severity of his right hip disability (that are within the competence of a lay party to report) are sufficient to conclude that his claim for an evaluation in excess of 50 percent for that disability is well grounded. King v. Brown, 5 Vet. App. 19 (1993). The Board is also satisfied that, as a result of the March 1998 remand of the case to the M&ROC for further development, all relevant facts have been properly developed to their full extent and that VA has met its duty to assist. Godwin v. Derwinski, 1 Vet. App. 419 (1991); White v. Derwinski, 1 Vet. App. 519 (1991). The M&ROC has assigned a 50 percent evaluation for the appellant's right hip disability under Diagnostic Code 5054 of the VA Schedule for Rating Disabilities. In other words, the current 50 percent evaluation contemplates moderately severe residual weakness, pain or limitation of motion following implantation of a prosthesis. The next higher evaluation of 70 percent requires markedly severe residual weakness, pain or limitation of motion following implantation of prosthesis. 38 C.F.R. § 4.71a; Diagnostic Code 5054. The Board's review of the evidentiary record discloses that the veteran underwent a total right hip replacement to resolve residual pain and debility following inservice injury. More specifically, the veteran underwent a total right hip arthroplasty in late 1994, and was assigned a 100 percent evaluation for one year following the surgery in accordance with the criteria under Diagnostic Code 5054. The M&ROC has determined that residual disability in the right hip is manifested by moderately severe weakness, pain, and limitation of motion. The veteran is of the opinion that the current 50 percent evaluation does not adequately compensate him for the nature and extent of the demonstrated impairment he must contend with in his right hip. The Board is of the opinion that the evidentiary record favors the veteran. In this regard, the Board notes that the veteran has been afforded considerable outpatient treatment and numerous orthopedic examinations to assess residual right hip disablement. The evidentiary record in its entirely shows that he has been in chronic, unrelenting pain, with the exception of a short period of time following his arthroplasty. His pre-surgical status has returned to the extent that he experiences chronic pain, limitation of motion, and interference in his daily activities due to his right hip disability. Comprehensive diagnostic studies have for the most part been normal and have not objectively demonstrated any clear medical reason for the veteran's ongoing intractable symptomatology. The Board therefore had the veteran specifically examined to ascertain functional impairment of the right hip pursuant to the criteria under 38 C.F.R. §§ 4.40, 4.45, 4.59. The July 1998 official orthopedic examination for VA compensation purposes was very expository in this regard. The examiner specifically found that the veteran becomes weakened, has excess fatigability and incoordination. The examiner also pointed out that the veteran's chronic pain was real albeit no obvious etiology could be provided in this regard. The Board notes in passing that the evidentiary record is full of a considerable quantity of medical documentation of hip pain subsequent to inservice injury, and returning pain after what was thought would be ameliorative surgery. The record is devoid of any other etiology to account for the veteran's ongoing chronic pain. Accordingly, the Board's application of the criteria as to functional loss due to pain, weakness, incoordination, etc., permits the conclusion that the next higher evaluation of 70 percent more properly reflects the veteran's current nature and extent of severity of impairment caused by his right hip disability. In this regard, the Board notes that the next higher evaluation of 70 percent contemplates markedly severe residual weakness, pain and limitation of motion following implantation of prosthesis. This is clearly the veteran's case. The veteran does not require the use of crutches for ambulation and consequently does not meet the criteria for the next higher evaluation of 90 percent. The Board notes that residual scarring from the veteran's previous arthroplasty has been described on more than one occasion as well healed and without tenderness. There has been no evidence of poor nourishment with repeated ulceration, or limitation on function of the anatomical part affected, in this case the hip, not already considered in the current 70 percent evaluation, thereby precluding assignment of a separate evaluation for scarring under Diagnostic Codes 7803, 7804, 7805. As for assignment of a disability evaluation for arthritis, the current 70 percent evaluation is well in excess of the maximum 20 percent evaluation assignable under the diagnostic criteria for degenerative or traumatic arthritis. With respect to this claim, the Board observes that in light of Floyd v. Brown, 9 Vet. App. 88 (1996), the Board does not have jurisdiction to assign an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. The Board, however, is still obligated to seek all issues that are reasonably raised from a liberal reading of documents or testimony of record and to identify all potential theories of entitlement to a benefit under the law or regulations. In Bagwell v. Brown, 9 Vet. App. 337 (1996), the Court clarified that it did not read the regulation as precluding the Board from affirming an M&ROC conclusion that a claim does not meet the criteria for submission pursuant to 38 C.F.R. § 3.321(b)(1), or from reaching such conclusion on its own. In the veteran's case at hand, while the M&ROC did tangentially discuss the veteran's employment situation, it did not provide nor specifically discuss the criteria for assignment of an extraschedular evaluation. The Court has further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the VA Under Secretary for Benefits or the Director of the VA Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Board does not find the veteran's disability picture to have been rendered unusual or exceptional in nature as to warrant referral of his case for consideration of extraschedular evaluation. In this regard, the Board notes that the veteran was hospitalized on only one occasion for the right hip arthroplasty. His medical care, though frequent, has been on an outpatient basis. He has not required frequent inpatient care. Also, while the veteran is no longer able to perform previous occupational oil field duties, he is nonetheless gainfully employed as an office manger. The record is devoid of any marked interference in his current occupation. The Board finds that the granted increased evaluation of 70 percent adequately compensates the veteran for the current nature and extent of severity of his right hip disability. Having reviewed the record with these mandates in mind, the Board finds no basis for further action on this question. ORDER Entitlement to an increased evaluation of 70 percent for residuals of a right total hip replacement, due to acetabular dysplasia and degenerative joint disease is granted, subject to the governing criteria applicable to the payment of monetary benefits. RONALD R. BOSCH Member, Board of Veterans' Appeals