BVA9500175 DOCKET NO. 93-09 201 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUES Entitlement to a compensable evaluation for trochanteric tendonitis of the right hip. Entitlement to service connection for a pelvic condition. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J.R. King, Associate Counsel INTRODUCTION The appellant had verified active military service from January 3, 1991, to July 6, 1991. The record indicates that he also served on active duty from July 7, 1986, to December 11, 1986. This matter is before the Board of Veterans Appeals (Board) on appeal from a May 1991 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in San Juan, Puerto Rico. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that the right hip disability affects his work and his service in the National Guard. He maintains that the disability is productive of a great deal of pain and that he is unable to drive or to engage in activities that require him to assume a squatting position. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the weight of the evidence is in favor of the appellant's claim of entitlement to a compensable evaluation for trochanteric tendonitis of the right hip. It is also the decision of the Board that the claim for service connection for a pelvic condition is not well-grounded. FINDINGS OF FACT 1. All relevant evidence necessary for the equitable disposition of this case has been received by the RO. 2. The appellant's trochanteric tendonitis of the right hip is manifested by pain. 3. There is no evidence tending to show the presence of a pelvic disability. CONCLUSIONS OF LAW 1. The schedular criteria for a compensable evaluation for trochanteric tendonitis of the right hip have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.59, 4.71, Diagnostic Code 5251 (1993). 2. The appellant has not submitted evidence of a well-grounded claim for service connection for a pelvic condition. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION Entitlement to a Compensable Evaluation for Trochanteric Tendonitis of the Right Hip. Initially, the Board has found that the appellant's claim of entitlement to a compensable rating for trochanteric tendonitis of the right hip is well-grounded in that it is plausible in accordance with 38 U.S.C.A. § 5107 (West 1991). Furthermore, the Board is satisfied that all relevant evidence is of record with regard to this claim and the statutory duty to assist the appellant in the development of evidence pertinent to his claim has been met. 38 U.S.C.A. § 5107 (West 1991). Disability evaluations are determined by the application of a schedular rating which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 1991). The higher of two evaluations will be assigned if the disability picture more closely approximates the criteria for that rating. Otherwise the lower rating is assigned. 38 C.F.R. § 4.7 (1993). Disability ratings represent the average impairment in earning capacity resulting from diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. In the evaluation of service-connected disabilities the entire recorded history, including the medical and industrial history, is considered so that a report of rating examination, and the evidence as a whole, may yield a current rating which accurately reflects all elements of disability, including the effects on ordinary activity. 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.41 (1993). Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body. In this respect, functional loss may be due to pain, provided it is supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40 (1993). Weakness is as important as limitation of motion and a finding of dysfunction due to pain must be supported by adequate pathology and evidenced by visible behavior of the claimant. 38 C.F.R. § 4.40; see also Hatlestad v. Derwinski, 1 Vet.App. 164, 167 (1991). The provisions of 38 C.F.R. § 4.71, Diagnostic Code 5251 (1993), provides a 10 percent rating for limitation of extension of either thigh to 5 degrees. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (1993). The evidence of record includes the appellant's service medical records, which reflect that the appellant was treated on several occasions in January and March 1991 for pain of the right hip. VA outpatient treatment records reflect that the veteran was seen on several occasions between October 1991 and March 1992 for complaints of low back and right hip pain. X-rays of the right hip taken in October 1991 were interpreted as essentially negative. The appellant underwent a VA examination in March 1992. He reported that he experienced the onset of right hip pain while undergoing training at Camp Santiago in preparation for his service in Saudi Arabia during Operation Desert Storm. He stated that he woke up one day with severe pain of the right hip. He stated that he was treated in sick call, with some improvement in symptoms, but without total remission of pain. The appellant stated that the performance of his military duties required strenuous physical exertion, such as unloading trucks and setting up tents, and that he often felt pain in his right hip. The examiner noted that there was no limitation of motion of the right hip in any plane and that X-rays of the right hip were negative. The examiner found that the veteran was able to squat, but with moderate difficulty. Trochanteric tendinitis of the right hip was diagnosed. The appellant appeared at a hearing at the RO in August 1992. At this time, he indicated that he experienced discomfort and pain as a result of his right hip condition. The appellant's testimony also included the assertion that he was unable to assume a squatting position for long periods and that he was unable to drive. He stated that the area was tender on pressure and that he was unable to twist at the trunk without pain. He asserted that pain of the right hip was the source of difficulty in performing duties associated with his private employment as well as his job with the National Guard. The competent clinical data and the testimony presented in this case credibly document the presence of right hip pain. As shown on the most recent VA examination, the appellant's disability includes limitations in the functional capacity of the right hip. Although no limitation of motion is shown, the VA examiner noted that the appellant had a moderate degree of difficulty assuming a squatting position. The veteran has testified that pain in his right hip limits his ability to function, including limiting his ability to drive and to perform his work as a civilian as well as his duties with the National Guard. Inasmuch as disability ratings represent the average impairment in earning capacity resulting from diseases and injuries in civil occupations, and the appellant has testified to the difficulties posed by his right hip disability in the performance of job duties, it is found that the doctrine of reasonable doubt is for application in this matter. As noted above, 38 C.F.R. § 4.40 recognizes that "functional loss" may be caused by pain "on use" and that functional loss caused by pain should be compensated. The Court has held that functional loss due to pain is to be rated at the same level as the functional loss where motion is impeded. See Schafrath v. Derwinski, 1 Vet.App. 589, 592 (1991) and Lichtenfels v. Derwinski, 1 Vet.App. 484, 487-88 (1991). As such, it is found that the appellant's disability more nearly approximates the level of disability contemplated by a 10 percent evaluation. 38 C.F.R. § 4.7 (1993). Entitlement to Service Connection for a Pelvic Condition. The United States Court of Veterans Appeals (Court) has held that where the determinative issue involves medical diagnosis, there must be competent medical evidence supporting a claim to make it "plausible" and thus well-grounded. If a claim is not well grounded, the Board does not have jurisdiction to adjudicate that claim. Id. Indeed, a purported adjudication of a claim which is not well grounded is a nullity in contemplation of law. See Grivois v. Brown, 5 Vet.App. 91 (1993). In this regard, the Board finds that the claim of entitlement to service connection for a pelvic condition is not well grounded. Service connection connotes many factors, but basically it means that the facts, as shown by the evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(a) (1993). Thus, the threshold question as to this issue is whether the appellant has presented evidence of a pelvic disability. If he has not, his claim is not well grounded. Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992). If his claim is not well-grounded, his appeal must fail and there is no duty to assist him further in the development of his claim. 38 U.S.C.A. § 5107(a) (West 1991). The record contains no evidence tending to show the existence of a pelvic disability. No pelvic disability was identified on VA examination for disability evaluation in March 1992. The appellant presented no testimony concerning this claimed disorder when he testified at a hearing on appeal in August 1992. As there is no evidence tending to show the existence of the claimed pelvic condition, the claim is not plausible and, therefore, not well grounded. By dismissing the appellant's claim, he is not burdened with a prior decision on the merits. Therefore, should he be able to present a well-grounded claim in the future, he will not face the higher hurdle of presenting new and material evidence to reopen his claim. McGinnis v. Brown, 4 Vet.App. 239 (1993). ORDER The claim of entitlement to an increased evaluation for trochanteric tendonitis of the right hip is granted subject to all regulatory authority governing the payment of monetary benefits. The claim of entitlement to service connection for a pelvic condition is dismissed. GARY L. GICK 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 deter- mination. 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, pro- vided 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.