Citation Nr: 0000763 Decision Date: 01/11/00 Archive Date: 01/27/00 DOCKET NO. 94-45 442 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an increased rating for traumatic myositis of the left hip, rated 10 percent disabling. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James J. Dunphy, Counsel INTRODUCTION The veteran served on active duty from December 1943 to August 1945. In a May 1998 decision, the Board of Veterans' Appeals (Board) remanded the case to the Department of Veterans Affairs (VA) Regional Office (RO) for the veteran to be scheduled for a video conference hearing. This hearing took place in October 1998. In a January 1999 decision, the Board found that the veteran had not presented new and material evidence to reopen claims of service connection for hypertension, a low back disorder, and blisters of the tongue. The Board found that a 10 percent rating was appropriate for shell fragment wounds of the upper lip, tongue and pharynx. The issue of an increased rating for traumatic myositis of the left hip was remanded for further action. This issue is once more properly before the Board for action. FINDING OF FACT The veteran retains at least 90 degrees of flexion and more than 10 degrees of abduction of the left hip, and the myositis does not result in more than minimal functional impairment. CONCLUSION OF LAW The criteria for an increased rating for myositis of the left hip are not met. 38 U.S.C.A. § 1155, 5107 (West 1991); 38 C.F.R. § 4.71, Part 4, Codes 5021, 5251, 5252 and 5253 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION Factual Background The veteran sustained an injury to the left hip in July 1944 when he was struck in the head with shrapnel and fell from a truck. Follow-up treatment was required. On VA examination in August 1949, shortly after discharge from service, range of motion of the hip was normal. Reflexes were equal and negative. The diagnoses included history of chronic myositis, anterior left hip. Of record are reports of outpatient treatment afforded the veteran by the VA. In an April 1993 note, he reported increasing pain in the left hip. Flexion was decreased to 100 degrees, with pain. He reported left hip pain when he was seen in February 1995, but retained good range of motion. He reported chronic left hip pain in July 1996, and walked with a mild limp. Decreased range of motion was present in the left hip when he was seen in February 1997. The veteran presented testimony at a hearing before an RO hearing officer in January 1995. He reported swelling and inflammation around the left hip. He stated he was taking medication, but was not on therapy. (Transcript, hereinafter T-4). The veteran underwent a joints compensation examination performed by the VA in May 1995. He gave a history of the injury in service. He reported deep pain, from front to back, that radiated down the left thigh into the lower leg. There were approximately half a dozen such attacks a year. Pain was increased by walking, and by getting up and down out of chairs. On examination, he walked with somewhat of a limp, favoring the left hip. Adduction was possible to 20 degrees, and he was quite painful over the greater trochanteric region. Flexion was possible to 90 degrees bilaterally, with pain on the left. Abduction was to 30 degrees bilaterally, with internal and external rotation to 30 degrees on the right and 25 degrees on the left. Circulation and sensation were normal on examination. Lasegue's sign and Patrick's test was negative. Sensation was equal. There was point tenderness over the greater trochanter and palpation of the fascia surrounding this area was extremely painful. Pressure on the greater trochanteric bursa and palpation of the gluteus medius muscle reproduces the pain. X-ray films of the pelvis showed no evidence of osteoarthritis or bony pathology of the left hip or pelvis. The diagnoses include traumatic left greater trochanteric bursitis. Of record are reports of treatment afforded the veteran by James C. Martin, M.D., and Pavan Grover, M.D., with reference to scars of the upper lip. No treatment for any form of hip disorder was reported. The veteran provided testimony at a video hearing before the undersigned Board member in October 1998. He indicated that he had last been treated for a hip disorder a number of months prior to the hearing. (T-16, 17). The veteran was examined for compensation purposes by the VA in May 1999. At that time, he reported that he took anti- inflammatory medications on an as needed basis, but did not utilize crutches, braces or a cane. He had only been treated with medications. He also reported pain, increasing with increased activities. On examination, he had 30 degrees of internal rotation and 60 degrees of external rotation, with pain at the extremes. He had 30 degrees of abduction with pain, with normal flexion and extension. Tenderness to palpation was most notable over the posterior aspect of the greater trochanter, with exquisite pain over the posterior aspect of the ischial tuberosity. Neurological examination was within normal limits. X-ray evaluation showed not evidence of focal abnormalities or asymmetric degenerative change when compared to the right hip. The impression was myositis, left hip, posterior hamstrings and ischial tuberosity. The examiner concluded that the functional impairment was minimal given his occupation and current retired status. The disorders did not cause weakened motion, excess fatigability, or incoordination. No effect on the veteran's ability to perform average employment was found. Analysis Initially, the Board finds that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). See Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). By this finding, the Board means that the veteran has presented a claim which is not implausible when the contentions and the evidence of record are viewed in the light most favorable to the claim. The Board is also satisfied that all relevant facts have been properly and sufficiently developed. Under the laws administered by the VA, 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. § 1155 (West 1991); 38 C.F.R. Part 4 (1999). Separate diagnostic codes identify the various disabilities. Where entitlement to compensation has already been established and an increase in the disability evaluation is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Myositis is rated based on limitation of motion of the joint involved, the hip. 38 C.F.R. § 4.71a, Part 4, Code 5021 (1999). The current 10 percent rating is the maximum evaluation based on limitation of extension of the hip. 38 C.F.R. § 4.71a, Part 4, Code 5251 (1999). A 10 percent rating is warranted when flexion is limited to 45 degrees, or abduction is limited so that the veteran cannot cross his legs. For a 20 percent rating to be appropriate, flexion must be limited to 30 degrees, or abduction be limited so that motion is lost beyond 10 degrees. 38 C.F.R. § 4.71a, Part 4, Codes 5252 and 5253 (1999). On repeated examinations, to veteran's flexion was not so limited as to support a rating in excess of 10 percent. On examination in May 1995, flexion was possible to 90, with flexion reported as normal on the May 1999 examination. Flexion of the hip is considered normal at 125 degrees. 38 C.F.R. § 4.71, Plate II (1999). Moreover, abduction was to 30 degrees on each examination, which again does not support a rating in excess of 10 percent. Accordingly, based on the veteran's range of motion, an increased rating is not appropriate. The U.S. Court of Appeals for Veterans Claims (Court) has further has held that when a Diagnostic Code provides for compensation based solely upon limitation of motion, that the provisions of 38 C.F.R. §§ 4.40 and 4.45 (1999) must also be considered, and that examinations upon which the rating decisions are based must adequately portray the extent of functional loss due to pain "on use or due to flare-ups." DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). The veteran's myositis is rated under the provisions of Diagnostic Code 5021, which turn on limitation of motion. Accordingly, the Board finds that the Court's holding in DeLuca applies. The provisions of 38 C.F.R. § 4.40 hold that 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 and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all 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 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. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. relate to functional loss. The provisions of 38 C.F.R. § 4.45 require consideration of such factors with regard to the joints as less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); excess fatigability; incoordination, impaired ability to execute skilled movements smoothly or pain on movement, swelling, deformity or atrophy of disuse. In making determinations with regard to the application of 38 C.F.R. §§ 4.40 and 4.45, the Board is bound by the holding in VAOGCPREC 9-98 (August 14, 1998), which held that these provisions must be considered in light of the relevant Diagnostic Code governing limitation of motion. To establish a separate rating under these provisions would be tantamount to an extraschedular rating under 38 C.F.R. § 3.321, an outcome not envisioned by the provisions of 38 C.F.R. §§ 4.40 and 4.45 (1999). To determine if an increased rating on this basis was appropriate, the veteran's case was remanded to the RO in January 1999 for an examination to make such findings. A review of the findings on examination in May 1999 do not show that the myositis warrants an increased rating under these provisions. The examiner specifically concluded that functional impairment resultant from the myositis was minimal. Moreover, the examiner found that there was no weakened motion, excess fatigability, or incoordination. While pain was present on motion, the overall findings do not support an increased rating. In reaching the above decision, the Board has given due consideration to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they were raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board finds that these provisions do not support the grant of an increased rating for the disorder at question. ORDER An increased rating for myositis of the left hip is denied. V. L. Jordan Member, Board of Veterans' Appeals