BVA9504743 DOCKET NO. 92-23 472 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to an increased evaluation for a right hip disorder, currently evaluated as 50 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Sandra L. Smith, Associate Counsel INTRODUCTION The veteran had active service from February 1970 to June 1972. This case is before the Board of Veterans Appeals (the Board) on appeal from rating decisions which ultimately granted the veteran a 50 percent evaluation for a right hip disorder, but denied the veteran's claim for a higher rating for the disability. The case was referred to the Regional Office (RO) for further development by the Board in an August 1993 remand. The requested development was accomplished and the rating decision of July 1994 continued the denial of an increased evaluation for a right hip disorder. The case is now ready for appellate review. The Board notes that both the veteran and his representative indicated during the January 1992 personal hearing that the veteran is no longer employable. It is not clear from the record whether the veteran wishes to raise a separate issue of entitlement to a total disability rating based on individual unemployability due to his service-connected disabilities or whether these contentions were just related to his claim for an increased evaluation for his service-connected right hip disorder. If the desire is to file a separate claim for a total rating based on individual unemployability, that matter should be addressed at the RO. CONTENTIONS OF APPELLANT ON APPEAL The veteran and his accredited representative contend that the symptoms of his right hip disorder are of such severity to warrant a higher disability evaluation than the 50 percent rating currently assigned. The veteran asserts that since hip replacement surgery in 1990 he has continued to experience a great deal of pain and limitation of motion; his symptoms are so severe he can not work. The veteran's representative requests that any and all reasonable doubt be resolved in the veteran's favor. 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 preponderance of the evidence is against the claim for an increased evaluation, in excess of 50 percent, for a right hip disorder. FINDINGS OF FACT 1. All relevant available evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran's right hip disability is manifested principally by a well-healed surgical scar, complaints of pain and moderate limitation of motion; there is no alteration of gait or leg length discrepancy. 3. The veteran's right hip disorder disability does not produce an exceptional or unusual disability picture with related factors such as need for frequent hospitalization or marked interference with employment so as to render application of the regular scheduler criteria impractical. CONCLUSION OF LAW The criteria for an evaluation in excess of 50 percent for a right hip disorder have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.40, 4.71a, Codes 5054, 5255 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION A person who submits a claim for benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107. After reviewing the evidence on file we conclude that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, the claim presented is not inherently implausible. Furthermore, we conclude that all facts pertinent to the plausible claim have been developed and that as such, there is no further duty to assist in developing the claim as contemplated by 38 U.S.C.A. § 5107(a). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. An extraschedular evaluation will be assigned if the case presents an unusual or exceptional disability picture with such related factors as marked interference with employment or frequent period of hospitalization such as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). The entire history of the disability will be reviewed. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). Historically, the veteran was involved in an automobile accident while in service and sustained a dislocation of the right hip, inferiorly and anteriorly with a small acetabulum fracture. Following a VA medical examination, the veteran was granted service connection and assigned a 10 percent disability evaluation for subluxation of the right hip and fracture of inferior acetabulum. The rating was assigned under Code 5255. VA medical records, dated from 1975 to 1990, show that the veteran was treated periodically for right hip pain until 1989 when he was seen more frequently for complaints of right hip pain. He was diagnosed with avascular necrosis of the right hip probably secondary to a combination of posterior dislocation of the hip and alcohol abuse. A VA hospital summary report, dated in April 1990, indicates that he was admitted for surgical right hip replacement. A hemi-arthroplasty was performed to the right hip and a bipolar prosthesis was placed. A total hip arthroplasty was not performed because the acetabulum appeared to have good cartilage. However, the femoral head had severe degenerative changes. The veteran was noted to do well postoperatively. X-rays taken 10 days postoperatively revealed satisfactory hemi arthroplasty. There was no evidence of infection. The veteran was discharged with crutches for partial weight bearing. The final diagnosis was degenerative joint disease to right hip secondary to avascular necrosis. A VA hospital summary, dated in early May 1990, shows that the veteran was admitted complaining of fever and right hip pain. The final diagnosis was nonspecific gastroenteritis. It was noted that the veteran repeatedly requested narcotics for right hip pain which was refused. Examination of the right hip area revealed a well-healed scar with no clinical evidence of infection. The veteran was provided anti-inflammatory agents and non-narcotic pain medication but he stated that this was "not enough". However, the treating physician declined to prescribe narcotic pain relief because of the veteran's long history of alcohol dependency. The veteran was scheduled for an orthopedic consultation; however, he left the hospital on an irregular discharge prior to his appointment. A VA hospital summary, dated in late May 1990, shows that the veteran was admitted with complaints of right hip pain and low grade fever. It was noted that the veteran had been ambulating with full weight bearing to the right leg despite instructions to partially weight bear for two months. At admission he was just using a cane. Examination of the right hip revealed no drainage or erythema or edema to the right thigh. The veteran had decreased abductor strength to the right hip and an abductal lurch. Flexion was to 100 degrees and extension was to 0 degrees, with abduction to 60 degrees. Again, there was no clinical evidence of an infection although a full work-up was done to identify fever of unknown origin. He was given crutches and instructed to only partial weight bear for one month further. By rating decision of August 1990, a 100 percent rating was assigned for the postoperative residuals of right hip surgery from April 17, 1990 through May 31, 1991. Effective June 1, 1991, a 30 percent rating was proposed. A subsequent rating action determined that effective June 1, 1991, a 50 percent rating should be assigned. This was assigned under Code 5054, concerning total hip replacements. The question now before the Board is whether a higher rating is warranted on a schedular or extraschedular basis. VA outpatient treatment records, dated from 1990 to 1991, show that the veteran continued to complain of right hip pain throughout 1990. Bone scans in May and November 1990 revealed no evidence of infection or fracture. Examination in December 1990 revealed a well healed incision with good range of motion with no pain. The assessment was hip/thigh pain status post noncemented bipolar arthroplasty. In February 1991, the physician noted that he suspected the veteran's complaints of constant hip pain were "drug seeking." The veteran was afforded a VA examination in April 1991. The examination report noted the veteran complained of a lot of pain in his right hip. Physical examination revealed a well healed, nonadherent, non-raised, surgical scar. No swelling was noted. Right hip flexion was to 95 degrees and abduction to 25 degrees. Straight leg raises were to 40 degrees on the right. Bilateral patellar reflexes were equal. No sensory loss was noted. It was noted that the veteran walked with a cane and was taking prescribed pain medication. The diagnosis was: History of status post right hemi-arthroplasty - bipolar with residual pain and stiffness. The medical examiner noted the veteran walked with a cane and was unable to work. A medical report from a private orthopedic physician, dated in August 1991, indicated that the veteran was seen requesting a "second opinion" as to his right hip disorder. The veteran complained of pain aggravated by activity. The veteran claimed the present pain was worse than prior to the hip surgery. On examination he had a right antalgic Trendelenburg gait. The back flexed well and was nontender. The right hip had a well healed incision. The veteran had good hip motion with 30 degrees internal rotation, 30 degrees external rotation, 80 degrees flexion, full extension, 20 degree abduction, and 30 degrees adduction. Rotary stress was not associated with any significant discomfort. Straight leg raises were negative. Neurovascular status was intact. Leg lengths were pretty much equal. The physician examined an x-ray done elsewhere which revealed excellent bone component interface about the stem of the right hip with nothing to suggest loosening or complication. The bipolar cup had approximately 30 percent subluxation with approximately 1-2 mm of joint space remaining. The diagnostic impression was persistent pain status post uncemented bipolar hip replacement. The physician suggest three possible etiologies for this pain: (1) Possibility that the pain is coming from the cup; (2) Possibility of low grade underlying infection; (3) Thigh pain secondary to the uncemented stem The physician also recommended that further work-up be done to rule out underlying infection, and that the veteran receive physical therapy treatments. It was the doctor's opinion that if tests for infection were negative and the pain continued, the veteran should consider further surgery for a total hip replacement. VA outpatient treatment records, dated from 1991 to 1993, show that the veteran continued to be seen in the orthopedic clinic for follow-up treatment for chronic right hip pain. He was provided physical therapy treatment and a TENS unit. A physical therapy note, dated in December 1991, noted that the veteran's gait was almost normal. X-rays in January 1992 were noted to be unremarkable. There was no evidence of loosening or other abnormality. A written statement received from the veteran in January 1992, that he continued to experience a lot of pain and the mobility of his right hip or leg was limited. He felt very insecure with his right leg, consequently he placed a lot of his body weight on his left leg. He had difficulty sitting or standing for a prolonged period. The veteran also testified at a personal hearing held in January 1992 that he continued to have severe pain in his right hip after the hip replacement surgery. The hip replacement did give him a bit more motion in his hip. Carrying weight in excess of 20 pounds bothered him. Climbing stairs was rough. He could probably walk three thousand yards. At times he had excruciating pain in his hip. He used a cane when it felt relatively good but used crutches around the house when it was really bad. He was taking prescribed anti-inflammatory and pain medication as well as an antidepressant. X-rays and bone scans from the spring of 1993 did not clearly reveal evidence of loosening. The x-ray indicated that the prosthesis was in place without loosening. There was some increased "activity" on bone scan, but not enough to indicate loosening. There was no evidence of loosening in June 1993. In October 1993 the veteran was afforded another VA examination. The medical examination report noted the veteran complained of pain in the right lateral proximal thigh approximately five of every 30 days. The pain was worsened by weight-bearing. Physical examination revealed right hip flexion to 115 degrees, normal extension, and abduction to 40 degrees. There were no leg length discrepancies and gait was unremarkable. Straight leg raising was negative. There were no postural deformities. The diagnosis was status post right hip hemi-arthroplasty with secondary post traumatic arthritis. Chronic pain was also noted to be present. VA regulations provide that replacement of either hip joint with a prosthesis warrants a 100 percent evaluation for a 1-year period following implantation of the prosthesis. At the conclusion of this period, a 90 percent evaluation is warranted if there is painful motion or weakness requiring the use of crutches. The proper evaluation is 70 percent if there is markedly severe residual weakness, pain, or limitation of motion. A 50 percent evaluation is warranted with moderately severe residual weakness, pain, or limitation of motion. The minimum evaluation is 30 percent. 38 C.F.R. § 4.71a, Code 5054. Impairment of the femur will be evaluated 60 percent disabling where there is a fracture of the shaft or anatomical neck, with nonunion, without loose motion, weight-bearing preserved with the aid of a brace. A 60 percent rating will also be assigned where there is fracture of the surgical neck with false joint. A 30 percent rating is assigned where there is malunion with marked knee or hip disability. 38 C.F.R. Part 4, Code 5255. In addition, the regulations state that, in evaluating the degree of disability, consideration must be given to the clinical findings of functional loss, as well as functional loss due to pain. Functional loss due to pain may be found if supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The Board finds, based on the evidence of record and the above legal criteria, that an increased evaluation, in excess of 50 percent, is not warranted for a right hip disorder. Recorded clinical findings since the surgery in 1990 showed consistent improvement in range of motion of the right hip. The most recent VA examination, in October 1993, showed no more than moderate loss of limitation of motion in the right hip. There was also no evidence of infection and the veteran's gait was unremarkable. There is no leg length discrepancy, and there is no evidence of loosening of the prosthesis. It is not demonstrated that he requires the use of crutches as aids in ambulation. Nonetheless, the Board notes that the veteran has continued to complain of pain. Thus, taking into consideration the veteran's complaints of pain, the Board finds that a 50 percent evaluation for moderately severe residuals of the right hip replacement is warranted. However, the clinical evidence of record does not warrant an evaluation in excess of 50 percent. Pain alone, in the absence of other signs and symptoms of loosening will not warrant a higher evaluation. In reaching this decision, consideration has been given 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 further finds that the evidence does not present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular criteria, so as to warrant the assignment of an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1). There is no evidence of frequent periods of hospitalization or marked interference with employment due to this disorder such as to warrant an extraschedular rating. The Board did consider the veteran's testimony as to his unemployability. To the extent he desires to file a claim for a total rating, that should be done at the RO. For the reasons discussed above, it is not shown that the hip disorder warrants a 100 percent rating on a schedular or extraschedular basis. ORDER An increased evaluation for a right hip disorder is denied. MICHAEL D. LYON 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.