Citation Nr: 0003066 Decision Date: 02/08/00 Archive Date: 02/15/00 DOCKET NO. 96-03 293 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an increased evaluation for a left hip disability, to include entitlement to a separate evaluation for arthritis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The veteran served on active duty from October 1992 to February 1993. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Initially, this claim included the issue listed on the first page of this decision and entitlement to secondary service connection for left knee disability and a low back disability. In October 1997, the Board denied the secondary service connection issues and remanded the remaining issue to the RO for additional development. The case has been returned to the Board and is ready for further review. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable resolution of the veteran's appeal has been obtained by the RO. 2. A left hip disability is manifested by a limp and increased pain on use: there is no malunion, only slight limitation of thigh motion (internal rotation to 10 degrees, external rotation to 30 degrees, motion from 180 degrees of extension to 50 degrees of flexion), and no atrophy or weakness. There is no more than moderate left lower extremity disability. 3. The veteran's left hip disability is manifested by X-ray evidence of arthritis, limited motion, and complaints of pain. CONCLUSIONS OF LAW 1. A rating in excess of 20 percent for a left hip disability is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.71a, and Part 4, Codes 5252, 5255 (1999). 2. The criteria for a separate 10 percent rating for a left hip disability are met. 38 U.S.C.A. § 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.7, 4.40, 4.45, 4.59, and 4.71a, Diagnostic Code 5003, 5252, 5255 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board finds that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). That is, the Board finds that he has presented a claim that is plausible and capable of substantiation. The Board is also satisfied that all relevant evidence regarding the claim has been obtained, and that no further assistance to the veteran is required to comply with 38 U.S.C.A. § 5107(a) since all relevant development has been conducted. In accordance with 38 C.F.R. § § 4.1, 4.2 (1999) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the veteran's service medical records and all other evidence of record pertaining to the history of the service- connected disability at issue here. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4 (1999). The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § § 4.1, 4.10 (1999). Separate diagnostic codes identify the various disabilities. If 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). The United States Court of Appeals for Veterans Claims (hereinafter, "the Court") has held that, in a claim of disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999). Therefore, all of the evidence following the grant of service connection (not just the evidence showing the present level of disability) must be considered in evaluating the veteran's claim. When a disability not specifically provided for in the rating schedule is encountered, it will be rated under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (1999). The Court has held that functional loss, supported by adequate pathology and evidenced by visible behavior of the veteran undertaking the motion, is recognized as resulting in disability. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.10, 4.40, 4.45. The Court also 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 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 assigned 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 is to be read 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." Service connection was granted for a left hip disability in May 1993, and a 10 percent evaluation was assigned under Diagnostic Code 5255. This was based on service medical records which showed that the veteran's preexisting disability (considered to be 0% disabling at enlistment) was aggravated during service. VA records showed on examination in April 1993 that the veteran had flexion to 60 degrees and extension to 45 degrees. Pain was noted over the posterior femoral head on the left side. On VA examination in January 1995, examination showed no swelling, or deformity. There was crepitation and pain with abduction to 45 degrees, and adduction was noted to be normal at 0 degrees. Flexion was painful at 125 degrees and extension was to 0 degrees. There was pain with internal and external rotation with motion to 20 degrees, bilaterally. Pain with palpation was also noted. X-rays were noted to show degenerative joint disease of the left hip. In December 1995, the veteran appeared at a hearing at the RO and testified in support of his claim. He stated that he was limited in being able to play with his children, walk and stand for any length of time. He reported having pain and that he walks with a limp. The veteran testified that he was currently employed as a harvester for Campbell's Food Company and that on one occasion his hip and back locked while he was working. He also testified that he was limited in being able to participate in sports. A complete transcript is of record. On VA examination in May 1997, it was noted that the veteran had not worked since May 1996, when his pain apparently prevented him from continued labor duties. Examination showed a normal gait with left hip flexion to 45 degrees; extension to 0 degrees; abduction to 40 degrees; adduction to 20 degrees; internal rotation to 10 degrees; and external rotation to 10 degrees. The finding was, left hip Perthes disease with prominent femoral head deformity. The veteran was examined by VA in May 1999. It was noted that since his discharge from service, he worked in at a mushroom plant, but that because there was a lot of standing and walking, he could not do the job, and he changed to a furniture plant. He stated that that position was only part time and that he currently did just odd jobs. The examiner noted that the veteran had pain after activity which lasted more than 30 to 45 minutes, including walking and standing. It was stated that he could not do any sports. On examination, it was noted that the veteran had a slight left compensated weak gluteus medius limp. He could come within two inches of touching the floor without bending his knees. It was noted that he had no atrophy of the thigh and no clinically significant weakness. Motion of the left hip was noted as follows: internal rotation to 10 degrees, external rotation to 30 degrees, motion from 180 degrees of extension to 50 degrees of flexion. The examiner found that the veteran had degenerative disease with pain complaints that were compatible with his hip problem. It was stated that activities which were limited were all sports and any job that required more than 30-45 minutes on his feet which caused pain. In June 1999, the RO increased the veteran's evaluation from 10 percent to 20 percent disabling under Diagnostic Code 5255. Malunion of either femur warrants a 20 percent rating when the disability results in moderate knee or hip disability. A 30 percent rating requires that the malunion produce marked knee or hip disability. Nonunion or fracture of the surgical neck of either femur warrants a 60 percent rating if the fracture results in a false joint. 38 C.F.R. Part 4, Code 5255. Limitation of flexion of either thigh to 30 degrees warrants a 20 percent rating. A 30 percent rating requires that flexion be limited to 20 degrees. 38 C.F.R. Part 4, Code 5252. Degenerative arthritis established by X-ray evidence will be rated on the basis of limitation of motion of the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (1999). Normal range of hip flexion is from 0 to 125 degrees; normal range of hip abduction is from 0 to 45 degrees. 38 C.F.R. § 4.71, Plate II. Here, malunion or nonunion of the femur is not shown, and the veteran's left hip disability has not resulted in a false joint. Thus, a higher rating for right femur fracture residuals under Code 5255 is not warranted. There is no evidence that the veteran has limitation of thigh flexion to 20 degrees or less so as to permit a higher evaluation under Code 5252. In addition there is no showing of ankylosis (Code 5250). The veteran's disability has been rated by analogy as 20 percent disabling under Diagnostic Code 5255, reflective of moderate impairment. In order to qualify for an increased evaluation under that Code, there must be a showing of marked impairment. The Board finds that the veteran's disability is properly rated as 20 percent disabling which is indicative of moderate left hip impairment. While the veteran has decreased motion of the left hip, the findings do not show that his motion is so limited as to warrant an evaluation above that currently assigned. The Board notes the argument that the veteran has decreased motion during flare-ups. The Board notes the veteran's complaints of pain on use. However, the Board finds that the functional impairment noted is contemplated in the rating which reflects moderate impairment. It is noted that there was a finding of no atrophy and no weakness. Accordingly, the Board concludes that marked impairment is not shown and that a higher rating for a left hip disability is not warranted. The Board's decision in this case is based upon the applicable provisions of the VA's Schedule for Rating Disabilities. The Board finds that there is no evidence submitted by the veteran, suggesting that the veteran's service-connected left hip disability has markedly interfered with earning capacity or employment status beyond that interference contemplated by the assigned 20 percent evaluation. Moreover, there is no indication that his service-connected left hip disability has necessitated frequent periods of hospitalization. In the absence of such factors, the Board finds no basis for a remand for compliance with the procedures for the assignment of an extra-schedular rating pursuant to 38 C.F.R. § 3.321(b)(1) (1999). See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 94-96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). However, as set forth above, in Hicks v. Brown, 8 Vet. App. 417 (1995), the Court noted that Diagnostic Code 5003 and 38 C.F.R. § 4.59 deem painful a motion of a major joint or group of minor joints 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. Therefore, with X-ray evidence of degenerative changes and objective demonstration of painful, but not limited, motion of the affected joint, a 10 percent rating would be applied to the joint under Diagnostic Code 5003. In this case, the evidence shows that the veteran has been diagnosed with degenerative joint disease of the left hip, based on x-ray and physical examination findings, and he has complained of pain on motion. On this basis, the Board finds that a separate 10 percent rating is appropriate for the veteran's left hip disability, in addition to the 20 percent rating currently assigned. ORDER An increased evaluation for a left hip disability is denied. A separate 10 percent rating for a left hip disability is granted, subject to the laws and regulations governing the payment of monetary benefits. F. JUDGE FLOWERS Member, Board of Veterans' Appeals