Citation Nr: 0003461 Decision Date: 02/10/00 Archive Date: 02/15/00 DOCKET NO. 97-34 899 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an increased rating for residuals of right hip injuries, currently rated as 20 percent disabling. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nancy S. Kettelle, Counsel INTRODUCTION The veteran had active service from March 1952 to March 1955. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In that rating decision, the RO continued a 20 percent rating for the veteran's service-connected right hip disability, and the veteran's disagreement with that rating led to this appeal. Review of the record shows that in an October 1998 rating decision the RO denied service connection left knee disability secondary to the veteran's service-connected right hip injury residuals. The RO informed the veteran and his representative of its decision in a letter dated in November 1998, and in a statement received at the RO later that month, the veteran's representative expressed the veteran's disagreement with the denial of service connection for left knee disability. The Board refers this matter to the RO so that it may issue a statement of the case. In addition, the Board notes that in the November 1998 statement, the veteran's representative raised the issue of entitlement to service connection for low back disability on a secondary basis. The Board also refers this issue to the RO for appropriate action. FINDING OF FACT Residuals of injuries of the right hip are manifested by hip pain on use and slight limitation of motion. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for residuals of injuries of the right hip have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5255 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION Initially, the Board notes that it finds the veteran's increased rating claim to be well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). Additionally, the facts relevant to this claim have been properly developed, and the statutory obligation of VA to assist in the development of the claim has been satisfied. In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (1999) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of injuries of the right hip. The Board has found nothing in the historical record that would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations that would warrant an exposition of remote clinical histories and findings pertaining to this disability. Briefly, the service medical records show that the veteran was hospitalized in August 1954 for evaluation of a bony lesion of the right ischium. The veteran was a paratrooper and on several occasions had landed in such a manner that he injured his buttocks. He recalled no specific injury that laid him up more than one or two days, but in the past 10 or 12 months had noticed soreness in the right buttocks and posterior thigh. August 1954 X-rays of the pelvis revealed a lesion in the ramus of the right ischium. It was the opinion of a consultant in orthopedic surgery that this could be exuberant callous, secondary to an undiagnosed fracture of the ischeo ramus. The veteran was hospitalized for 10 days and was then returned to his unit with the recommendation that he not parachute jump for approximately 2 months. In mid-September 1954, the veteran was hospitalized for seven days for observation of trauma to the right hip incurred following an authorized parachute jump. He walked with a limp and complained of pain over the right hip. At that time, it was noted that the veteran had a history of a fracture of his right pelvis in April 1954, with complete healing. X-rays revealed no new injury and showed an unchanged old healed fracture of the right pelvis involving the ischial tuberosity. The diagnosis was contusion, right hip. The veteran filed his service connection claim in March 1956. VA examination in April 1956 showed residuals of injuries of the right hip manifested by pain, some limitation of adduction and a slight limp. X-rays showed considerable deformity of the right ischium, and the radiologist stated that wavy linear shadows suggested there might have been a comminuted fracture. In a rating decision dated in April 1956, the RO granted service connection for residuals of injury, right hip, and assigned a 20 percent rating from March 1956. After additional VA examinations, the 20 percent rating was continued in rating decisions dated in February 1960 and May 1979. The veteran filed his current increased rating claim in February 1997. In the report of VA X-rays of the right hip taken in March 1997, the radiologist noted there were radiolucencies and some sclerotic changes of the inferior portion of the right pubic bone and expansion. He also stated there were osteoarthritic changes of the right hip. He said multiple views of the right hip showed no definite fracture. At a VA clinical examination in April 1997, the veteran complained of fairly constant and nagging pain around the right hip area. He reported difficulty standing and walking a long distance. The physician noted the veteran's history of right hip injuries in service and his recent history of prostate cancer diagnosed in January 1997. On examination, the physician noted the veteran had a slight limp on the right side. Range of motion of the right hip showed flexion to 90 degrees, extension to 5 degrees, abduction to 40 degrees, adduction to 20 degrees, internal rotation to 20 degrees and external rotation to 45 degrees. During flexion of the hip, the veteran complained of pain near the posterior gluteal region. The diagnosis was: "Painful right hip area. No residual of previous injury. There is suspicious area of bone lesion in the ischial bone." Henry Ford Hospital office visit notes dated in December 1997 show that the veteran reported difficulty with his right pelvis and hip ever since service. The veteran reported that currently his biggest problem was when he tried to shovel, dig, sweep, etc. He said that with those activities he had a sense of pain, became fatigued and was unable to complete the tasks. He reported that he currently worked as a bus driver, and when he sat for a long time, he developed discomfort. He said that sitting up to 2 to 3 hours gave him pain. He also said he was unable to walk more than 100 yards without discomfort. The physician stated that on examination, the veteran clearly had pain with rotation of the right hip, particularly with outward rotation. There was mild discomfort with flexion of the leg. The physician reported full range of motion and said the veteran was able to walk with a slight limp. The assessment was ongoing right hip pain, secondary to pelvic fracture related to a service injury. The physician stated there was no evidence of loss of range of motion, although the veteran clearly had discomfort on range of motion testing. At a hearing before a Hearing Officer at the RO in February 1998, the veteran testified that his right hip condition was painful. He testified that it was difficult to get out of bed, and that he was unable to stand for a long period of time because of his hip. He also testified that he was unable to sit and drive for a long period. He also said that he guessed that he could walk no more than a quarter of a mile before he would have to sit down. He testified that he had very uncomfortable right hip pain all of the time. VA outpatient records include notations in 1998 of complaints of chronic right hip pain. In July 1998, the assessment included chronic right hip pain secondary to degenerative joint disease. The plan at that time was to discontinue Motrin and to give Tylenol #3 as needed. The veteran was advised to exercise and to lose weight. At a VA orthopedic examination in October 1998, the veteran's complaints included painful right hip. He said the pain was fairly constant and was aggravated by bad weather, long standing or walking. There was no history of flare-up. He gave a history of previously taking medications like Motrin, but was not currently on medication. Right hip examination showed that the leg alignment was normal. There was tenderness near the ischial region. There was no muscle atrophy or deformity. The range of motion testing showed flexion to 85 degrees with complaints of pain in the groin. There was extension to 5 degrees, also with complaints of pain. There was abduction to 40 degrees, and there was adduction to 20 degrees. Internal rotation was 20 degrees, and external rotation was 40 degrees. The physician reported that X-rays of the right hip showed normal bony relationship. There was no residual of any fracture or traumatic pathology, and no arthritis was noted. The diagnosis was normal right hip without any arthritis or any residual of previous fracture. The physician's opinion was that the veteran was suffering from degenerative arthritis of the spine with spondylolisthesis that gave some pain in the low back and right hip area. The physician stated there was no inherent hip pathology at that time and there was no residual of fracture or trauma. 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). Separate diagnostic codes identify the various disabilities. 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; 38 C.F.R. §§ 4.1, 4.10 (1999). When there is a question as to which of two ratings shall be applied, the higher rating 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 (1999). The evaluation of the same disability under various diagnoses and the evaluation of the same manifestation under different diagnoses are to be avoided. 38 C.F.R. § 4.14 (1999). 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. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202, 205-06 (1995). With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Under 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, arthritis due to trauma and substantiated by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Although there is conflicting evidence as to whether right hip arthritis is present, all potentially applicable diagnostic codes, including those pertaining to limitation of motion, are for consideration in determining whether the veteran's right hip disability warrants an increased evaluation. Under the Rating Schedule, limitation of extension of the thigh warrants a 10 percent rating if extension is limited to 5 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5251 (1999). Limitation of flexion of the thigh warrants a 10 percent rating if flexion is limited to 45 degrees, a 20 percent rating if flexion is limited to 30 degrees, a 30 percent rating if flexion is limited to 20 degrees, and a 40 percent rating if flexion is limited to 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5252 (1999). Impairment of the thigh warrants a 10 percent rating if the affected leg cannot toe-out more than 15 degrees due to limitation of rotation of the affected leg, or if the legs cannot be crossed due to limitation of adduction. Impairment of the thigh warrants a 20 percent rating where there is limitation of abduction and motion is lost beyond 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5253. Within the Rating Schedule, 38 C.F.R. § 4.71, Plate II shows normal thigh (hip) flexion to 125 degrees and normal thigh (hip) extension to 0 degrees. The plate also shows normal thigh (hip) abduction to 45 degrees. Impairment of the femur warrants a 10 percent rating if there is malunion of the femur with slight knee or hip disability, a 20 percent rating if there is malunion of the femur with moderate knee or hip disability, and a 30 percent rating if there is malunion of the femur with marked knee or hip disability. Fracture of the surgical neck of the femur with false joint warrants a 60 percent rating. A 60 percent rating, or higher, is warranted for fracture of the shaft or anatomical neck of the femur with nonunion. 38 C.F.R. § 4.71a, Diagnostic Code 5255. Although there is some conflict in the evidence as to whether all right hip symptoms are service-connected residuals of the veteran's in-service injuries, the Board finds, with resolution of reasonable doubt in favor of the veteran, that his service-connected disability is manifested primarily by right hip pain on use and slight limitation of motion. The veteran's right hip disability is currently rated as 20 percent disabling under Diagnostic Code 5255. The evidence does show that the veteran walks with a limp favoring the right lower extremity, and limitation of motion of the right hip and right hip pain are shown by the evidence. The Board is satisfied that the veteran has moderate right hip disability, which warrants a 20 percent rating under Diagnostic Code 5255. However, the evidence does not, in the Board's judgment, show symptoms that more nearly approximate marked right hip disability, which would be required for a 30 percent rating. In this regard, the veteran has consistently reported that he can sit for 2 to 3 hours and that he can walk from 100 yards to a quarter of a mile before needing to sit down. The Board has also considered whether a higher evaluation is warranted on the basis of limitation of motion. In order to warrant an evaluation in excess of 20 percent based on limitation of motion, limitation of flexion of the right thigh must more nearly approximate limitation to 20 degrees than to 30 degrees. On no occasion has the veteran been found to have limitation of right thigh flexion even to 45 degrees. Therefore, the veteran's documented range of right thigh flexion does not justify a rating in excess of 20 percent under Diagnostic Code 5252. In determining the extent of limitation of motion, the provisions of 38 C.F.R. §§ 4.40, 4.45 and 4.59, concerning function impairment due to pain, weakness, excess fatigability and incoordination, and functional impairment on repeated use and during flair-ups are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The veteran does have pain on motion of the right hip, and the Board does not doubt that the pain increases with use. However, the record shows no weakness, excess fatigability or incoordination of the right hip, and the right hip is not subject to flare-ups. The limitation of thigh extension to 5 degrees shown at various examinations warrants no more than a 10 percent rating under Diagnostic Code 5251, and none of the medical evidence shows limitation of thigh flexion, abduction, adduction or rotation that would alone warrant even a compensable rating under Diagnostic Code 5252 or 5253. Therefore, even with consideration of 38 C.F.R. §§ 4.40, 4.45 and 4.59, it is the opinion of the Board that neither alone, nor with the associated pain, does the extent of limitation of motion of the right hip meet or more nearly approximate the criteria for a 30 percent rating under any potentially applicable diagnostic code. The Board has also considered whether there should be referral to the Director of the Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1) (1999). The veteran has stated that he was hospitalized from June 1996 to September 1996 for his "0% service-connected disability." However, the veteran did not respond with additional information when the RO requested that he identify the hospital and provide release authorization allowing VA to obtain information from the hospital. The demonstrated manifestations of the disability to which the veteran testified at his hearing and which have been documented in the available medical evidence are consistent with the assigned rating. In there is no indication in the record that the average industrial impairment resulting from the veteran's residuals of right hip injuries would be in excess of that contemplated by the assigned evaluation. Therefore, the Board finds that the criteria for submission for assignment of an extra-schedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER A rating in excess of 20 percent for residuals of right hip injuries is denied. SHANE A. DURKIN Member, Board of Veterans' Appeals