Citation Nr: 0525783 Decision Date: 09/21/05 Archive Date: 09/29/05 DOCKET NO. 03-21 007 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an evaluation in excess of 30 percent for residuals of total left hip replacement from September 1, 2002. 2. Entitlement to an evaluation in excess of 30 percent for residuals of total right hip replacement from May 1, 2002. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant and a friend. ATTORNEY FOR THE BOARD A. Hinton INTRODUCTION The veteran served on active duty from January 1976 to January 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida (RO). In that decision, the RO increased the assigned rating for the left hip disability from 20 percent to: (1) 30 percent effective from May 11, 2000, to July 15, 2001; (2) 100 percent effective from July 16, 2001, to August 31, 2002; and (3) 30 percent effective from September 1, 2002. The RO also increased the assigned rating for the right hip disability from 20 percent to: (1) 30 percent effective from May 11, 2000, to March 6, 2001; (2) 100 percent effective from March 7, 2001, to April 30, 2002; and (3) 30 percent effective from May 1, 2002. The veteran perfected an appeal with respect to the assignment of the 30 percent ratings effective from September 1, 2002, and May 1, 2002, for the left and right hip disabilities, respectively. In his notice of disagreement, he stated that he objected to the decision to reduce the respective ratings from 100 percent to 30 percent. The situation here, however, is not a reduction as contemplated under 38 C.F.R. § 3.105(e) and § 3.344(c). In the March 2002 rating decision, the RO assigned the respective 100 percent ratings pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5054, which provides for a 100 percent rating for one year following implantation of a prosthesis (hip replacement). The respective 100 percent ratings were assigned for periods following left and right hip replacement surgery, pursuant to 38 C.F.R. § 4.71a Diagnostic Code 5054 (2004). At the end of the one-year period, ratings are assigned on the basis of the severity of residuals, and under Diagnostic Code 5054, require a minimum rating of 30 percent. See 38 C.F.R. § 4.71a, Diagnostic Code 5054. Therefore, the appropriate issues are as addressed by the RO, and stated above on page one. Also, the veteran appealed the respective 30 percent ratings assigned--claiming an increase-- only as to the period following the 100 percent rating. For each hip disability, the period for which the 100 percent rating is assigned, and the period prior to that, are not at issue. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required on his part. REMAND The veteran's left and right hip disabilities have been assigned a 30 percent rating under the criteria of 38 C.F.R. § 4.71(a), Diagnostic Code 5252-5054. Diagnostic Code 5054 provides a 100 percent rating for one year after hip replacement; then, a 90 percent rating with painful motion or weakness such as to require crutches; a 70 percent rating for markedly severe residual weakness, pain or limitation of motion; a 50 percent rating for moderately severe residual weakness, pain or limitation of motion; and a minimum rating of 30 percent. Diagnostic Code 5252 provides for evaluation of the hip on the basis of limitation of flexion of the thigh. An increase is also feasible for the hip disabilities under rating provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5250, which provides for evaluation based on ankylosis. Diagnostic codes such as these include limitation of motion in their rating criteria. In DeLuca v. Brown, 8 Vet. App. 202 (1995), the United States Court of Appeals for Veterans Claims (Court) held that for disabilities evaluated on the basis of limitation of motion, VA was required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45 (2004), pertaining to functional impairment. The Court instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, or incoordination. Such inquiry was not to be limited to muscles or nerves. These determinations were, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, or incoordination. The veteran's last VA orthopedic examination of his left and right hip disability was conducted in February 2002, more than three years ago. The report of that examination, while noting the veteran's complaints of pain on straight leg raising in the hip areas, contained insufficient information to be considered responsive to the provisions of 38 C.F.R.§§ 4.40 and 4.45 as required by the decision of the United States Court of Veterans Appeals (Court) in DeLuca v. Brown, 8 Vet. App. 202 (1995). The veteran contends that his bilateral hip disabilities cause him chronic pain, limitation of motion due to this pain, and weakness in his hips resulting in functional loss. In June 2005, he testified that the pain in the hips was better than before his surgeries, but was still at a level of 8 (out of 10) on the left and 5 to 6 on the right; with exacerbations on activity to 8 or 9 on the left and 7 or 8 on the right. VA medical records since the February 2002 VA examination suggest that the symptoms of the bilateral hip disabilities have become more severe since then. A VA report of X-ray examination in September 2003 noted that some X-rays looked like the veteran had a cyst in the upper part of the acetabulum, which could be somewhat painful. The physician stated that that maybe the scar tissue around the surgery site was tightening. The physician commented that the veteran would be reevaluated in six to eight months to see how he was doing, indicating that further evaluation was needed. There is no record to indicate that this was done. In June 2005, a VA physician stated that the veteran had chronic pain at multiple sites but most predominantly in the hips, and that at times, this was severe in the left hip. The physician also stated that orthopedic physicians opined that the pain may be due to pulling from scar tissue or possibly a cyst in the acetabulum. In sum, the most recent examination of the hips is inadequate for rating purposes, and was conducted in February 2002, more than three years ago. Also, the record since then indicates that the veteran's bilateral hip disabilities have worsened. The fulfillment of the VA's statutory duty to assist the appellant includes providing additional VA examination by a specialist when indicated, and conducting a thorough and contemporaneous medical examination, and providing a medical opinion, which takes into account the records of prior medical treatment, so that the disability evaluation will be a fully informed one. See Hyder v. Derwinski, 1 Vet. App. 221 (1991); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Accordingly, to ensure that the duty to assist has been met, the Board finds that after obtaining any additional records, it is necessary for VA to afford the veteran an examination for the purpose of determining the severity of the veteran's bilateral hip disabilities. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). Moreover, this examination would be instructive with regard to the appropriate disposition of the claim under appellate review. In view of the above, the case is remanded to the RO via the Appeals Management Center in Washington DC for the following: 1. The appellant should be asked to identify all medical care providers who evaluated or treated him for his left and right hip disabilities since February 2002. The RO should request copies of any outstanding private or VA medical records of treatment for the left and right hips for that period from all sources identified. 2. Thereafter, the RO should schedule the veteran for VA examination by an orthopedic specialist to determine the severity of the left and right hip disabilities. All studies deemed appropriate in the medical opinion of the examiner should be performed, and all findings should be set forth in detail. The claims file should be made available to the examiner, who should review the entire claims folder in conjunction with this examination. This fact should be so indicated in the examination report. The rationale for any opinion expressed should be included in the examination report. If the examiner determines that it is not feasible to respond to any of the inquiries below, the examiner should explain why it is not feasible to respond. The examination should include range of motion testing, and all ranges of motion should be reported in degrees. Range of motion testing should include the range of motion of the thigh by flexion. For each hip, symptoms such as pain, stiffness, or aching in the area of the hip affected should be noted, as well as other pertinent findings. For each hip, the presence of objective evidence of pain, excess fatigability, incoordination, and weakness should be noted, as should any additional disability due to these factors. The examiner is asked to render opinions regarding each hip as to whether there is: (a) residual weakness, pain or limitation of motion, and if so, opine whether residual weakness, pain or limitation of motion is sufficient to be characterized as (i) moderately severe or (ii) markedly severe; (b) painful motion or weakness requiring the use of crutches; and/or (c) ankylosis of the hip, and if so, whether ankylosis is (i) favorable (in flexion at an angle between 20 and 40 degrees, and slight adduction or abduction), (ii) intermediate, or (ii) unfavorable (the foot not reaching the ground, crutches necessitated). (d) whether pain could significantly limit functional ability during flare-ups or when the hip is used repeatedly over time. This determination should, if feasible, be portrayed in terms of the degree of additional range of motion loss or favorable or unfavorable ankylosis due to pain on use or during flare-ups. The examiner is asked to comment on the opinion contained in the June 2005 statement VA by a VA physician, that the pain may be due to pulling from scar tissue or possibly a cyst n the acetabulum. 3. The RO should then readjudicate the left and right hip claims. If any such action does not resolve a claim, issue the veteran and his representative a supplemental statement of the case (SSOC). The SSOC must include consideration of all relevant evidence received since the July 2004 supplemental statement of the case. An appropriate period of time should be allowed for response. 4. Thereafter, the case should be returned to the Board for further appellate consideration. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of the remanded issue. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). _________________________________________________ J. E. DAY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2004).