Citation Nr: 1648547	
Decision Date: 12/30/16    Archive Date: 01/06/17

DOCKET NO.  12-13 617	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1. Entitlement to a rating in excess of 20 percent for residuals of a low back injury with lumbosacral degenerative disc and joint diseases. 

2. Entitlement to a rating in excess of 10 percent for right hip trochanteric bursitis. 

3. Entitlement to a rating in excess of 10 percent for left hip trochanteric bursitis. 


ATTORNEY FOR THE BOARD

Stephen LoGerfo, Associate Counsel





INTRODUCTION

The Veteran served on active duty from January 1970 to August 1972. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. 

In November 2015, the Veteran was sent a clarification letter regarding her prior choice for representation in this appeal. The letter explained to the Veteran that there was an issue regarding the VA Form 21-22 she submitted for her representative because the attorney was no longer authorized to represent VA claimants. She was instructed on how to cure the issue as well as the various representation options available to her. The letter also stated that she would become unrepresented if a response was not received within 30 days from the date of the letter. The Board will proceed with its decision and consider the Veteran as pro se, or unrepresented, because she did not respond in the allotted time with a valid choice in representation. 

In February 2016, the Board remanded these claims for further development. 

In April 2016, the RO issued a rating decision finding that the Veteran was entitled to a separate evaluation for left lower extremity radiculopathy with an evaluation of 20 percent effective April 11, 2016. 

In April 2016, a supplemental statement of the case (SSOC) was issued further denying an increase of more than 10 percent for left hip trochanteric bursitis and right hip trochanteric bursitis as well as an increase of more than 20 percent for residuals of a low back injury. 



FINDINGS OF FACT

1. Degenerative disc disease with facet arthritis and spondylosis of the lumbar spine is not manifested by forward flexion of the thoracolumbar spine less than 30 degrees or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. There is also no evidence of ankylosis or corroborating medical evidence of incapacitating episodes.

2. Throughout the appeal period, the Veteran's right hip trochanteric bursitis manifests symptoms of pain and tenderness with flexion at no less than 100 degrees and abduction at no less than 15 degrees. 

3. Throughout the appeal period, the Veteran's left hip trochanteric bursitis manifests symptoms of pain and tenderness with flexion at no less than 100 degrees and abduction at no less than 15 degrees with pain.


CONCLUSIONS OF LAW

1. The criteria for an initial rating in excess of 10 percent for degenerative disc disease with facet arthritis and spondylosis of the lumbar spine are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.27, 4.71a, Diagnostic Code (DC) 5242 (2015).

2. The criteria for an initial evaluation in excess of 10 percent for right hip trochanteric bursitis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5019 (2015).

3. The criteria for an initial evaluation in excess of 10 percent for left hip trochanteric bursitis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5019 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Increased Rating

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 

Where there is a question as to which of two evaluations shall 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.

The Veteran's entire history is to be considered when making disability evaluations. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). 

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the 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 visible behavior of the claimant undertaking the motion.

Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant on motion. Disability of the musculoskeletal system is the inability to perform normal working movement with normal excursion, strength, speed, coordination, and endurance, and that weakness is as important as limitation of motion, and that a part that becomes disabled on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, through atrophy, for example. 38 C.F.R. § 4.40.

The provisions of 38 C.F.R. §§ 4.45 and 4.59 also contemplate inquiry into whether there is limitation of motion, weakness, excess fatigability, incoordination, and impaired ability to execute skilled movements smoothly, and pain on movement, swelling, deformity, or atrophy of disuse. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing are also related considerations. The Court has held that diagnostic codes predicated on limitation of motion require consideration of a higher rating based on functional loss due to pain on use or due to flare-ups. 38 C.F.R. §§ 4.40, 4.45, 4.59; Johnson v. Brown, 9 Vet. App. 7 (1997); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).

The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011).

Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). However, pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability. 38 C.F.R. § 4.14 (2015).

As described further below, the VA examination reports are adequate for adjudication.  The examiners examined the Veteran, considered her history, and set forth objective findings necessary for adjudication.  In reaching the decisions below, the Board considered the admissible and believable assertions of the Veteran.  See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994).  However, the criteria needed to support higher ratings for the disabilities on appeal require medical findings that are within the province of trained medical professionals.  See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994).  The lay statements are not considered more persuasive than the objective medical findings obtained.  

The Board has also considered whether referral for consideration of an "extraschedular evaluation" is warranted for any disability on appeal, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made.  38 C.F.R. § 3.321(b)(1).  

The lay and medical evidence of record fails to show unique or unusual symptomatology regarding the Veteran's service-connected disabilities that would render the schedular criteria inadequate.  As shown below, the Veteran's symptoms for each of her disabilities are contemplated in the assigned schedular ratings.  Thus, the application of the Rating Schedule is not rendered impractical.  Moreover, she has not argued that her symptoms are not contemplated by the rating criteria; rather, she has merely disagreed with the assigned disability ratings for her levels of impairment.  In other words, she does not have any symptoms from her service-connected disabilities that are unusual or different from those contemplated by the schedular criteria.

Finally, she has not alleged or indicated that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria.  See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014).  Accordingly, referral for consideration of an extraschedular evaluation for any claim on appeal is not warranted.

The Board has also considered whether an inferred claim for a total disability based upon individual unemployability has been raised pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009).   However, while the April 2016 VA examinations indicate that the disabilities can interfere with her current employment, they do not preclude all employment and specifically still allow for clerical and sedentary employment.   Entitlement to a TDIU pursuant to Rice needs not be addressed further.

A. Low Back Injury

In the February 2009 rating decision on appeal, service connection for residuals of a low back injury with lumbosacral degenerative disc and joint diseases was granted. The Veteran was assigned a 20 percent rating, effective April 17, 2001, pursuant to 38 C.F.R. § 4.71a, DC 5010-5292.

In an April 2016 rating decision, a separate, 20 percent rating for left lower extremity radiculopathy was granted, effective April 11, 2016.

Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent evaluation is warranted when the forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation requires forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation requires unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted where unfavorable ankylosis of the entire spine is demonstrated.
  
Additionally, under the Formula for intervertebral disc syndrome (IVDS) based on Incapacitating Episodes, ratings are assigned based on the quantity and duration of incapacitating episodes over a prior 12-month period.  For purposes of evaluation under this formula, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician.  Under this Formula, a 20 percent evaluation is warranted if incapacitating episodes have a total duration of at least two weeks but less than four weeks during the past 12 months, a 40 percent rating is warranted if the total duration is at least four weeks but less than six weeks, and a 60 percent rating is warranted if the total duration is at least six weeks.

For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees.  These rating criteria are applied with and without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.

Note (5) in DCs 5235-5242 further explains that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.

When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995).  The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion.  Johnson v. Brown, 9 Vet. App. 7 (1996).

Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are separately rated under an appropriate diagnostic code.  38 C.F.R. § 4.71a, Diagnostic Code, 5242, 5243, at Note (1) (2015).

The Veteran reported to the April 2016 examiner that while stationed in Takoma, Washington, she was hit by a running car and sustained damage to the L4-L5 vertebrae and also a fracture of the coccyx. She was treated with a conservative management but since then has been complaining of significant low back pain with occasional radiation to the left lower extremity. The pain occasionally is associated with some burning sensation and on the VAS scale she described the pain as a 6. About two to three times a month, the pain goes up to a 10 and last for two to three days until she rests and takes medication that includes Motrin, Darvocet, Skelaxin, Flexeril and Vicoprofen. 

The Veteran will occasionally complain of muscle spasticity affecting the lumbosacral junction but did not report any associated symptoms such as weight loss, fever, malaise, dizziness, visual disturbances or rectal bladder dysfunction. The Veteran does not use an assistive device but occasionally uses a lumbosacral brace at work. She currently is under no specific therapy and no surgery has been recommended for her condition. 

She reports that she is unable to walk for more than five blocks at a time or walk on uneven terrain or go up and down steps constantly. In terms of activities of daily living, she is unable to take a bath because she cannot bend to get into the tub and occasionally has difficulty putting on shoes and socks. She also indicated that standing in one position or sitting or bending aggravates her pain but that can be relieved by walking for short distances. 

The Veteran reports two periods of incapacitation where she had bed rest recommended by her physician, Dr. B. from Jacksonville, Florida and from time to time she has missed work also because of flare-ups and exacerbations of her low back pain. Unfortunately, the Board does not see any corroborating evidence regarding the prescribed bed rest. 

At the April 2016 examination, the Veteran reported flare-ups of her back that resulted in aching pain with radiation into the left L5 dermatome. She also reported functional loss in being unable to pick objects up off the ground or to carry 15 pounds or to repetitively bend or to stoop. 

At the April 2016 examination, the Veteran had a forward flexion of 45 degrees and a total range of motion in the thoracolumbar spine of 130 degrees. Pain was noted on examination and caused functional loss in forward flexion, extension, right lateral flexion, left lateral flexion, right lateral rotation and left lateral rotation. There was also pain noted with weight bearing that was described as bilaterally painful spastic lumbosacral parasipnous musculature. The Veteran was able to perform repetitive use testing with at least three repetitions and there was no additional loss or function in range of motion. The VA examiner was unable to opine as to where flare-ups significantly limited functional ability because the Veteran did not currently have a flare-up. The Veteran did have a guarding or muscle spasm resulting in abnormal gait or abnormal spinal contour as well as localized tenderness. There was no ankylosis of the spine. The VA examiner did not that the Veteran reported 4 weeks of prescribed bed rest but, as noted above, there are no corroborating medical records. 

The preponderance of the evidence is against the assignment of a rating in excess of 20 percent for the Veteran's lumbar spine disability based on the General Rating Formula for Disease or Injury of the Spine.  There is no evidence establishing the forward flexion of the thoracolumbar spine is less than 30 degrees or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. There is also no evidence of ankylosis. 

The Board considered the application of 38 C.F.R §§ 4.40 and 4.45 in light of the Court's ruling in DeLuca, supra.  The record consistently demonstrates that the Veteran reported lumbar pain, and the Board recognizes that VA examiners acknowledged and confirmed that she experienced such symptomology.  However, any additional functional impairment due to pain, including on use, is already contemplated in the evaluation assigned and that there was no demonstration, by lay or medical evidence, of additional functional impairment comparable to the next higher evaluation due to the service-connected lumbar spine disability.

As for incapacitating episodes, given the findings of the VA examiners, and as there is no record of prescribed bed rest by a physician due to the service-connected lumbar spine disability, the criteria for a higher evaluation under Diagnostic Code 5243 have not been met.  

The Board finds that no higher evaluation can be assigned pursuant to any other Diagnostic Code.  Because there are specific Diagnostic Codes to evaluate the spine, consideration of other codes for evaluating the disability is not appropriate. 

As for neurological manifestations of the disability, as discussed, a separate rating for radiculopathy of the left leg has been assigned from April 11, 2016 onward, but as the Veteran has not appealed the May 2016 rating decision, the matter of a higher rating for left leg radiculopathy is not on appeal.  Prior to April 11, 2016, the record showed no evidence of any neurological abnormality; the September 2009 VA examiner found no radiculopathy and the Veteran did not report those symptoms.  As such, a separate rating for left leg radiculopathy is not warranted prior to April 11, 2016.  As no other neurological abnormality has been identified as associated with the lumbar spine disability at any other time in the appeal, further separate ratings in this regard are not warranted.

The Board has considered Correia v. McDonald, No. 13-3238, 2016 WL 3591858 (Vet. App. July 5, 2016) which holds that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.  The Board finds that the VA examination reports of record contain sufficient findings in this regard, and further remand is not required.  

Range of motion measurements for the opposite joint are unnecessary as there is no joint opposite of the spine.  Additionally, the April 2016 VA examiner addressed pain in weight bearing status and in repetitive use testing.  To the extent the VA examination reports do not contain separate findings in active and passive motion; each examination report indicates that the Veteran moved on her own free will, indicating that pain in active motion has been considered.  It follows that an assessment of passive motion would yield the same result; if the Veteran was able to move his spine herself to a particular degree, the spine would be capable of the same movement by the examiner, and the results in active motion are applicable to passive motion.

For the foregoing reasons, the Board finds that the preponderance of the evidence is against the assignment of any higher rating or any staged rating, under the applicable rating criteria.  In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the assignment of a rating in excess of 20 percent, the doctrine is not for application.  




B. Bilateral Trochanteric Bursitis

The Veteran's right and left hip trochanteric bursitis has each been evaluated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5019. Bursitis is rated upon limitation of motion of the affect part. 38 C.F.R. § 4.71a Diagnostic Code 5019 (bursitis). The hip, including limitation of motion, is covered by Diagnostic Codes 5250-5255.

Limitation of motion of the hip is rated under either Diagnostic Code 5251, 5252, or 5253. 

Under Diagnostic Code 5251, a 10 percent rating, which is the maximum rating for limitation of extension, is warranted for extension limited to 5 degrees. 

Under Diagnostic Code 5252, a 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. 

Under Diagnostic Code 5253, a 10 percent rating is warranted for the inability to cross the legs or external rotation limited to 15 degrees. A 20 percent rating is warranted for abduction limited to 10 degrees. 

Normal extension of the hip is to 30 degrees and normal flexion is to 125 degrees. Normal abduction is to 45 degrees. 38 C.F.R. § 4.71a, Plate II.

The Veteran complains of constant pain in the left hip and pain in the right hip comes and goes. The pain daily is at least a 7-8/10 and aggravated by walking, bending, and lying on her side. She states that she cannot lie on her left side for very long. She can tolerate laying on the right side a little better. She sees a private family practitioner, Dr. Bemichimol, in Gainesville, Florida, who gives her pain medications. She also sees a chiropractor in High Springs, Florida. The chiropractic treatment is somewhat helpful, but the effect does not last for very long. She complains of associated stiffness, weakness, and denies instability, heat, redness, subluxation, or dislocation. Flare-ups occur several times week and are severe, lasting for several hours to a day. The Veteran did not report having a flare-up at her April 2016 VA examination. A flare-up is precipitated by the above aggravating factors and alleviated with rest and medications.

The Veteran's current treatment is Darvocet-N 100, which she takes daily; Hydrocodone 10mg, Acetaminophen 650 mg at bedtime, Tramadol 50 mg three times a day as needed, Cyclobenzaprine 10 mg at bedtime and Mobic 7.5 mg twice a day. She has had trochanteric bursa steroid injections, which have helped in the past, but do not last for very long. She denies any assistive device.

The Veteran reports difficulty with prolonged sitting, standing, lifting and bending at work as a Park Ranger. She has missed work approximately ten days in the past year and usually misses three days at a time when she has a really severe flare-up which she states occurs two to three times a year. In terms of activities of daily living, the Veteran states that she cannot ride a horse anymore. She also is unable to sit through an entire movie and indicates that the pain has had a severe impact on her sex life. 

At the April 2016 examination of the right hip, the Veteran had a flexion of 100 degrees, an extension of 20 degrees and an abduction of 15 and 35 degrees. The Veteran's abduction was not limited such that she could not cross her legs. The Veteran had an external rotation of 50 degrees and an internal rotation of 20 degrees. 

The examiner found that the range of motion itself did not contribute to functional loss but there was pain noted on the examination for flexion, extension, abduction and internal rotation. There was also objective evidence of localized tenderness or pain on palpation in the right greater trochanter and mild to right piriformis muscle. 

The Veteran was not able to perform repetitive use testing because the back and buttocks were too painful to do squats. The examiner indicated that he would be unable to say without speculation that the Veteran's functional ability is limited by pain, weakness, fatigability or incoordination with repeated use over time. This is because the Veteran was not having a flare-up at the examination. 

The VA examiner also noted that were additional contributing factors of disability that included less movement than normal due to adhesions, disturbance of locomotion and interference with sitting and standing. 

The VA examiner also noted a reduction in muscle strength entirely due to the claimed condition but no muscle atrophy. 

At the April 2016 examination of the left hip, the Veteran had a flexion of 100 degrees, an extension of 20 degrees and an abduction of 15 and 35 degrees. The Veteran's abduction was not limited such that she could not cross her legs. The Veteran had an external rotation of 50 degrees and an internal rotation of 20 degrees. 

The examiner found that the range of motion itself did not contribute to functional loss but there was pain noted on the examination for flexion, extension, abduction and internal rotation. There was also objective evidence of localized tenderness or pain on palpation in the left greater trochanter and moderate to left piriformis muscle. There was also objective evidence of crepitus. 

The Veteran was not able to perform repetitive use testing because the back and buttocks were too painful to do squats. The examiner indicated that he would be unable to say without speculation that the Veteran's functional ability is limited by pain, weakness, fatigability or incoordination with repeated use over time. This is because the Veteran was not having a flare-up at the examination. 

The VA examiner also noted that were additional contributing factors of disability that included less movement than normal due to adhesions, disturbance of locomotion and interference with sitting and standing. 

The VA examiner also noted a reduction in muscle strength entirely due to the claimed condition but no muscle atrophy. 

There was no ankylosis found in either hip. The VA examiner opined that the Veteran had some limit on her ability to perform certain occupational tasks but that clerical or sedentary occupations were neither limited nor precluded. 

The Board finds that the evidence does not demonstrate that either the Veteran's right or left hip trochanteric bursitis warrants a higher than 10 percent evaluation due to limitation of motion. In other words, the Veteran's right and left hip symptoms do not manifest flexion limited to 30 degrees or limitation of abduction motion lost beyond 10 degrees. Rather, throughout the appeal period, the Veteran's right hip exhibited painful flexion motion at no less than 100 degrees and painful abduction motion at no less than 15 degrees and her left hip exhibited painful flexion motion at no less than 100 degrees and painful abduction motion at no less 15 degrees. Despite the objective findings of pain and functional loss, especially at the April 2016 VA examination, the Veteran's range of motion in her right and left hips did not exhibit any such further loss of motion, than otherwise described, that would warrant an evaluation consistent with a 20 percent evaluation for limitation of flexion or abduction motion. See Deluca, 8 Vet. App. at 206; see also 38 C.F.R. §§ 4.40, 4.45. Thus, the Board finds that the Veteran's right and left hip trochanteric bursitis are each no more than 10 percent disabling.

II. Duties to Notify and Assist

Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 C.F.R. § 3.159 (2015).  Here, the Veteran was provided with the relevant notice and information in June 2009 letter prior to the initial adjudication of his claim.  Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).  He has not alleged any notice deficiency during the adjudication of his claim.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim.  Here, the Veteran's service records, VA records, and identified private treatment records have been obtained and associated with the claims file.  The Veteran was also provided with VA examinations which, collectively, contain a description of the history of the disability at issue; document and consider the relevant medical facts and principles; and provide opinions regarding the etiology of the Veteran's claimed condition.  VA's duty to assist with respect to obtaining relevant records and an examination has been met.  38 C.F.R. § 3.159(c); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

Pertinent to the issues decided herein, in February 2016, these claims were remanded for new examinations of the Veteran's low back disability and her trochanteric bursitis and for updated treatment records. 

Pursuant to the February 2016 Board remand, new examinations were provided and updated treatment records were obtained. Accordingly, the Board finds that VA at least substantially complied with the February 2016 Board remand. See 38 U.S.C.A. § 5103A (b); Stegall, 11 Vet. App. 268


ORDER

Entitlement to a rating in excess of 20 percent for residuals of a low back injury with lumbosacral degenerative disc and joint diseases is denied.  

Entitlement to a rating in excess of 10 percent for right hip trochanteric bursitis is denied.  

Entitlement to a rating in excess of 10 percent for left hip trochanteric bursitis is denied.  


____________________________________________
M. Tenner
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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