Citation Nr: 0002605 Decision Date: 02/02/00 Archive Date: 02/10/00 DOCKET NO. 98-01 625A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to an increased evaluation for residuals of postoperative wound infection of the right hip, currently evaluated as 30 percent disabling. 2. Entitlement to an increased evaluation for osteomyelitis, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The appellant and his wife ATTORNEY FOR THE BOARD James A. Frost, Counsel INTRODUCTION The veteran served on active duty from December 1943 to April 1946, with subsequent unverified service. This appeal to the Board of Veterans' Appeals (Board) arises from a rating decision in August 1997 by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. REMAND The Board notes that a rating decision in May 1995 granted compensation under the provisions of 38 U.S.C.A. § 1151 for additional disability of the right hip as a result of VA surgical treatment in 1958. A rating decision in January 1999 granted service connection for osteomyelitis as secondary to residuals of postoperative wound infection of the right hip. The Board find that the veteran's claims for increased evaluations for disabilities of the right hip are well grounded, under 38 U.S.C.A. § 5107(a) (West 1991). See Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 C.F.R. § 4.71a, Diagnostic Code 5000, provides that a 10 percent evaluation is warranted for inactive osteomyelitis, following repeated episodes, without evidence of active infection in the past five years. To qualify for the 10 percent evaluation, two or more episodes are required following the initial infection. A 20 percent evaluation for osteomyelitis requires a discharging sinus or other evidence of active infection within the past five years. This 20 percent evaluation is not assignable following the initial infection of active osteomyelitis if there was no subsequent reactivation. Established, recurrent osteomyelitis is required. A 30 percent evaluation requires a definite involucrum or sequestrum, with or without a discharging sinus. A 60 percent evaluation requires frequent episodes of osteomyelitis, with constitutional symptoms. In his substantive appeal, received in February 1998, the veteran asserted that osteomyelitis of the right hip has been active in recent years but can no longer be seen clearly on X-rays, due to degenerative changes of the right hip joint. He suggested that a bone scan would be more likely to see his claimed active osteomyelitis. At a VA hip examination in April 1995, the examining physician, who reviewed the veteran's medical records, found that a diagnosis of osteomyelitis made in 1972 was not fully proven at that time. The examiner stated that he did not see any real confirming evidence of osteomyelitis, but there could be a low grade focus of infection which remained dormant for the most part. He indicated that a bone scan and a CT scan or an MRI should be performed if it was necessary to determine whether osteomyelitis was present. A VA bone scan in August 1996 showed markedly increased uptake in the right hip, of uncertain etiology, which might represent degenerative changes, although osteomyelitis or septic arthritis could not be excluded. The examiner recommended radiographs for comparison. In February 1997, at a VA primary care clinic, the veteran gave a history of osteomyelitis and recurrent fevers and malaise, which generally resolved spontaneously with 3 or 4 days of rest. He said that this happened 2 or 3 times a week, and his temperature might reach 104 degrees. The assessment by a physician's assistant was chronic osteomyelitis versus degenerative joint disease. Later in February 1997, the veteran called the VA physician's assistant and asked for a refill of a prescription for Keflex, which he used to treat what he considered to be an acute flare up of osteomyelitis. He refused to come to the clinic for an evaluation of the claimed acute flare up of osteomyelitis. At a VA bones examination in April 1997, the examiner took the veteran's history, examined him, and reviewed X-rays. The examiner found that the veteran did not currently have osteomyelitis. In July 1997, the veteran's wife called the VA physician's assistant and said that the veteran had a fever of 101 degrees, with generalized malaise, and she thought that his osteomyelitis was back. She had some Keflex, and the physician's assistant advised her to give it to the veteran and to call back if he wanted to be seen. (The Board notes that the veteran's wife was apparently claiming that the veteran had constitutional symptoms of osteomyelitis.) At a VA joints examination in February 1998, laboratory tests were normal. The examiner offered an opinion that it was more likely than not that the veteran had chronic osteomyelitis of the right hip, with infrequent flares of symptoms, including fever and joint pain. No objective clinical findings of active osteomyelitis were reported. In a statement submitted in September 1999, the veteran said that he would not allow his right hip to become septic so that a VA adjudicator could see evidence of active osteomyelitis. Upon careful review of the record, the Board finds that the evidence is inconclusive as to whether the veteran has had active infection of osteomyelitis during the last five years, which is the criteria for a 20 percent evaluation under Diagnostic Code 5000. In addition, there have not been objective clinical findings to demonstrate frequent episodes of osteomyelitis with constitutional symptoms, as claimed by the veteran. The Board finds that additional medical evidence should be obtained prior to a final disposition of the appeal. Accordingly, this case is REMANDED to the RO for the following: 1. The RO should request that the veteran identify each physician and medical facility, VA or non-VA, which has treated him for active osteomyelitis since April 1995. After securing any necessary releases from the veteran, the RO should attempt to obtain copies of all such clinical records not already associated with the claims file. 2. The RO should then arrange for the veteran to undergo a VA orthopedic examination. It is imperative that the examiner review the veteran's medical records in the claims file and a copy of this REMAND. All indicated diagnostic studies, to include X-rays, a bone scan, a CT scan and/or an MRI, as appropriate, should be undertaken, and the examiner should determine whether the veteran currently has active osteomyelitis of the right hip. In addition, the examiner should offer an opinion on the question of whether it is at least as likely as not (a 50 percent or more likelihood) that the veteran has had active osteomyelitis of the right hip during the past five years. The examiner should also note whether there is any indication of a definite involucrum or sequestrum, with or without a discharging sinus. A detailed rationale for the opinion expressed should be provided. It is again pertinent to point out that, under the applicable rating criteria, (38 C.F.R. § 4.71a, Diagnostic Code 5000), a 10 percent evaluation (the veteran's current rating for osteomyelitis) is warranted for inactive osteomyelitis, following repeated episodes, without evidence of active infection in the past five years. A 20 percent evaluation for osteomyelitis requires a discharging sinus or other evidence of active infection within the past five years. This 20 percent evaluation is not assignable following the initial infection of active osteomyelitis if there was no subsequent reactivation. Established, recurrent osteomyelitis is required. Thus, it is essential that the examiner answer the question of whether it is at least as likely as not (a 50 percent or more likelihood) that the veteran has had active infection of osteomyelitis of the right hip during the past five years. (A 30 percent evaluation requires a definite involucrum or sequestrum, with or without a discharging sinus.) The examiner should refer this case to a specialist in infectious diseases if necessary. Following completion of these actions, the RO should review the evidence and determine whether the veteran's increased rating claims may now be granted. If the decision remains adverse to the veteran, he and his representative should be provided with an appropriate supplemental statement of the case and an opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration. The purpose of this REMAND is to obtain clarifying medical information. By this REMAND, the Board intimates no opinion as to the ultimate disposition of the appeal. No action is required of the veteran until he receives further notice, but he has the right to submit additional evidence and argument on the matter the Board has REMANDED to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Board points out to the veteran that, when a claimant, without good cause, fails to report for a necessary examination, a claim for an increased evaluation shall be denied. 38 C.F.R. § 3.655 (1999). R. F. WILLIAMS Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1999).