Citation Nr: 1219082 Decision Date: 05/30/12 Archive Date: 06/07/12 DOCKET NO. 07-38 667 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial rating in excess of 10 percent for the Veteran's service-connected residuals of a right femur fracture. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD B. Diliberto, Associate Counsel INTRODUCTION The Veteran had active service from June 1969 to June 1975. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, that denied the benefit sought on appeal. The Veteran appealed that decision and the case was referred to the Board for appellate review. The Board notes that in a September 2008 rating decision the RO granted entitlement to a 10 percent rating for the Veteran's service-connected residuals of a right femur fracture, applicable for the entirety of the period on appeal. However, as this increase does not constitute a full grant of all benefits possible, and as the Veteran has not withdrawn his claim on that issue, it remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). In his December 2007 Substantive Appeal (VA Form 9) the Veteran requested a hearing before a Veterans Law Judge. A hearing was scheduled for September 2010. The Veteran did not report for that hearing and has not requested that it be rescheduled. Accordingly, the Board will review the Veteran's case as if he withdrew his request for a hearing. See 38 C.F.R. § 20.704(d) (2011). The Veteran's claim was previously before the Board in October 2010, on which occasion the Board remanded the claim for further development. The requested development has been completed and no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The Veteran has a stable right knee with full, non-painful range of motion; right leg length discrepancy is 1.2 inches. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for the Veteran's service-connected residuals of a right femur fracture have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Codes 5257, 5260, 5261 & 5275 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION Before addressing the Veteran's claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2011). The notification obligation in this case was met by way of letters from the RO to the Veteran dated in October 2006, January 2008 and November 2010. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances of this case. In addition, the Veteran and his representative have not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal and have not argued that any errors or deficiencies in the accomplishment of the duty to notify or the duty to assist have prejudiced the Veteran in the adjudication of his appeal. The Veteran has been afforded several VA examinations during the pendency of the appeal. The reports from those examinations reflect that the examiners reviewed the Veteran's medical records, recorded his current complaints, conducted appropriate physical examinations and rendered diagnoses and opinions consistent with the remainder of the evidence of record and pertinent to the rating criteria. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, the Board finds that the RO has satisfied the duty to notify and the duty to assist and will proceed to a discussion of the merits of the Veteran's appeal. The Veteran has claimed entitlement to an initial rating in excess of 10 percent for his service-connected residuals of a right femur fracture. Essentially, the Veteran contends that the evaluation assigned does not accurately reflect the severity of that condition. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected condition adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set in the Schedule for Rating Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ranges. VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath v. Derwinksi, 1 Vet. App. 589 (1991). If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required by that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See 38 C.F.R. § 4.1. A claim of entitlement to an increased rating, which was partially granted during the course of the appeal but assigned an effective date subsequent to the date of receipt of the claim, includes that period on appeal prior to the staged grant; therefore the practice of "staged" ratings may apply. That is, separate ratings can be assigned for separate periods of time based on the facts found. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. Ap. 119 (1999). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. Pernoria v. Derwinski, 2 Vet. App. 625, 629 (1992). The Board must also consider whether another rating code is "more appropriate" than the one used by the VA Regional Office. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). The Veteran first claimed entitlement to service connection for residuals of a right femur fracture in July 2006. In an April 2007 rating decision the RO granted entitlement to service connection for that condition and assigned a noncompensable rating effective from July 20, 2006, the day the Veteran first filed his claim. The Veteran submitted a Notice of Disagreement (NOD) in July 2007 and the RO issued a Statement of the Case (SOC) in October 2007. In December 2007 the Veteran filed a Substantive Appeal (VA Form 9). In a September 2008 rating decision the RO increased the Veteran's rating for that condition to 10 percent, applicable for the entirety of the period on appeal. That increase does not constitute a full grant of all benefits possible, and so the Veteran's claim remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). The Veteran's claim first came before the Board in October 2010, at which time it was remanded for further development. The requested development has been completed and no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the Veteran's claim is once again before the Board. The Veteran's service-connected residuals of a right femur fracture have been assigned a 10 percent disability rating. While the RO's rating sheet indicates that this has been assigned under Diagnostic Code 5255, for impairment of the femur, it is clear that the rating is actually based on the criteria establish in Diagnostic Code 5275, for shortening of the bones of the lower extremity. Diagnostic Code 5275 provides for a 10 percent rating for shortening of a lower extremity by 1 1/4 to 2 inches (3.2 to 5.1 centimeters). A 20 percent evaluation requires 2 to 2 1/2 inches (5.1 to 6.4 centimeters) of shortening. A 30 percent evaluation requires 2 1/2 to 3 inches (6.4 to 7.6 centimeters) of shortening. A 40 percent evaluation requires 3 to 3 1/2 inches (7.6 to 8.9 centimeters) of shortening. A 50 percent evaluation requires 3 1/2 to 4 inches (8.9 to 10.2 centimeters) of shortening. Shortening of over 4 inches (10.2 centimeters) warrants a 60 percent evaluation. Shortening which meets the criteria for a 50 percent evaluation also warrants special monthly compensation. Shortening is determined by measuring both lower extremities from the anterior superior spine of the ileum to the internal malleolus of the tibia. Evaluations for shortening of the lower extremity are not to be combined with those for fracture of faulty union in the same extremity. 38 C.F.R. § 4.71a, Diagnostic Code 5275 (2011). The relevant evidence of record includes VA treatment records, VA examination reports and written statements from the Veteran. VA treatment records from July 2006 and September 2006 indicate that the Veteran reported having been in a wheelchair since February 2006, when he heard a pop in his right knee. He reported knee pain. Range of motion was within normal limits and weakness due to non-use was noted. The Veteran was diagnosed with osteoporosis and mild to moderate progress medial compartmental degenerative joint disease with narrowing. During another appointment the Veteran reported that he injured his right knee in November 2005 when he kicked a pool table. Subsequent records show continued treatment. In March 2007 the Veteran was afforded a VA examination in support of his claim. The Veteran reported that he injured his right femur while playing baseball in service. He stated that this was originally treated with skeletal traction through a proximal tibial traction pin and that he eventually underwent IM nailing of the femur in 1971 with hardware removal in 1973. The Veteran reported right knee pain without flare-ups. The examiner noted that the Veteran utilizes a wheelchair for long distance gait. He stated that there were no constitutional symptoms of bone disease. Weight bearing activities were affected in that they are painful. Physical examination did not reveal any deformity, pseudoarthrosis or intraarticular involvement of the fracture or malunion. The Veteran's knee was tender to palpation, but there was no edema, painful motion, erythema or heat at the fracture site. The examiner noted that the Veteran had a limping gait and had functional limitations with standing and walking, as it resulted in knee pain. The examiner also noted that there was no ankylosis or joint involvement from the fracture. He noted that leg length discrepancy was an issue in that there was 3/4 of an inch difference between legs. A diagnosis of right femur fracture with residuals of a 3/4 inch length discrepancy was made. Subsequent VA treatment records demonstrate consistent symptomatology. The Veteran has also submitted Social Security Administration records and internet articles from the Canadian Department of Veterans Affairs. The records from the Social Security Administration indicate that the Veteran has been granted benefits degenerative joint disease and osteoarthritis. In his December 2007 Substantive Appeal (VA Form 9) the Veteran reiterated that he must use a wheelchair, as well as a cane and crutch for walking short distances. He related the history of his in-service injury and stated that after the removal of the tibial hardware he continued to have deep aching pain. He stated that in June 2005 he had to quit his job due to his arthritis. He also stated that in November 2005 he lightly kicked a pool table and that something popped in his right knee, resulting in his being wheelchair-bound. He also stated that several other maladies, including arthritis, are due to his shortened lower extremity. VA treatment records from that time contain an opinion that the Veteran's leg length inequality contributed to accelerated deterioration of degenerative arthritis. In June 2008 the Veteran was afforded an additional VA examination. During this examination the Veteran reiterated his previous statements and reported that he developed pain in his hips, knees and back in 2003. The examiner noted that radiographic imagery had shown severe degenerative arthritis and degenerative joint disease. On examination the examiner noted that a nuclear bone scan had shown osteoporosis. He also noted an 18 centimeter lateral thigh incision and that the Veteran's right leg measures from the anterior superior iliac spine to the anterior surface of the medial malleolus of 90 centimeters, with the left measuring 95 centimeters. Palpation of the femur did not reveal any calluses, tenderness or pain. Range of motion studies revealed flexion to 90 degrees and extension to zero degrees with mild pain. Lachman's and McMurray's tests were negative and the examiner noted that the cruciate ligaments appeared intact. Embossing of the joint line and tenderness were noted, but there was no swelling. The examiner stated that the Veteran's right leg length discrepancy plays no part in his knee, hip or spine pain and that the degenerative arthritis in those joints is a result of the aging process. In December 2010 the Veteran was afforded another VA examination. The examiner noted that the Veteran was discharged in 1975 and worked as an electrician until 2006. The Veteran stated that he retired because he was working in a cold food processing plant and the cold atmosphere aggravated his generalized arthritis. The Veteran reported that his main complaint is pain in his knees and hips, and that he has no actual pain in his femur. The examiner noted that there was no tenderness on palpation of the femur and that no callus could be felt. A three centimeter leg length difference was noted and the examiner stated that from the standpoint of his femur, the Veteran would be employable. After a thorough review of the evidence of record, the Board finds that a rating in excess of 10 percent is not warranted for the Veteran's service-connected residuals of a right femur fracture. The evidence clearly indicates that the Veteran fractured his right femur in service and that he has a resulting leg length disparity. At most, that leg length disparity has been determined to be 5 centimeters. Leg length disparity of between 3.2 and 5.1 centimeters warrants no more than a 10 percent rating under Diagnostic Code 5275. The Veteran has asserted that his arthritis and degenerative joint disease are also residuals of his in-service right femur fracture. However, none of the evidence indicates that the Veteran has any other symptomatology as a residual of his in-service right femur fracture and the Board notes that the RO denied entitlement to service connection for these conditions in an August 2008 rating decision. The Veteran has not appealed that rating decision and evaluation of the Veteran's service-connected residuals of a right femur fracture must exclude those conditions. As noted above, the records from the Social Security Administration indicate that the Veteran has been granted benefits based on his degenerative joint disease and osteoarthritis. These records reference treatment and medical findings that are consistent with VA treatment records and do not indicate the presence of any additional residuals due to the Veteran's service-connected right femur fracture. With regard to the internet articles from the Canadian Department of Veterans Affairs submitted by the Veteran the Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that a medical article or treatise "can provide important support when combined with an opinion of a medical professional..." Sacks v. West, 11 Vet. App. 314 (1998); see also Wallin v. West, 11 Vet. App. 509 (1998) (medical treatise evidence discussed generic relationships with a degree of certainty to establish a plausible causality of nexus), and Mattern v. West, 12 Vet. App. 222, 228 (1999). The Board has no reason to doubt the veracity of the information submitted, but it does not establish any specific symptomatology experienced by the Veteran and does not relate to the history or current status of the Veteran's residuals of a right femur fracture. The Board has reviewed all relevant diagnostic codes and finds that the evidence does not support a rating under any alternate diagnostic code relevant to the condition at issue. See 38 C.F.R. § 4.118. In this regard, the Board notes that an increased rating under Diagnostic Code 5255 would require evidence of malunion and that there is no such evidence referenced in the claims file. The Board has also considered whether the Veteran is entitled to a "staged" rating for his service-connected disorder. See Hart, 21 Vet. App. 505. However, the Board finds that the Veteran's disorder does not warrant a rating in excess of 10 percent for any time during the period on appeal. In exceptional cases, extraschedular ratings may be assigned. See 38 C.F.R. § 3.321(b)(1). In this regard, the Board's October 2010 remand requested referral of the issue to the Director of the Compensation and Pension Service in accordance with 38 C.F.R. § 3.321(b)(1). See also Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). In a March 2012 decision the Director of the Compensation Service determined that higher evaluations were available if the Veteran's disability was manifested by additional symptomatology, but that there was no evidence that the Veteran's service-connected residuals of a right femur fracture were interfering with the Veteran's employability, that they were resulting in frequent periods of hospitalization or that there was an unusual or exceptional disability pattern that would render application of the regular rating criteria impracticable. The Board has also considered assignment of an extra-schedular evaluation. However, because the record does not show that the Veteran's right femur fracture residuals have required frequent hospitalization, or that manifestations of that disability have, at any point, exceeded those contemplated by the schedular criteria assignment of an extraschedular evaluation in this case is not in order. Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Thun v. Peake, 22 Vet. App. 111 (2008). The Board notes that pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a total disability rating by reason of individual unemployability due to service-connected disability (TDIU) is considered part and parcel of an increased-rating claim when the issue of unemployability is raised by the record. However, in this case there is no indication or assertion that the Veteran is unemployable solely as a result of his service-connected conditions. Rather, the Veteran has stated that he retired because his non-service connected arthritis was aggravated by working in cold conditions. Accordingly, consideration of a TDIU is not warranted. In sum, the Board has determined that the preponderance of the evidence is against the Veteran's claim of entitlement to an initial rating in excess of 10 percent for any time during the appeal period. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001). ORDER Entitlement to an initial rating in excess of 10 percent for the Veteran's service-connected residuals of a right femur fracture is denied. ____________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs