Citation Nr: 1316258 Decision Date: 05/17/13 Archive Date: 05/29/13 DOCKET NO. 09-37 451 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an initial rating in excess of 10 percent for status post right femur fracture. ATTORNEY FOR THE BOARD David S. Ames, Counsel INTRODUCTION The Veteran served on active duty from July 2006 to October 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in Los Angeles, California (RO). FINDING OF FACT The medical evidence of record shows that the Veteran's right hip disability is manifested by pain without any limitation of motion. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent status post right femur fracture have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5255 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the Veteran is harmless because of the thorough and informative notices provided throughout the adjudication and because the Veteran had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the Veteran, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in a letter dated in November 2008. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls on party attacking agency determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the Veteran and had satisfied that duty prior to the adjudication in the statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the Veteran of any evidence that could not be obtained. The Veteran has not referred to any additional, unobtained, relevant, available evidence. VA has obtained an examination with respect to the claim. In her July 2009 notice of disagreement, the Veteran requested that she be provided with an additional VA examination. However, there is no evidence of record which indicates that the Veteran's right hip injury has increased in severity since the April 2009 VA medical examination. The Veteran herself stated in July 2009 and October 2009 that her hip was "still hurting." Such a statement indicates that her symptoms had continued at the same level as before, and not that they had increased in severity. Thus, while the Veteran's most recent VA medical examination occurred over four years ago, the examination is not stale as there is no evidence of record that her right hip symptoms have increased in severity since that examination. Weggenmann v. Brown, 5 Vet. App. 281 (1993). Therefore, the Board finds that remand for a new examination is not warranted in this case. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist her in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2012). The Schedule is primarily a guide in the rating 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 (West 2002); 38 C.F.R. § 4.1 (2012). The Board may only consider the specific factors as are enumerated in the applicable rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994); Pernorio v. Derwinski, 2 Vet. App. 625 (1992). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2012). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2012); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31 (1999). The appeal of the Veteran's right hip claim is based on the assignment of an initial rating following an initial award of service connection for status post right femur fracture. Therefore, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence used to decide whether an original rating on appeal was erroneous. Fenderson v. West, 12 Vet. App. 119 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson v. West, 12 Vet. App. 119 (1999). Service connection for status post right femur fracture was granted by a June 2009 rating decision and a 10 percent rating was assigned under 38 C.F.R. § 4.71a, Diagnostic Code 5255, effective October 31, 2008. An October 2008 service medical report stated that, on physical examination, the Veteran had normal movement of all extremities. In an April 2009 VA general medical examination report, the Veteran complained of chronic, mild, dull pain along her lateral right hip. She had a scar on her lateral right hip, but it was non-painful. The Veteran reported experiencing right hip flare-ups approximately once every one to two months. The flare-ups were moderate in severity and lasted for approximately 30 minutes, during which time she did not experience additional limitation of motion or functional impairment. On physical examination, the Veteran's gait was normal. She had full right leg strength without atrophy, spasm, or other muscle abnormalities. There was mild tenderness to palpation in the right hip, but she did not have any joint prosthesis, ankylosis, or inflammatory arthritis. The Veteran had right hip flexion to 125 degrees, extension to 30 degrees, abduction to 45 degrees, adduction to 25 degrees, internal rotation to 40 degrees, and external rotation to 60 degrees. There was no pain on any range of motion, and the Veteran could cross her legs and toe out greater than 15 degrees. There was also no additional limitation of motion on repetitive use. After x-ray examination, the impression was no evidence of significant degenerative disease or acute osseous injury of the pelvis or hips, but there were three cannulated screws in the right hip with no hardware complications and no visible fracture. The abnormality was characterized as minor. The diagnosis was status post right femur fracture with three surgical screws placed. The disability had a mild impact on shopping, exercise, sports, recreation, traveling, and driving, and no effect on chores, feeding, bathing, dressing, toileting, and grooming. In an April 2009 VA outpatient medical report, the Veteran complained of episodic right hip pain. On physical examination, there was a scar on the Veteran's lateral right hip which measured 5 centimeters by 0.5 centimeters and was not tender to palpation. She had no deformities or soft tissue swelling, her strength was full, and she had a full range of motion of the right hip without pain. After x-ray examination, the assessment was status post right femur fracture with three surgical screws. The medical evidence of record shows that the Veteran's right hip disability is manifested by pain without any limitation of motion. The Veteran's right hip disability is currently rated under Diagnostic Code 5255, which contemplates impairment of the femur. Under Diagnostic Code 5255, malunion of the femur warrants a 10 percent rating with slight hip disability. A 20 percent rating is warranted for malunion with moderate hip disability. 38 C.F.R. § 4.71a, Diagnostic Code 5255 (2012). The medical evidence of record shows that the Veteran experienced a fracture of the femur which was surgically repaired with pins. The Board finds that such an injury is analogous to malunion of the femur. However, the Board also finds that the Veteran's symptoms are best characterized as producing no more than slight hip disability. Specifically, the medical evidence of record does not show that the Veteran experiences any right hip symptoms other than pain, and experiences no limitation of motion of the hip. Furthermore, the April 2009 VA radiographic report characterized her right hip disability as minor, while the contemporaneous VA medical examination found that her disability had no more than a minor impact on half of her activities of daily living, with no impact at all on the rest. The Board finds that such manifestations are not analogous to a moderate hip disability. The Board has considered rating the Veteran's service-connected right hip disability under all other appropriate diagnostic codes. The Schedule provides that assignment of a 10 percent rating is warranted for limitation of thigh extension to 5 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5251 (2012). A 10 percent rating is the maximum rating for that disability under the provisions of Diagnostic Code 5251 (2012). Accordingly, a higher rating is not possible under this diagnostic code. The Schedule provides that assignment of a 10 percent rating is warranted for limitation of thigh flexion to 45 degrees. A 20 percent rating is warranted for limitation of thigh flexion to 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5252 (2012). The medical evidence of record does not show that the Veteran's right hip range of motion has ever been limited to 30 degrees of flexion. Accordingly, a higher rating is not warranted under this diagnostic code. The Schedule provides that assignment of a 10 percent rating for impairment of the thigh is warranted for an inability to cross legs and an inability to toe-out more than 15 degrees. A 20 percent rating is warranted for a limitation of abduction beyond 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5253 (2012). The medical evidence of record does not show that the Veteran's right hip range of motion has ever been limited to 10 degrees of abduction. Accordingly, a higher rating is not warranted under this diagnostic code. Finally, the evidence of record does not demonstrate that the Veteran has ankylosis of the hip, flail joint of the hip, fracture of the shaft or anatomical neck of the femur with nonunion, or fracture of the surgical neck of the femur with a false joint. 38 C.F.R. § 4.71a, Diagnostic Codes 5250, 5254, 5255 (2012). Accordingly, a rating in excess of 10 percent is not warranted for the Veteran's service-connected right hip disability under these diagnostic codes. The Veteran has reported right hip pain, a contention which is substantiated by the medical evidence of record. However, there is no medical evidence of record that the Veteran's right hip has ever been limited in its range of motion to any compensable degree at any point during the period on appeal, let alone due to pain. The April 2009 medical reports stated that the Veteran did not experience pain on motion. Joint pain alone, without evidence of decreased functional ability, does not warrant a higher rating. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Accordingly, the preponderance of the medical evidence of record does not demonstrate that the Veteran experienced pain or other symptoms which caused additional limitations sufficient to warrant a rating in excess of 10 percent for her right hip disability. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995). The medical evidence of record shows that the Veteran has a surgical scar on her right hip that is related to her service-connected right hip disability. However, the Veteran has never reported any complaints with that scar and there is no medical evidence that the scar is deep, exceeds 6 square inches in area, is painful, is unstable, or is otherwise disabling. 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7804, 7805 (2012). Accordingly, the Board finds that a separate rating is not warranted for the Veteran's surgical scar. This claim has also been reviewed with consideration of whether staged ratings would be warranted. While there may have been occasional fluctuations of the Veteran's right hip symptoms, the evidence shows no distinct periods of time when her symptoms have varied to such an extent that a rating in excess of the currently assigned rating would be warranted for under any diagnostic code. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.344 (2012); Fenderson v. West, 12 Vet. App. 119 (1999). Generally, rating a disability using either the corresponding or analogous diagnostic codes contained in the Schedule is sufficient. 38 C.F.R. §§ 4.20, 4.27 (2012). However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. In exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular ratings for that disability are inadequate. Thun v. Peake, 22 Vet. App. 111 (2008); Fisher v. Principi, 4 Vet. App. 57 (1993). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). If the criteria under the Schedule reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Schedule, and the assigned schedular rating is adequate, and no referral is required. When service-connected disability affects employment in ways not contemplated by the rating schedule, § 3.321(b)(1) is applicable. VAOGCPREC 06-96 (1996), 61 Fed. Reg. 66749 (1996). The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render her disabilities rating for her right hip disability inadequate. The Veteran's right hip disability was rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5255 (2012), the criteria of which are found by the Board to specifically contemplate the Veteran's level of disability and symptomatology. The Veteran's right hip disability is manifested by pain without any limitation of motion. When comparing that disability picture with the symptoms contemplated by the Schedule, the Board finds that the Veteran's symptoms are adequately contemplated by the disability rating currently assigned for her right hip disability. Ratings in excess of the currently assigned rating are provided for certain manifestations of hip disabilities, but the medical evidence does not show that those manifestations are present. The Board finds that the criteria for the currently assigned rating for the Veteran's right hip disability reasonably describe the Veteran's disability level and symptomatology and, therefore, the currently assigned schedular rating is adequate and no referral is required. The Board finds that the evidence does not show frequent hospitalization or marked interference with employment. VAOGCPREC 06-96 (1996), 61 Fed. Reg. 66749 (1996); 38 C.F.R. § 4.71a, Diagnostic Code 5255 (2012). The Board finds that the preponderance of the evidence is against the claim for an increased rating for status post right femur fracture. Therefore, the claim is denied. 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Massey v. Brown, 7 Vet. App. 204 (1994). ORDER An initial rating in excess of 10 percent for status post right femur fracture is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs