Citation Nr: 1327897 Decision Date: 08/30/13 Archive Date: 09/05/13 DOCKET NO. 09-26 635 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an increased evaluation in excess of 10 percent for residuals of a right femur fracture with chronic strain. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD Bernard T. DoMinh, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from July 1992 to December 1996 and from October 2004 to September 2005. His service includes a deployment to Iraq from December 2004 to August 2005. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision by the St. Petersburg, Florida, Regional Office of the Department of Veterans Affairs (VA), which was brokered the Veteran's claim from the Roanoke, Virginia, VA Regional Office (RO), which is the agency of original jurisdiction over the current appeal. The February 2007 rating decision, inter alia, denied the Veteran's claim for a compensable evaluation for residuals of a right femur fracture with chronic strain. During the course of this appeal, an August 2012 RO decision granted a 10 percent evaluation for this disability, effective October 12, 2007 (i.e., the date on which VA received the Veteran's application to reopen his claim for a rating increase for right femur fracture residuals). As this is not the maximum evaluation provided in the applicable rating schedule, the matter remains in controversy. See AB, Appellant, v. Brown, 6 Vet. App. 35 (1993). In November 2012, the Board remanded the case to the RO via the Appeals Management Center (AMC) in Washington, D.C., for additional evidentiary development. After good faith attempts were conducted on part of the RO/AMC to comply with the Board's remand instructions, the claim was readjudicated in a May 2013 rating decision/supplemental statement of the case, which confirmed the 10 percent evaluation assigned to the service-connected right femur fracture residuals. The case was thereafter returned to the Board in June 2013 for adjudication at the appellate level. FINDINGS OF FACT The clinical evidence of record demonstrates that the residuals of right femur fracture with chronic strain are manifested by subjective right hip pain and soreness on prolonged use with radiographic evidence of a well-healed distal femoral shaft fracture with no complications from installed hardware, productive of impairment analogous to malnunion with slight hip disability. CONCLUSION OF LAW The criteria for an evaluation above 10 percent for residuals of a right femur fracture with chronic strain have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5255 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION With regard to the increased rating claim decided herein, the Board notes at the outset that, in accordance with the VCAA, VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Generally, the notice requirements of a claim have five elements: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must also: (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. See 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). 38 C.F.R. § 3.159(b) has since been revised and the requirement that VA request that the claimant provide any evidence in his possession that pertains to the claim was removed from the regulation. The current claim was filed on October 12, 2007. A VCAA notice letter was dispatched to the Veteran in November 2007, prior to the February 2008 rating decision now on appeal. This letter addressed the issue on appeal and satisfied the above-described mandates, as well as the requirements that the Veteran be informed of how VA calculates degree of disability and assigns an effective date for the disability, as prescribed in Dingess v. Nicholson, 19 Vet. App. 473 (2006). As fully compliant notice preceded the initial adjudication of the Veteran's claim decided herein, there is no timing of notice defect. VA also has a duty to assist the Veteran in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim"). This duty includes assisting the Veteran in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant). VA informed the Veteran of its duty to assist in obtaining records and supportive evidence with regard to the increased rating claim adjudicated herein. The Veteran's treatment records from VA, as pertinent to the time period at issue (i.e., from October 12, 2006, to the present, per 38 C.F.R. § 3.400(o)(2) (2012), which permits assignment of an effective date for an increased rating award of up to one year prior to date of receipt of claim if it is factually ascertainable that the increase in disability occurred within that period, and Hart v. Mansfield, 21 Vet. App. 505 (2007), with regards to the Board's requirement to consider the applicability of a staged rating), have been obtained and associated with the evidence. The Board has also reviewed the Veteran's claims file as it appears on the VBMS and Virtual VA electronic information databases for any additional pertinent medical records. The Board notes at this juncture that a VA examination specifically addressing the severity of the Veteran's right femur fracture residuals at issue was not performed in conjunction with the current increased rating claim. The Veteran's claims file indicates that on several occasions during the pendency of the claim, VA had made attempts in good faith to schedule the claimant for a medical examination of his right femur fracture, but that the Veteran failed to report for all of the scheduled examinations and did not show good cause for failing to appear in the most recent attempts to provide him with a VA medical examination. Specifically, the Veteran failed to appear for a VA examination scheduled for December 2007. The Veteran informed VA that he did not receive adequate notice of this examination as he changed his mailing and residence address during the pendency of the claim ad he requested to be provided with the appropriate compensation examination. VA accepted this as good cause for his failure to appear in December 2007. The Board thusly remanded the case to the RO/AMC in November 2012 so that the requested examination could be furnished to the claimant. Correspondence associated with the claims file shows that the Veteran was notified that he was scheduled for a VA medical examination, to be conducted in March 2013. The Veteran failed to appear for this examination without showing good cause, despite being sent notice to his last known address of record. (The correspondence was not, in fact, returned to VA as undeliverable, thereby indicating that it arrived safely at the Veteran's last known address.) A telephone contact report dated in April 2013 shows that the Veteran was contacted by VA and that he requested to be examined at a specific VA clinic location. A May 2013 supplemental statement of the case reflects that he was scheduled for a VA medical examination that was to be held in early May 2013, but that despite being duly notified of the scheduled date and time of the examination he nevertheless failed to appear and did not provide any prior notice to VA showing good cause as to why he was unable to come to the examination. In view of the foregoing discussion regarding VA's exhaustive multiple attempts in good faith to provide the Veteran with a medical examination of his right femur fracture residuals, and of the Veteran's evident obstinate refusal to comply with VA in appearing for the scheduled examinations through no apparent fault of VA, the Board deems VA's duty to assist to have been adequately discharged by the actions taken thus far to develop the evidence. [See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991): The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence, including his obligation to present his own person to VA for a medical examination in a claim for a rating increase.] The Board further finds that the RO/AMC had substantially complied with the Board's remand instructions of November 2012, notwithstanding that its attempts to develop the records were not met with success due to apparent uncooperativeness on the part of the Veteran. See Dyment v. West, 13 Vet. App. 141, 146 - 47 (1999). In this regard, the United States Court of Appeals for Veterans Claims (Court) has held in the case of Olsen v. Principi, 3 Vet. App. 480 (1992) and Engelke v. Gober, 10 Vet. App. 396 (1997), that when the veteran refuses or fails to submit to a VA examination in connection with an increased rating claim without good cause or adequate explanation, and has refused to cooperate with the RO in providing information to assist the RO in developing his claim, VA's duty to assist has been discharged, and the RO may rely on the available evidence of record (even where such evidence is old or obsolescent) to rate the veteran's disability. Based on the foregoing, the Board finds that the VA has adequately fulfilled its VCAA duties to notify and to assist the Veteran in the evidentiary development of the claim decided herein, and thus no additional assistance or notification is required. The Board will therefore proceed with the adjudication of this appeal. At this juncture, the Board notes that applicable caselaw has dictated that any claim for a rating increase for a service-connected disability based on a claim to reopen must be denied when the claimant has failed to report for a scheduled VA examination. Specifically, the action to be taken depends on whether the examination was scheduled in connection with an initial rating claim or a claim for an increase. An initial rating claim is classified as an original compensation claim under 38 C.F.R. § 3.655(b), so where the claimant fails to report for an examination, the case shall be rated on the evidence of record. Fenderson v. West, 12 Vet. App. 119, 125 (1999); Turk v. Peake, 21 Vet. App. 565, 568-70 (2008). In contrast, where the claimant fails to report for an examination scheduled in connection with a claim for an increase, the claim shall be denied. Id. Also, as a threshold matter, when a veteran misses a scheduled VA examination, the Board must consider (1) whether the examination was necessary to establish entitlement to the benefit sought, and (2) whether the claimant lacked good cause to miss the scheduled examination. See 38 C.F.R. § 3.655(a) (2012); Turk, 21 Vet. App. at 569. The facts of this case show that the Veteran has ultimately failed to show good cause for failing to appear for the medical examinations that VA attempted to provide him following the November 2012 Board remand. The present claim is based on an application to reopen the claim for a rating increase. At the time the claim was reopened in October 2007, the Veteran's right femur fracture residuals were rated noncompensably disabling. Ultimately, he was granted an increased rating to 10 percent, effective from the date of claim, based on the available clinical evidence of record (i.e., a June 2008 VA orthopedic consultation report), notwithstanding his failure to appear for a formal VA medical examination. Although a strict application of the regulations and caselaw holds that no rating increase shall be awarded if a claimant fails to appear for a medical examination in conjunction with a rating increase claim without showing good cause, the Board finds that the evident generosity of the RO in awarding the 10 percent rating constitutes harmless error as no actual harm or prejudice to the Veteran has resulted. The Board will therefore not disturb this favorable determination of the RO and will proceed with an adjudication of the claim on the merits. The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10 (2012). In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2 (2012); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2012). It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2012). In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). Based on the October 12, 2007 date of VA's receipt of the Veteran's application to reopen his claim for a rating increase, the relevant temporal focus for the increased rating claim for residuals of a right femur fracture with chronic strain is from October 12, 2006. See 38 C.F.R. § 3.400 (2012). The Veteran's service medical records show that he sustained a right femur fracture in August 1996 while playing football. Treatment involved open reduction and internal fixation of his fracture, in which metal hardware was surgically inserted to set and heal the fracture. He was awarded service connection and a noncompensable evaluation for residuals of right femur fracture with chronic strain in an August 1998 rating decision. In October 2007, he reopened his claim for a rating increase for this orthopedic disability. The service-connected residuals of a right femur fracture are rated as impairment of the femur under Diagnostic Code 5255, which provides for the assignment of a 10 percent evaluation for impairment due to malunion of the femur with slight knee or hip disability. Assignment of a 20 percent evaluation is warranted for impairment due to malunion of the femur with moderate knee or hip disability. Assignment of a 30 percent evaluation is warranted for impairment due to malunion of the femur with marked knee or hip disability. Assignment of a 60 percent evaluation is warranted for fracture of the surgical neck of the femur with false joint. Assignment of a 60 percent evaluation is warranted for fracture of the shaft or anatomical neck of the femur with nonunion, but without loose motion, with weightbearing preserved with the aid of a brace. Assignment of an 80 percent evaluation is warranted for fracture of the shaft or anatomical neck of the femur with nonunion, with loose motion (spiral or oblique fracture). 38 C.F.R. § 4.71a, Diagnostic Code 5255 (2012). A thorough evaluation of a musculoskeletal or orthopedic disability for rating purposes requires consideration of any functional loss due to pain, incoordination, weakness, or fatigability. 38 C.F.R. §§ 4.40, 4.45 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must be made as to whether the disabled joint exhibits pain on use, weakened movement, excess fatigability, incoordination, or any other disabling symptom, and whether such pain could significantly limit functional ability during flare-ups or when the joint is used repeatedly over a period of time. The only detailed clinical assessment of record regarding the state of the Veteran's right femur fracture residuals during the pendency of this claim is the report of a June 2008 VA outpatient orthopedic consultation, which shows, in pertinent part, that the Veteran complained of subjective chronic right hip pain that is more acute on prolonged use, prolonged sitting, and prolonged standing. He also expressed subjective feelings of emotional discomfort (but not actual painful discomfort) over the notion that there was metallic hardware implanted in his right femur and stated his desire to have them removed someday. Physical examination shows that the Veteran was in no apparent distress and ambulated with a normal gait with no outward evidence or displays of right hip or knee pain. His right hip was nontender to palpation and he was able to perform an active straight leg raise and abduct and adduct his right hip without difficulty. He displayed minimal pain with internal and external rotation and displayed full range of motion. X-ray of his right hip revealed a well-healed distal femoral shaft fracture with no complications from the inserted hardware. The assessment was right hip pain likely due to post-traumatic inflammation. He was prescribed non-steroidal anti-inflammatory medication (ibuprofen or naproxen) for his symptoms. The Board has considered the available clinical evidence of record, as discussed above, and finds that the 10 percent evaluation presently assigned adequately compensates the Veteran for the subjective right hip pain associated with his right femur fracture residuals with chronic strain. Pursuant to 38 C.F.R. §§ 4.40, 4.45 and DeLuca v. Brown, 8 Vet. App. 202 (1995), the Board finds that the June 2008 orthopedic consultation report shows that the Veteran's right hip has full range of motion and does not indicate that there is any additional functional loss or loss of motion caused by the subjective right hip pain. The X-rays also do not indicate any additional complication from the surgical reduction and fixation of the right femur fracture and associated implanted hardware. Therefore, the Board finds that the clinical evidence does not demonstrate that the Veteran's present level of right hip impairment more closely approximates the constellation of disabling symptomatology contemplated in the Diagnostic Code 5255 of the rating schedule for a 20 percent evaluation for moderate hip disability. 38 C.F.R. § 4.7 (2012). The claim for rating increase for residuals of a right femur fracture with chronic strain must therefore be denied. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Individual unemployability and extraschedular consideration. To the extent that a claim for individual unemployability based on the increased rating claim for residuals of a right femur fracture with chronic strain has been raised by the record, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), the Board notes that the clinical evidence does not objectively demonstrate or otherwise indicate that the Veteran is unable to secure and follow a substantially gainful occupation solely by reason of his service-connected residuals of a right femur fracture with chronic strain. As such, there is no basis to award a TDIU or to refer his case to the Director of the Compensation and Pension Service for extraschedular consideration for individual unemployability, pursuant to 38 C.F.R. § 4.16(b) (2012). The Board further finds that there is no evidence of an exceptional or unusual disability picture associated with the Veteran's service-connected right femur fracture residuals. A rating in excess of the assigned schedular evaluations for the Veteran's service-connected disabilities addressed herein on the merits may be granted when it is demonstrated that the particular disability presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). To accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1) (2012). The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2012) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. See Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. See Shipwash v. Brown, 8 Vet. App. 218, 277 (1995). Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, the Board or the RO must determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. The Board finds that there is no evidence that the Veteran's service-connected residuals of a right femur fracture with chronic strain have presented such an unusual or exceptional disability picture at any time between October 12, 2006 to the present, so as to require consideration of an extraschedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321(b) (2012). Specifically, the evidence of record does not indicate the Veteran is frequently hospitalized for this aforementioned service-connected disability and there is no indication that this orthopedic disability, by itself, imposes marked interference with his ability to work. The criteria of the applicable rating schedule is therefore deemed to adequately contemplate the Veteran's present level of impairment due to the right femur and hip disability at issue, as individually considered. As such, the Board cannot concede that the Veteran's residuals of a right femur fracture with chronic strain, standing by itself, causes marked interference with his employment capacity. Higher ratings are available for this disability, but for the reasons described in the above decision, a higher rating was denied in this case. The clinical evidence fails to show that the disability picture created by the right femur fracture residuals, in isolation, is of an exceptional or unusual nature. Having reviewed the record with these mandates in mind, the Board finds that the schedular rating presently assigned to this disability adequately reflects the state of its impairment for the period to which it is applied, and that there is no evidentiary basis for referral of the case for extraschedular consideration with regard to this issue. ORDER An increased evaluation in excess of 10 percent for residuals of a right femur fracture with chronic strain is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs