Citation Nr: 1331296 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 07-23 444 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an increased rating for status post right femur fracture, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from September 1967 to August 1970, with periods of active duty for training, including from May to September 1977. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision of the Department of Veterans Affairs' (VA) Regional Office (RO) in Roanoke, Virginia. In September 2010, the Veteran testified during a hearing before the undersigned Acting Veterans Law Judge (AVLJ) in Washington, DC; a transcript of that hearing is of record. In October 2010, the Board remanded the appeal for further development. In October 2012, the Board adjudicated one claim, and remanded the above-captioned matter for additional development. That development having been completed, the claim has been returned to the Board and is now ready for appellate disposition. The Board has considered documentation included in the Virtual VA system in reaching the determinations below. No new records pertinent to this appeal were found therein. As noted by the Board in October 2012, the issue of entitlement to service connection for a bladder disorder has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. Additionally, the issue of entitlement to service connection for a right knee disorder, to include as secondary to the service-connected right femur fracture, has been raised by findings of May 2006 and April 2007 VA examiners. This issue has not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDING OF FACT The Veteran's status post right femur fracture has not been shown to be productive of a false joint, nonunion of the femur, favorable hip ankylosis, thigh flexion limited to 10 degrees, or a flail joint. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for the status post right femur fracture are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5255 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance Under applicable law, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds that the content requirements of a duty to assist notice have been fully satisfied. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). A letter from the RO dated in March 2006 provided the Veteran with an explanation of the type of evidence necessary to substantiate his claim, as well as an explanation of what evidence was to be provided by him and what evidence the VA would attempt to obtain on his behalf. The letter also provided him with information concerning the evaluation and effective date that could be assigned should the claim be granted, pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has no outstanding duty to inform the Veteran that any additional information or evidence is needed. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained. His service treatment records and post service treatment records have been obtained. He has been afforded VA examinations. The Board does not have notice of any additional relevant evidence which is available but has not been obtained. The Veteran was also afforded a personal hearing before the undersigned AVLJ. During the hearing, the AVLJ clarified the issue on appeal, explained the concept of increased ratings, identified an evidentiary deficit, and suggested the submission of additional evidence to support the Veteran's claim. The actions of the AVLJ supplement the VCAA and comply with any related duties owed during a hearing. See Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010). The Board is further satisfied that the RO has substantially complied with its October 2012 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). As directed by the Board, the AOJ provided an adequate VA examination for the disability on appeal. As additionally directed by the Board, the AOJ adjudicated the issues of entitlement to a separate rating for bilateral lower extremity radiculopathy and entitlement to service connection for right leg muscle atrophy. As discussed further in the decision below, on VA examination in November 2012, the Veteran's radiculopathy and right leg muscle atrophy were determined to be related to his service-connected degenerative disc and joint disease of the lumbar spine, status-post fusion L4-L5 and L5-S1. In a February 2013 rating decision, service connection was granted for bilateral radiculopathy as related to the service-connected lumbar spine disorder. A 20 percent rating was assigned for radiculopathy of the right leg, and a 10 percent rating was assigned for radiculopathy of the left leg. The RO considered the Veteran's muscle atrophy of the right calf in the rating decision. The Veteran has not, at present, expressed disagreement with this decision. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claim. Therefore, no further assistance to the Veteran with the development of evidence is required. Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. At the outset, the Board observes that an unappealed rating decision March 1979 granted service connection for the Veteran's status post fracture of the right femur and assigned a 30 percent rating. While the Veteran's entire history is reviewed when making a disability determination, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Board has reviewed all of the evidence in the Veteran's claims folders. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Historically, the Veteran suffered an injury during service while operating a bulldozer to clear land for a rifle range. The bulldozer had no protective caging on it. A large tree limb broke off and fell, injuring the Veteran. His right leg was fractured in three places, and he spent seventy-two days in bed in traction. He sustained other injuries as well, including to his back and colon, for which he is also service-connected. The Veteran's status post fracture of the right femur has been assigned a 30 percent rating under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5255. Under this code, malunion of the femur warrants a 10 percent rating with slight knee or hip disability, a 20 percent rating with moderate knee or hip disability, and a 30 percent rating with marked knee or hip disability. A 60 percent rating is warranted for fracture of the surgical neck with a false joint, or also for fracture of the shaft or anatomical neck with nonunion but without loose motion and where weight bearing is preserved with aid of a brace. An 80 percent rating is warranted for fracture of the shaft or anatomical neck with nonunion and loose motion (spiral or oblique fracture). The Board further notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45 (2012); 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. See Johnson v. Brown, 9 Vet. App. 7 (1996). Considering the pertinent evidence in light of the above, the Board finds that a rating greater than 30 percent for the Veteran's status post fracture of the right femur is not warranted at any point. The pertinent evidence of record includes VA examination reports of May 2006, April 2007, October 2009, December 2010, and November 2012, as well as VA treatment records. The Board notes, however, that while a large volume of VA treatment notes are of record, these records contain very little information sufficient for rating the disability of the right femur. Indeed, much of the information in these records pertains to other disabilities, including the Veteran's back and stomach disabilities. Additionally, at the outset, the Board notes that the muscle atrophy and the neurological problems in the Veteran's right leg have been determined to be due to his lumbar-related radiculopathy, and not his femur fracture. In October 2012, the Board requested a VA examination to determine whether these symptoms were attributable to the right femur disability on appeal, or other disabilities. On VA examination in November 2012, the examiner determined that the Veteran's muscle atrophy of the right leg, which affects the calf area, is directly related to lumbar radiculopathy. The examiner further determined that the neurological problems affecting the right leg, which include paresthesias, mild weakness of the right hip flexors, ankle dorsi and plantar flexors, and great toe extension, and sensory loss of the right lower extremity, are directly also related to the Veteran's service-connected lumbar spine disorder. As such, information in the treatment records and VA examination reports concerning muscle atrophy and neurological problems in the right leg will not be discussed here as this symptomatology pertains to the Veteran's separately service connected lumbar radiculopathy. X-rays from April 2006 showed an old healed fracture of the right femoral shaft. There were mild right patellar osteophytes. On VA examination in May 2006, the Veteran complained of pain at the back of his right thigh. He reported a right leg limp, giving way, weakness, limited motion, stiffness, and instability. There was no false joint. The Veteran reported using a cane for walking. He denied flare-ups. On examination, it was found that the Veteran could stand for 15-30 minutes, and could walk for more than 1/4 mile, but less than one mile. There was no ankylosis. The disability prevented sports, had a moderate effect on chores, shopping, exercise, and recreation, had a mild effect on traveling, and had no effect on feeding, bathing, dressing, toileting, and grooming. On VA examination in April 2007, the Veteran complained of pain, a right leg limp, giving way, weakness, limited motion, stiffness, and instability. There was no false joint. He reported using a cane for ambulation. On examination, there was no ankylosis. He could stand for 15 minutes and could walk 1/4 mile with a cane and with discomfort. His disability prevented exercise and sports, had a severe effect on chores, shopping, recreation, and travel, had a moderate effect on dressing, had a mild effect on bathing, toileting, and grooming, and had no effect on feeding. In March 2008, a motor examination of the right lower extremity revealed hip flexion 5/5, knee flexion 5-/5, knee extension 5-/5, plantar flexion 5/5, and dorsiflexion 5-/5. See Compact Disc of Richmond VA Medical records, p. 839 of 1222. In May 2008, a motor examination showed 5/5 in the bilateral lower limbs. Discogenic maneuvers showed that hip flexion and pelvic rock were negative. See Compact Disc of Richmond VA Medical records, p. 771 of 1222. On VA examination in October 2009, the Veteran reported constant pain in the right femur at a level of 6 out of 10. The pain was relieved by Naproxen and Hydrocodone. He reported very limited walking and standing due to pain. On examination, posture and gait were normal. A leg length difference was not significant. The feet did not reveal signs of abnormal weight bearing or breakdown, callosities, or any unusual shoe wear pattern. He used a cane for walking. An examination of the right femur was within normal limits. The right hip had no edema, instability, abnormal movement, effusion, weakness, tenderness, redness, heat, deformity, malalignment, drainage, subluxation, or guarding of movement. Flexion of the right hip was to 125 degrees, extension was to 30 degrees, adduction was to 25 degrees, abduction was to 45 degrees, external rotation was to 60 degrees, and internal rotation was to 40 degrees. This represented a normal range of motion in all parameters. Repetitive motion was possible and there was no additional degree of limitation on repetition. Joint function was not additionally limited by pain, fatigue, weakness, a lack of endurance or incoordination. X-rays showed a healed proximal femoral diaphyseal fracture. There was no acute fracture. There was general osteopenia. There was narrowing of the medial hip joint and spurring of the inferior ischium. There were calcifications of the femoral artery unrelated to the claim. A skin examination showed two scars on the trunk. Additionally, as pertinent to this claim, there was a scar on the right thigh. The scar was 19.0 cm x 8.0 cm. It was not painful, there was no skin breakdown, and it was superficial with no underlying tissue damage. There was no inflammation, edema, or keloid formation. The scar was not disfiguring and did not limit motion or function. In September 2010, the Veteran testified before the undersigned AVLJ concerning his in-service injury. He further offered testimony about his current symptomatology, including his instability, need for a cane, and functional limitations including an inability to cut the grass. On VA examination in December 2010, the Veteran reported pain, a right leg limp, giving way, weakness, limited motion, stiffness, and instability. There was no false joint. On examination, there was no ankylosis. The Veteran could stand for 15-30 minutes and could walk for more than 1/4 mile but less than 1 mile. Right hip flexion was to 80 degrees with pain at 80 degrees. Extension was to 30 degrees with pain at 30 degrees, abduction was to 30 degrees with pain at 30 degrees. Adduction was to 25 degrees with pain at 25 degrees. Internal rotation was to 40 degrees with pain at 40 degrees. External rotation was to 60 degrees with pain at 60 degrees. There was no additional limitation of motion on repetitive use in any parameter. X-rays showed fusion hardware and laminecomy changes in the lumbar spine. Diffuse ostepenia limited the evaluation. Joint spaces were relatively well preserved without significant osteophyte formation. There was a chronic fracture deformity of the proximal right femoral diaphysis. The disability prevented sports, had a moderate effect on chores, shopping, exercise, and recreation, had a mild effect on traveling, and had no effect on feeding, bathing, dressing, toileting, and grooming. At the conclusion of the report, the examiner indicated there was no malunion of the right femur with marked knee or hip disability, no fracture of the surgical neck of either femur with false joint, and no nonunion without loose motion and with weightbearing preserved with the aid of a brace. There was also no fracture of the shaft or anatomical neck of the femur with nonunion and loose motion. In an October 2011 report from the VA Chronic Pain Clinic, the Veteran was noted to suffer from multilevel lumbar facet joint arthropathy, and degenerative joint disease of the bilateral hips and sacroiliac joints. A December 2010 x-ray of the hip showed a chronic fracture deformity of the proximal right femoral diaphysis. It was noted that he had been hospitalized one time that year for surgery for his condition. On VA examination in November 2012, the Veteran denied flare-ups. Muscle strength testing was normal in the right knee. He had a well-muscled right thigh, equal in circumference to the left, with atrophy of the right calf secondary to lumbar radiculopathy. He was noted to use a wheelchair and cane due to his lumbar spine disability. An X-ray revealed a healed comminuted fracture of the proximal right femoral shaft with overall normal alignment. The Veteran was noted to be retired. He reported problems with prolonged walking, heavy lifting, and doing yard work. At the conclusion of the report, the examiner stated the Veteran has no false joint or nonunion of the right femur. The aching in the thigh, shooting pains, paresthesias, and weakness were all attributed to right lumbar radiculopathy. Based on the foregoing, the Board finds no evidence to support that the Veteran's service-connected right femur disability is manifested by a fracture of the surgical neck of the femur with a false joint, or by nonunion of the femur. Therefore, the Board finds that the preponderance of the evidence is against the grant of a disability rating higher than 30 percent under DC 5255 for the Veteran's status post fracture of the right femur at any time during the appeal period. As regards the DeLuca factors, the Board acknowledges the evidence of pain on motion and the Veteran's functional limitations. Despite this, each VA examiner has found that repetitive movement did not change the Veteran's range of motion. The Veteran displayed a normal range of motion of the right hip on the VA examinations. The examiners did not document fatigue, weakness, a lack of endurance, or incoordination due to repetitive motion. Based on this evidence, the Board finds insufficient medical evidence to support that the Veteran's pain, weakness, or fatigability is so disabling as to actually or effectively limit hip motion to such an extent as to warrant assignment of a higher rating under 38 C.F.R. § 4.71a, Diagnostic Code 5255. Stated differently, neither the lay nor medical evidence establishes a functional loss that would approximate nonunion of the femur or false joint of the femur. The Board has considered the Veteran's service-connected right femur disability under all other potentially applicable diagnostic codes. Initially, the Board notes that in the March 1979 rating decision, the Veteran was awarded a separate-noncompensable rating under DC 5299-5250. This rating is not presently on appeal. Furthermore, the evidence does not show that the Veteran's disability is manifested by favorable or unfavorable ankylosis as is required for a higher rating under DC 5250. Diagnostic Code 5251 is inapplicable as 10 percent is the maximum rating available under the code. Likewise, DC 5252 does not assist in obtaining a higher disability rating, as flexion of the thigh has not been shown to be limited to 10 degrees. Diagnostic code 5253 is inapplicable as 20 percent is the maximum rating available. Finally, as there is no evidence of a flail hip joint, DC 5254 cannot provide the basis for a higher rating. The Board has also considered whether a separate evaluation is warranted for the right thigh scar that has been associated with the right femur disability. However, the scar has been described as healed. There is no lay or medical evidence of pain, tenderness or of a size that would warrant a compensable evaluation. The Board has specifically considered the appellant's pleadings and testimony. In essence, he has reported constant pain, limping, weakness, limited motion, stiffness, and instability. He is competent to report each manifestation. However, competence and credibility are different matters. Here, we have volumes of evidence and the Veteran's testimony is generally inconsistent with the more probative findings of the examiners. In sum, the pleadings are inconsistent with and less probative than the evidence that is provided by medical professionals. The findings of medical professionals, given their experience, education, and experience, are given more weight than the Veteran's lay statements. The criteria needed to support higher ratings require medical findings that are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). As such, the Veteran's assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support a higher rating than that already assigned. Under these circumstances, the Board finds that the record presents no basis for assignment of a higher rating for the status post right femur fracture under the applicable rating criteria. Additionally, the Board finds that there is no showing that the Veteran's service-connected right femur disability reflects so exceptional or so unusual a disability picture as to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b). The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996). Thun v. Peake, 22 Vet. App. 111 (2008). If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Thun, supra. Here, the Board finds the applicable schedular criteria appear to be fully adequate to rate the disability under consideration. The rating schedule fully contemplates the described symptomatology, and provides for ratings higher than that assigned based on more significant functional impairment. The Board cannot find that the rating schedule is impractical in addressing any of the Veteran's symptomatology. In essence, all of the Veteran's symptoms-namely, pain, limping, weakness, limited motion, stiffness, and instability -are contemplated by the diagnostic codes pertaining to the hip, and, as discussed above, have been considered in the assignment of the 30 percent rating. The Board points out that, even if the applicable rating criteria were deemed inadequate to evaluate the right femur, this disability alone has not objectively been shown to markedly interfere with employment (i.e., beyond that contemplated in the 10 percent rating assigned.) Rather, the record establishes that a combination of various medical conditions have rendered him unemployable; indeed, he is in receipt of a total rating based on individual unemployability (TDIU), effective February 24, 2006. Additionally, the evidence does not establish that the Veteran's right femur disability requires frequent hospitalization. Indeed, the October 2011 report noted that the Veteran had been hospitalized once over the past year. In the absence of evidence of any of the factors outlined above, the criteria for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) are not met. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). See also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Finally, the Board considered whether an inferred claim for a TDIU has been raised pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). As noted, the Veteran here was awarded a TDIU from February 24, 2006, the date of his claim for an increased rating for the right femur disability. He was assigned a temporary total schedular rating for his spine disability from November 7, 2007 to February 1, 2008. Effective February 1, 2008, his TDIU was resumed. As such, Rice is inapplicable. For all the foregoing reasons, the claim for a higher rating must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of a higher rating, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 53-56. ORDER An evaluation in excess of 30 percent for status post right femur fracture is denied. ____________________________________________ REBECCA FEINBERG Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs