Citation Nr: 1333685 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 05-28 790A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to a rating higher than 30 percent for residuals of a left distal femur fracture with left knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Terrence T. Griffin, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from July 1977 to July 1980. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in March 2005 of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2007, the Veteran appeared at a hearing before a Decision Review Officer. A transcript of the hearing is in the Veteran's file. In June 2010, July 2012 and May 2013, the Board remanded the claim for additional development. As the requested development has been completed, no further action is necessary to comply with the Board's remand directive. Stegall v. West, 11 Vet. App. 268, 271 (1998). This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT Before July 21, 2012, the residuals of a left distal femur fracture were marked left knee disability manifested by ankylosis of the knee in flexion from 0 to 10 degrees; from July 21, 2012, the residuals of a left distal femur fracture are marked left knee disability manifested by ankylosis of the knee in flexion at 60 degrees. CONCLUSIONS OF LAW Before July 21, 2012, the criteria for a rating higher than 30 percent for residuals of a left distal femur fracture with marked left knee disability had not been met; from July 21, 2012, the criteria for 60 percent for residuals of a left distal femur fracture with left knee ankylosis in flexion have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5255 and 5256 (2013). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting veteran-specific notice as to the effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre- and post- adjudication VCAA notice by letters in May 2004, in May 2008, in June 2010, in January 2012, and in July 2012. As for the content of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (to the extent of pre-adjudication VCAA notice); of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim); and of Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment). To the extent that the VCAA notice came after the initial adjudication, the timing of the notice did not comply with the requirement that the notice must precede the adjudication. The timing error was cured by content-complying VCAA notice after which the claim was readjudicated as evidenced by the supplemental statement of the case, dated in December 2012. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.). Duty to Assist VA has made reasonable efforts to identify and obtain relevant records in support of the claim. 38 U.S.C.A. § 5103A. The RO has obtained service records, VA records, and private medical records. The Veteran was afforded VA examinations. As the reports of the VA examinations are based on the Veteran's medical history and described the disability in sufficient detail so that the Board's decision is a fully informed one, the examinations are adequate. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. Evidence In May 2005 on VA examination, the Veteran complained of left knee pain, stiffness, and swelling. The Veteran required a knee brace and cane. There was severe ligament instability. Extension was limited to 5 degrees and flexion to 70 degree. There was 3 cm. difference in leg length. The diagnosis was posttraumatic degenerative arthritis of the left knee with inter- and supra- condylar fracture of the distal left femur. In October 2007 on VA examination, the Veteran complained of knee pain, weakness, stiffness, swelling, fatigue, and lack of endurance. The Veteran continued to wear a knee brace and to use a cane. Extension was to zero degrees and flexion was to 48 degrees. In July 2010 on VA examination, the VA examiner stated that the Veteran needed a knee brace for stability and that the left lower extremity was about 1 inch shorter than the right lower extremity. The VA examiner characterized the left knee as ankylosed with flexion between zero and 10 degrees without recurrent subluxation or lateral instability. Service department records show that in April 2012 active range of motion was 45 to 55 degrees. The physician stated that the knee was essentially fused. In June 2012, the range of motion was the same. In July 2012 on VA examination, the left knee was ankylosed in flexion to 42 degrees. The left lower extremity was 3 inches shorter than the right lower extremity. In February 2013, a private physician reported that flexion ended at 45 degrees and extension ended at 45 degrees or greater. In June 2013 on VA examination, the left knee was fixed in flexion at 60 degrees. General Rating Policy Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). Rating Factors for a Femur and Knee Disability Rating factors for a disability of the musculoskeletal system include functional loss. A disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Functional loss may also be due to weakness or atrophy. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). As for joints, the factors of disability reside in reductions of the joints normal excursion of movements in different planes. Factors for considerations include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, atrophy of disuse, instability of station, disturbance of locomotion, interference with sitting and standing, and weight-bearing. 38 C.F.R. § 4.45; DeLuca, 8 Vet. App. at 206-07. Also with periarticular pathology, painful motion is factor to be considered. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Rating Criteria The residuals of a left distal femur fracture with left knee disability are rated 30 percent under Diagnostic Code 5256 favorable angle ankylosis with flexion between 0 to 10 degrees. The criterion for next higher rating, 40 percent, is ankylosis in flexion between 10 degrees and 20 degrees. The criterion for the next higher rating, 50 percent, is ankylosis in flexion between 20 degrees and 45 degrees. The criterion for the next higher rating, 60 percent, is extremely unfavorable ankylosis in flexion at an angle of 45 degrees or more. Other potentially applicable Diagnostic Codes are Diagnostic Codes 5255, 5260, 5261, and 5275. Under Diagnostic Code 5255, for impairment of the femur, malunion of the femur with marked knee or hip disability is rated 30 percent. Under Diagnostic Code 5260 (limitation of flexion), the criterion for a 10 percent rating is flexion limited to 45 degrees. The criterion for the next higher rating, 20 percent, is flexion limited to 30 degrees. The criterion for the next higher rating, 30 percent, is flexion limited to 15 degrees. Under Diagnostic Code 5261, limitation of extension to 5 degrees is noncompensable. Extension to 10 degrees is rated 10 percent. Extension to 15 degrees is rated 20 percent. Extension to 20 degrees is rated 30 percent rating. Extension to 30 degrees is rated 40. Extension to 45 degrees is rated 50 percent. Normal knee motion is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Separate ratings may be assigned for limitation of flexion and for extension. VAOPGCPREC 9-04 (September 17, 2004). A separate rating may also be assigned for subluxation or instability of the knee under Diagnostic Code 5257. VAOPGCPREC 23-97 (July 1, 1997). Under Diagnostic Code 5257, the criterion for a 10 percent rating are slight recurrent subluxation or lateral instability of the knee. Moderate recurrent subluxation or lateral instability is rated 20 percent. Severe recurrent subluxation or lateral instability is rated 30 percent. Under the Note to Diagnostic Code 5275, a rating for leg length shortening does not apply to ratings for a fracture in the same extremity. Merits Before July 2012, the 30 percent rating was the maximum rating for impairment of the femur with marked knee disability under Diagnostic Code 5255. The 30 percent rating was also the maximum rating for instability under Diagnostic Code 5257. A separate rating under Diagnostic Codes 5255 and 5257 on the basis of knee disability, resulting in instability, would be pyramiding, which is not permitted. 38 C.F.R. § 4.14 (pyramiding is rating the same disability, or the same manifestation of a disability, under different diagnostic codes, which is to be avoided). In May 2005 on VA examination, flexion was limited to 70 degrees and extension was limited to 5 degrees. In October 2007 on VA examination, flexion was limited to 48 degrees and extension was limited to 0 degrees. In February 2013 extension was noted as being 45 degrees or greater and flexion was limited to 45 degrees. In June 2013, flexion was noted as being 60 degrees and extension was limited to 45 degrees or greater. The findings of flexion limited to either 60 degrees or 48 degrees does not more nearly approximate or equate to flexion limited to 45 degrees the criteria for a 10 percent rating under Diagnostic Code 5260, considering functional loss due to pain of painful movement, weakness, atrophy, swelling, instability of station, disturbance of locomotion, interference with sitting and standing, and weight-bearing under 38 C.F.R. §§ 4.40 , 4.45, 4.59, and repetitive motion, as joint function was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. To the extent the February 2013 VA Disability Benefits Questionnaire reports flexion limited to 45 degrees, the Board finds this to be inconsistent with the overall disability picture when considered in the context of all other evidence, medical and lay, associated with the file. On VA examination in July 2012, the left knee was ankylosed in flexion to 42 degrees. Further private April 2012 and June 2012 treatment records note the knee as being essentially fused; however, on each occasion, range of motion was reported as being from 45 to 55 degrees. Additionally, the February 2013 and June 2013 VA Disability Benefits Questionnaires also document extension to 45 degrees or greater and flexion limited to 45 degrees. Given the presence of knee motion, in the absence of ankylosis in flexion between 10 degrees and 20 degrees, the criteria for a 40 percent rating under Diagnostic Code 5256 were not met. The findings of extension limited to either 5 degrees or 0 degrees do not more nearly approximate or equate to extension limited to 10 degrees the criteria for a 10 percent rating under Diagnostic Code 5261, considering functional loss due to pain of painful movement, weakness, atrophy, swelling, instability of station, disturbance of locomotion, interference with sitting and standing, and weight-bearing under 38 C.F.R. §§ 4.40, 4.45, 4.59, and repetitive motion, as joint function was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. In July 2010 on VA examination, the left knee as essentially favorably ankylosed in flexion between zero and 10 degrees, which does not more nearly approximate or equate to ankylosis in flexion between 10 degrees and 20 degrees under Diagnostic Code 5256. And evidence of left leg length shortening (3 cm. difference or 1 inch or 3 inches) under Diagnostic Code 5275 cannot be rated separately as the shortening of the left leg is in the same extremity as the femur fracture. On VA examination in July 2012, the left knee was ankylosed in flexion at 42 degrees. On VA examination in June 2013, the left knee was ankylosed in flexion at 60 degrees, which when considered in the context of all evidence of record, most closely approximates the criterion for the maximum rating under Diagnostic Code5256, 60 percent, ankylosis in flexion at an angle of 45 degrees or more. The Veteran has a separate rating of 50 percent for limitation of extension. Under the amputation rule, the combined rating for a disability of an extremity shall not exceed the rating for amputation of the extremity at the elective level, were amputation to be performed. 38 C.F.R. § 4.68. The rating schedule establishes that, with regards to a lower extremity, an amputation at the middle or lower third of the thigh is assigned a 60 percent rating. Diagnostic Code 5162. Therefore to the extent that the combined rating for limitation of extension and flexion may exceed the amputation of the left lower extremity at the elective level, were amputation to be performed, compensation is limited by the 38 C.F.R. § 4.68. Conclusions Before July 2012, the schedular criteria for a rating higher than 30 percent under Diagnostic Codes 5255, 5256, 5257, 5260, 5261, and 5275 have not been met. From July 2012, the schedular criteria for a 60 percent rating under Diagnostic Codes 5256 based on ankylosis in flexion are met. Extraschedular Consideration Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for a rating. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the disability levels and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned ratings are adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Comparing the current disability levels and symptomatology to the Rating Schedule, the degree of disability is encompassed by the Rating Schedule and the assigned schedule ratings are adequate. In other words, the Board finds that the rating criteria reasonably describe the Veteran's disability and symptomatology, and the Veteran does not have any symptomatology not already encompassed by the Rating Schedule. For this reason, referral for an extraschedular rating is not warranted under 38 C.F.R. § 3.321(b)(1). A Total Disability Rating for Compensation based on Individual Unemployability The Veteran does not raise and the record does not reasonably raise the claim for a total disability rating for compensation based on individual unemployability. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (in a claim for increase, where the claim for a total disability rating is reasonably raised by the record, the claim is not a separate claim, but a part of a claim for increase). ORDER Before July 2012, a rating higher than 30 percent for residuals of a left distal femur fracture with left knee disability is denied. From July 2012, a 60 percent for residuals of a left distal femur fracture with left knee disability on the basis of ankylosis in flexion is granted, subject to 38 C.F.R. § 4.68 (the amputation rule). ______________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs