Citation Nr: 1335892	
Decision Date: 11/05/13    Archive Date: 11/13/13

DOCKET NO.  06-02 975	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUE

Entitlement to an initial compensable disability rating for service-connected residuals of surgical repair of decubitus ulcer with removal of right femoral head (right femur disability).


REPRESENTATION

Appellant represented by:	Paralyzed Veterans of America, Inc.


ATTORNEY FOR THE BOARD

D. Van Wambeke, Counsel



INTRODUCTION

The Veteran served on active duty from June 1971 to May 1974.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which granted service connection pursuant to 38 U.S.C.A. 1151 for the right femur disability and rated it as noncompensable.  

The Veteran presented testimony at a personal hearing before a Decision Review Officer (DRO) in September 2005.  A transcript is of record.  

The claim was remanded by the Board for additional development in September 2010, April 2012 and January 2013.  It has been returned for appellate review.  The record before the Board consists of paper claims files and an electronic file known as Virtual VA.

The issue of entitlement to service connection for a back disorder, claimed as secondary to the service-connected residuals of surgical repair of decubitus ulcer with removal of right femoral head (right femur disability), has been raised by the record and previously discussed by the Board in conjunction with the claim for an initial compensable rating for residuals of surgical repair of decubitus ulcer with removal of right femoral head (right femur disability).  See e.g., September 2005 hearing transcript; January 2006 VA Form 9.  The Board has now determined that this claim is separate from the claim currently before it, as the manifestations of back pain are better addressed on a secondary basis rather than as part of the increased rating claim.  This issue, as well as the assertions raised that a back condition has caused pain and discomfort in the shoulders and neck, see January 2006 VA Form 9, are referred to the Agency of Original Jurisdiction (AOJ) for appropriate action.

Review of the VA treatment records located in the Veteran's Virtual VA file reveals that it appears the Veteran is seeking an increased rating for his service-connected posttraumatic stress disorder (PTSD).  See e.g., August 2011 psychology telephone contact note.  This issue has not been adjudicated by the AOJ.  The Board does not have jurisdiction over it and it too is referred to the AOJ for appropriate action.  


FINDING OF FACT

The removal of the Veteran's right femoral head has resulted in right hip flail joint.  


CONCLUSION OF LAW

The criteria for an initial rating of 80 percent, and not higher, for service-connected residuals of surgical repair of decubitus ulcer with removal of right femoral head (right femur disability) have been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5254 (2013). 


REASONS AND BASES FOR FINDING AND CONCLUSION

VA's Duties to Notify and Assist

Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an AOJ, VA is required to notify the appellant of the information and evidence necessary to substantiate the claim and the division of responsibilities in obtaining evidence.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim.  Dingess v. Nicholson, 19 Vet. App. 473 (2006). 

In this case, the Veteran is disagreeing with the rating assigned after service connection has been granted and an initial disability rating and effective date have been assigned.  Thus the service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  Dingess, 19 Vet. App. at 490; Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  

VA has obtained service treatment records, assisted the Veteran in obtaining evidence, afforded the Veteran appropriate examinations to determine the severity of his disability, and afforded the Veteran the opportunity to give testimony.  All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. 

The Board acknowledges at this juncture that its January 2013 remand directives were not substantially complied with.  More specifically, the examiner who conducted the June 2012 VA examination did not provide an addendum opinion that addressed the Veteran's complaints of back pain, curvature of the spine, and his back brace, with discussion as to whether it is at least as likely as not that his back problems are caused by his right femur disability.  The examiner also did not discuss all functional impairment caused by the right femur disability, including a determination as to whether the functional impairment causes the disability to rise to the level of slight, moderate, or marked disability, without consideration of the non-service-connected paraplegia.  As the Board is granting an 80 percent rating pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5254, however, and given that the next highest rating does not contemplate the information not supplied in the February 2013 addendum opinion provided by the June 2012 VA examiner, there is no prejudice to the Veteran in proceeding without obtaining the previously-requested information.  

VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time.


Increased Rating

Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Separate rating codes identify various disabilities.  38 C.F.R. Part 4.  In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records.  See generally 38 C.F.R. §§ 4.1, 4.2.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7. 

Where the rating appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings."  See Fenderson v. West, 12 Vet. App. 119 (1999).

Service connection for residuals of surgical repair of decubitus ulcer with removal of right femoral head was granted in an October 2004 rating decision that effectuated the Board's September 2004 grant of entitlement to compensation for disability related to removal of the right femoral head pursuant to 38 U.S.C.A. § 1151.  The RO assigned a noncompensable rating under 38 C.F.R. § 4.71a, Diagnostic Code 5255, effective November 6, 1996.  The RO noted that a compensable rating was not warranted because excision of the right femoral head did not result in additional disability and there had been no change in the Veteran's condition since a 1975 motorcycle accident.  The Board notes that this determination directly contradicts its finding that additional disability resulted from the removal of the Veteran's right femoral head.  See September 2004 Board decision.  

The Veteran contends that he is entitled to a compensable rating for service-connected residuals of surgical repair of decubitus ulcer with removal of right femoral head.  The Board notes that the Veteran is paraplegic as a result of a 1975 motorcycle accident not associated with his service.  At his September 2005 RO hearing, however, the Veteran testified that it was his service-connected disability that caused him functional difficulty.  In particular, the Veteran testified that he, due to his service connected right femur disability, had no control over his right leg, such that when transferring from the wheelchair to his bed, he would lose control of the leg, and it would fall off of the side of the bed, thereby pulling him off of the bed.  The Veteran also reported pain associated with the service connected disability, in that since the surgery he experienced pain from just above his waist and up his back.  The Veteran is competent to provide lay statements regarding the symptoms he experiences.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 

Diagnostic Code 5255 provides the rating criteria for impairment of the femur.  A 10 percent rating is provided for malunion of the femur with slight knee or hip disability.  A 20 percent rating is provided for malunion of the femur with moderate knee or hip disability.  A 30 percent rating is provided for malunion of the femur with marked knee or hip disability.  60 percent ratings are assigned for fracture of surgical neck of the femur with false joint and for fracture of shaft or anatomical neck of the femur with nonunion, without loose motion, weightbearing preserved with aid of brace.  An 80 percent rating is provided for fracture of shaft or anatomical neck of the femur with nonunion, with loose motion (spiral or oblique fracture).  

The assignment of a particular diagnostic code is dependent on the facts of a particular case.  See Butts v. Brown, 5 Vet. App. 532, 538 (1993): see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology.  In reviewing the claim for a higher rating, the Board must consider which diagnostic code or codes are most appropriate for application in the Veteran's case and provide an explanation for the conclusion. 

For the reasons to be discussed more fully below, the Board finds that the Veteran's service-connected residuals of surgical repair of decubitus ulcer with removal of right femoral head is more appropriately evaluated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5254 than Diagnostic Code 5255, as these criteria reflect the Veteran's predominant disability picture.

During the June 2012 VA hip and thigh conditions Disability Benefits Questionnaire (DBQ), the VA examiner indicated that the Veteran had right hip flail joint.  The examiner also commented that the Veteran had flaccid hip joint from operation.  A flail joint is defined as one showing abnormal mobility.  See Dorland's Illustrated Medical Dictionary 964 (30th ed. 2003).  The Board acknowledges that this was the first mention of right hip flail joint in the record, to include VA examinations conducted in March 2004 and October 2010, but that it presumes the condition has been present since the operation on which entitlement to compensation for disability related to removal of the right femoral head pursuant to 38 U.S.C.A. § 1151 is based.  Given this finding, the Board finds that the Veteran is entitled to the sole 80 percent rating provided under Diagnostic Code 5254, which provides the criteria for hip flail joint.  

The Board has considered other provisions which might provide for a higher evaluation with respect to the issue on appeal, including 38 C.F.R. §§ 4.40 and 4.45, as they relate to pain and any resulting functional impairment due to pain.  See DeLuca v. Brown, 8 Vet. App. 202 (1995).  Diagnostic Code 5254, however, does not evaluate the Veteran's right femur disability with respect to range of motion; therefore, sections 4.40 and 4.45, with respect to pain on motion, are not applicable.  See Johnson v. Brown, 9 Vet. App. 7, 11 (1996).  



ORDER

A rating of 80 percent, and not higher, for residuals of surgical repair of decubitus ulcer with removal of right femoral head (right femur disability) is granted pursuant to Diagnostic Code 5254, subject to the laws and regulations governing the payment of monetary benefits. 



____________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs