Citation Nr: 1800773	
Decision Date: 01/05/18    Archive Date: 01/19/18

DOCKET NO.  07-10 047	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to service connection for an acquired psychiatric disability other than posttraumatic stress disorder (PTSD), to include as secondary to service-connected disability.

2.  Entitlement to service connection for a right ankle disability.

3.  Entitlement to service connection for a left ankle disability.

4.  Entitlement to service connection for a right foot disability.

5.  Entitlement to service connection for a left foot disability.

6.  Entitlement to an initial disability evaluation in excess of 10 percent for right knee disability.

7.  Entitlement to an evaluation in excess of 30 percent from January 17, 2006 to August 15, 2017, and in excess of 60 percent from August 15, 2017, for chronic sclerosing osteomyelitis and shortening of the right femur.
8.  Entitlement to a total disability evaluation based on individual unemployability due to service-connected disability (TDIU).


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

C.A. Skow, Counsel


INTRODUCTION

The Veteran served on active duty from September 1972 to September 1975 and December 1975 to April 1979. 

These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.

In April 2011, the Veteran testified before the undersigned Veterans Law Judge (VLJ).  A hearing transcript is associated with the record.

In August 2011 and April 2017, the Board remanded the appeal.

It is noted that, following the Board's April 2017 remand, the RO granted a 60 percent evaluation from August 15, 2017, under Diagnostic Code 5250 for chronic sclerosing osteomyelitis and shortening of the right femur based on 2017 VA examination findings for ankylosis.  As the award does not represent a full grant of the benefit sought on appeal, the claim remains in appeal status.  See AB v. Brown, 6 Vet. App. 35 (1993).  The claim has been recharacterized above to reflect the staged rating on appeal.

The issues of entitlement to service connection for right ankle disability, left ankle disability, right foot disability, left foot disability, and an acquired psychiatric disability (other than PTSD), along with the issue of entitlement to TDIU, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  For the entire appeal period, the right knee disability has not been manifested by flexion more nearly approximating 30 degrees or worse, or ankylosis; and the disability has not been manifested by limitation of extension, frequent episodes of "locking," instability/subluxation, cartilage removal, impairment of the tibia and fibula, or genu recurvatum.

2.  From January 17, 2006, to August 15, 2017, chronic sclerosing osteomyelitis and shortening of the right femur was not manifested by nonunion of femur with loose motion, ankylosis of the hip joint, compensable limitation of motion, or flail joint; throughout the appeal period, the disability has involved malunion only.

3.  From August 15, 2017, chronic sclerosing osteomyelitis and shortening of the right femur was not manifested by intermediate or unfavorable ankylosis of the hip joint; and the disability has not been manifested by nonunion of femur with loose motion.

4.  The Veteran's service-connected disabilities preclude him from performing the physical and/or mental acts required to obtain or retain substantially gainful employment.



CONCLUSIONS OF LAW

1.  The criteria for a disability evaluation in excess of 10 percent for right knee disability are not met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.71a, Diagnostic Code 5010-5260 (2017).

2.  The criteria for a disability evaluation in excess of 30 percent from January 17, 2006, to August 15, 2017, and in excess of 60 percent from August 15, 2017, for chronic sclerosing osteomyelitis and shortening of the right femur are not met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.71a, Diagnostic Code 5255-5250 (2017).

3.  The criteria for TDIU are met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.16, 4.18, 4.19 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  VA's duties to Notify and Assist

VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).

The Veteran has not alleged prejudice or any issues with the duty to notify or the duty to assist.  The Federal Court of Appeals has held that "absent extraordinary circumstances... it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...."  See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

Accordingly, the Board will address the merits of the claims.


II.  Evaluations

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006).  It is noted that competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").  In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. 498 (1995).

A.  Legal Criteria

Disability evaluations are determined by the application of the VA 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.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant.  38 C.F.R. § 4.3.  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25.  However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited.  38 C.F.R. § 4.14.

A disability may require re-evaluation in accordance with changes in a veteran's condition.  It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history.  38 C.F.R. § 4.1.  In evaluating any disability on the basis of limitation of motion, VA must consider the actual degree of functional impairment imposed by pain, incoordination, weakness, fatigue, and lack of endurance with repetitive motion.  38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).

Hyphenated codes are used when a rating under one Diagnostic Code requires use of an additional Diagnostic Code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen.  38 C.F.R. § 4.27.

The terms "mild," "moderate" and "severe" are not defined in the Schedule.  Likewise, the terms "slight," "moderate" and "marked" are not defined in the Schedule.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just."  38 C.F.R. § 4.6.

B.  Right Knee Disability

Service connection for right knee disability was established in a December 2004 rating decision.  A 10 percent evaluation was assigned effective from April 26, 2004, under Diagnostic Code 5010-5260.  The Veteran seeks an initial evaluation in excess of 10 percent.  He testified in April 2011 that his knee symptoms included swelling, pain, and a "tendency of locking up and slipping things down."  Hearing Transcript at 7-8.  He further reported that he has fallen when his knee locks and has pain with using stairs.  He reported having a knee brace but indicated that wearing it hurts his knee although he will "wear it on good days."  Hearing Transcript at 8.  He stated that he can squat at times.  Hearing Transcript at 9.

Traumatic arthritis is rated as degenerative arthritis.  38 C.F.R. § 4.71a, Diagnostic Code 5010.  Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint involved.  38 C.F.R. § 4.71a, Diagnostic Code 5003.  Limitation of flexion of the knee warrants a 10 percent rating if flexion is limited to 45 degrees; a 20 percent rating if flexion is limited to 30 degrees; and a 30 percent rating if flexion is limited to 15 degrees.  38 C.F.R. § 4.71a, Diagnostic Code 5260.  The standard ranges of motion of the knee are zero degrees of extension and 140 degrees of flexion.  38 C.F.R. § 4.71, Plate II.

Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against an evaluation in excess of 10 percent for right knee disability.  Neither the lay nor medical evidence shows that right knee disability more nearly reflects the criteria for a higher rating.  38 C.F.R. § 4.7.

Report of VA examination dated in August 2017 shows that the Veteran's right knee had 100 degrees of flexion on range of motion testing.  There was no additional loss of motion after 3 repetitions of motion and this examination was conducted during a flare-up.  Also, while there was objective evidence of pain with nonweight-bearing, the passive range of motion testing revealed the same findings as on active motion (i.e. 100 degrees of flexion).  Report of VA examination dated in March 2012 shows right knee flexion to 120 degrees (it was noted that pain did not begin until 120 degrees).  Earlier VA examination reports dated in November 2006 and March 2009 show right knee flexion (active) better than 30 degrees.  The evidence does not more nearly reflect flexion limited to 30 degrees or less.  Therefore, the schedular criteria for the assignment of a higher rating based on limitation of flexion are not met.

The Board has considered 38 C.F.R. §§ 4.40 and 4.45, along with the Veteran's subjective complaints of pain and limitation due to pain and flare-ups.  However, neither the lay nor the medical evidence shows additional disability beyond that contemplated by the currently assigned 10 percent disability evaluation.  The Board notes that pain alone does not constitute functional loss under VA regulations.  Mitchell v. Shinseki, 25 Vet. App. 32 (2011).  Moreover, the Board observes that the most recent VA examination of the right knee in 2017 was conducted during a flare-up and the disability at that time did not more nearly reflect functional loss equivalent to that needed for the assignment of a higher evaluation.  The examiner indicated that there was functional loss from pain, fatigue, weakness, lack of endurance, and incoordination, but he indicated that this did not result in additional loss of motion; but rather, flexion remained limited to 100 degrees.

The Board has carefully considered whether a separate evaluation is warranted based on the Veteran's report of "locking" symptoms.  The Veteran reported episodes of right knee "locking" causing him to fall during his 2011 Board hearing and on prior VA examinations 2012 and 2017.  However, objective findings on VA examination in 2012 and 2017 reflect that there are no findings for meniscal condition or frequent episodes of joint locking.  Similarly, VA treatment records dated during the appeal period reflect no complaints or findings for frequent episodes of the right knee joint locking.  Given the absence of any history for frequent locking when seeking treatment for his knee, coupled with the negative VA examination findings, the Board finds that the criteria for a higher or separate rating is not warranted under Diagnostic Code 5258 based on cartilage impairment with frequent episodes of "locking," pain, and joint effusion.  38 C.F.R. § 4.71a, Diagnostic Code 5258.

Additionally, the criteria for an evaluation in excess of 10 percent are not met under any other potentially applicable provision of the schedule.  The Veteran's right knee disability has not been manifested by ankylosis, recurrent subluxation or lateral instability, limitation of extension, tibia and fibula impairment, or genu recurvatum.  Therefore, a higher or separate rating is not warranted under Diagnostic Codes 5256, 5257, 5259, 5261, 5262 or 5263.  38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5257, 5259, 5261, 5262, and 5263.

The Board accepts that the Veteran is competent to report his symptoms.  However, whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran's complaints coupled with the medical evidence.  Both the lay and medical evidence are probative in this case.  Although the Veteran may believe that he meets the criteria for the next higher disability rating, his complaints along with the medical findings do not meet the schedular requirements for a higher evaluation than now assigned, as explained and discussed above.

Accordingly, the claim of entitlement to an evaluation in excess of 10 percent for right knee disability is denied.  The Board finds that there is no basis to "stage" the rating as the evidence shows no distinct period where the disability exhibited symptoms that would warrant a different rating.  See Fenderson v. West, 12 Vet. App. 119, 126 (2001); Hart v. Mansfield, 21 Vet. App. 505 (2007).  There is no doubt to resolve.  38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Gilbert, supra.

C.  Right Femur Disability Status Post Fracture with Leg Shortening

Service connection for right femur disability was established in a March 1981 rating decision.  A 10 percent evaluation was assigned effective from January 28, 1981, under Diagnostic Code 5255.  Subsequently, the RO granted a claim for increase and assigned a 30 percent evaluation effective from January 17, 2006.

In April 2017, the Board denied an evaluation in excess of 10 percent for right femur disability with leg shortening for the period of time prior to January 17, 2006, and remanded the matter of increase from January 17, 2006.  During remand status, in a September 2017 rating decision, the RO granted a 60 percent evaluation under Diagnostic Code 5250 (ankylosis) for right femur disability with chronic sclerosing osteomyelitis and leg shortening, effective from August 15, 2017 (date of examination).
The Veteran seeks higher disability evaluations.  He testified that his right leg problem causes him to fall and that he has a lot of pain.  See Hearing Transcript at 5-6.

Diagnostic Code 5250 provides a 60 percent rating for favorable ankylosis of the hip in flexion at an angle between 20 degrees and 40 degrees and slight adduction or abduction; a 70 percent rating for intermediate ankylosis; and a 90 percent rating for extremely unfavorable ankylosis, with the foot not reaching the ground, or necessitating crutches.  38 C.F.R. § 4.71a, Diagnostic Code 5250.

Diagnostic Code 5255 provides an 80 percent rating for impairment of femur involving fracture of shaft or anatomical neck of the femur, with nonunion, with loose motion (spiral or oblique fracture).  A 60 percent rating is warranted where there is impairment of the femur with nonunion, without loose motion, weight bearing preserved with aid of brace, or for fracture of surgical neck of the femur with false joint.  A 30 percent rating is warranted where there is malunion of the femur with marked knee or hip disability.  38 C.F.R. § 4.71a, Diagnostic Code 5255.

Normal range of hip flexion is from 0 to 125 degrees.  Normal hip abduction is from 0 to 45 degrees.  38 C.F.R. § 4.71a, Plate II.

Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against an evaluation in excess of 30 percent from January 17, 2006 to August 15, 2017, and in excess of 60 percent from August 15, 2017, for right hip and thigh disability.  Neither the lay nor medical evidence shows that a right hip/thigh disability more nearly reflects the criteria for a higher rating for either period of time.  38 C.F.R. § 4.7.

Report of VA examination dated in November 2006 reflects complaints of "sharp constant severe pain in thigh" aggravated by movement or sitting.  The Veteran reported flares in cold weather.  He used 2 crutches, could sit for 30-45 minutes, stand 25-30 minutes, and walk 15-20 feet with use of crutches and a wheelchair.  Objectively, gait was antalgic.  Report of VA examination dated in March 2009 reflects complaints of right thigh pain treated with Etodolac twice daily for pain.  He reported a tendency to fall and uses a walker.  The diagnosis was residuals of old healed fracture of right femur with contour deformity and sclerosis.  It was noted that the Veteran also had bilateral hip degenerative arthritis.

Report of VA examination dated in May 2015 reflects a diagnosis for status post fracture, right femur, with chronic sclerosing osteomyelitis.  The Veteran complained that he falls a lot, uses a rolling walker, has difficulty walking and sitting, and experiences chronic pain.  He reported an inability to perform daily chores due to hip symptoms and concentration problems due to pain.  He stated that his church member help him with meals and were providing him a ramp to get in and out of his house.  The range of motion was as follows:  Flexion 0 to 105 degrees; extension 0 to10 degrees; abduction 0 to 25 degrees; adduction 0 to 15 degrees; external rotation 0 to 30 degrees; and internal rotation 0 to 20 degrees.  The Veteran was able to cross his legs on adduction.  There was pain on range of motion testing in all planes and pain with weight bearing.  Crepitus was not shown.  The Veteran was unable to perform repetitive use test due pain.  There was reduced muscle strength in the right hip (3/5), but not atrophy.  One-half inch leg shortening was found on right side.  The Veteran uses a wheelchair and walker as a normal mode of locomotion.  The Veteran did not have remaining function so diminished that amputation with prosthesis would work equally well.

Report of VA examination dated in August 2017 reflects a diagnosis for status post fracture, right femur, with chronic sclerosing osteomyelitis and shortening of one-half inch.  The Veteran reported symptoms of pain, stiffness, joints locking, and falls.  He treated with physical therapy and pain medications.  He reported flare-ups, described as "Pain more intense, cannot walk without walker."  He described functional impairment as difficulty with walking and standing.  The range of motion was as follows:  Flexion 0 to 120 degrees; extension 0 to10 degrees; abduction 0 to 25 degrees; adduction 0 to 20 degrees; external rotation 0 to 25 degrees; and internal rotation 0 to 5 degrees.  The Veteran was able to cross his legs on adduction.  The examiner stated that abnormal range of motion contributed to functional loss described as difficulty with walking and standing, an inability to bend, and the right leg becoming easily fatigued.  There was pain on range of motion testing in all planes and pain with weight bearing.  There was objective evidence of crepitus.  The Veteran was unable to perform repetitive use test due to right lower extremity discomfort during the initial measurements.  The examiner noted that this examination was conducted during a flare-up; that the findings were medically consistent with the Veteran's description of functional loss during flare-up; and that pain, weakness, fatigability or incoordination significantly limit functional ability with flare-ups.  The examiner reported that the range of motion during flare-ups was as the same as indicated above as this exam was conducted during a flare-up.  Contributing factors to disability were listed as deformity, disturbance of locomotion, interference with sitting, and interference with standing.  There was reduced muscle strength in the right hip (4/5) and atrophy at 5 centimeters (cm) above the patella (circumference of normal side was 42 cm and right side was 35 cm).  Ankylosis was shown-"Favorable, in flexion at an angle between 20 and 40 degrees, and slight abduction or adduction."  Neither intermediate nor unfavorable ankylosis was shown.  There was leg length discrepancy with the right leg measuring one-half inch less than the left leg.  The Veteran did not have remaining function so diminished that amputation with prosthesis would work equally well.  The examiner noted that there is objective evidence of pain when the right hip is used in non-weight bearing and that passive range of motion was the same as active range of motion.  The examiner explained that the Veteran has malunion of the femur with moderate hip disability on the right, and that the Veteran had not ever had "nonunion" of the joint.  The examiner found that the Veteran had "Malunion of the femur with marked knee or hip disability since January 17, 2006."

From January 17, 2006, to August 15, 2017, chronic sclerosing osteomyelitis and shortening of the right femur was not manifested by nonunion of femur with loose motion, ankylosis of the hip joint, compensable limitation of motion, or flail joint; throughout the appeal period, the disability has involved malunion only and marked hip impairment.  From August 15, 2017, chronic sclerosing osteomyelitis and shortening of the right femur was not manifested by intermediate or unfavorable ankylosis of the hip joint; and the disability has not been manifested by nonunion of femur with loose motion.

The Board has considered 38 C.F.R. §§ 4.40 and 4.45, and DeLuca v. Brown, 8 Vet. App. 202 (1995), along with the Veteran's complaints of pain and limitation due to pain and flare-ups.  However, neither the lay nor the medical evidence shows additional disability beyond that contemplated by the currently assigned disability evaluations.  The Board acknowledges the Veteran's credible report of pain; however, pain alone does not constitute functional loss under VA regulations.  Mitchell v. Shinseki, 25 Vet. App. 32 (2011).  Also, to the extent that the Veteran argues that a higher evaluation is warranted based on leg length discrepancy, the Board finds that the functional impairment from this finding is contemplated by the ratings under Diagnostic Codes 5255 and 5250.  There is no uncompensated impairment shown.

Additionally, the criteria for a separate or higher evaluation are not met under any other potentially applicable provision of the schedule.  From January 17, 2006, to August 15, 2017, neither the lay nor the medical evidence reflects ankylosis, compensably disabling limitation of motion, or hip flail joint.  From August 15, 2017, neither the lay nor the medical evidence reflects compensably disabling abduction/adduction or flail joint.  It is noted that the Veteran is already separated rated for surgical scar of right thigh.  See Rating Decision (September 2017).

For the period from August 15, 2017, the Board has considered whether separate ratings are warranted under both Diagnostic Codes 5250 and 5255.  However, the Board finds that the assignment of a rating based on ankylosis under Diagnostic Code 5250 and based on marked hip disability under Diagnostic Code 5255 would violate the rule against pyramiding under 38 C.F.R. § 4.14 since a veteran may not be compensate twice for the same symptomatology and there are no shown separate and distinct manifestations left uncompensated.  See Brady v. Brown, 4 Vet. App. 203, 206 (1993).  See also, Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993).  The current evaluation under Diagnostic Code 5250 provides the greater benefit here.

The Board accepts that the Veteran is competent to report his symptoms.  However, whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran's complaints coupled with the medical evidence.  Both the lay and medical evidence are probative in this case.  Although the Veteran may believe that he meets the criteria for the next higher disability rating, his complaints along with the medical findings do not meet the schedular requirements for a higher evaluation than now assigned, as explained and discussed above.

Accordingly, the claim of entitlement to an evaluation in excess of 30 percent from January 17, 2006, to August 15, 2017, and in excess of 60 percent from August 15, 2017, for chronic sclerosing osteomyelitis and shortening of the right femur is denied.  The Board finds that there is no basis to further "stage" the ratings as the evidence shows no distinct period where the disability exhibited symptoms that would warrant different ratings.  See Fenderson v. West, 12 Vet. App. 119, 126 (2001); Hart v. Mansfield, 21 Vet. App. 505 (2007).  There is no doubt to resolve.  38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Gilbert, supra.

D.  TDIU

TDIU is granted where service-connected disabilities are so severe that the Veteran is unable to secure or follow a substantially gainful occupation.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16.  The central inquiry is whether service-connected disabilities alone are of sufficient severity to produce unemployability.  Hatlestad v. Brown, 5 Vet. App. 524 (1993).  Consideration is given to the Veteran's level of education, special training, and previous work experience.  Van Hoose v. Brown, 4 Vet. App. 361 (1993); 38 C.F.R. §§ 3.341, 4.16, 4.19.

In this case, since August 15, 2017, the Veteran has met the schedular criteria for TDIU pursuant to 38 C.F.R. § 4.16(a).  He has service connected disability that the meets the numeric standard and sufficient physical limitations to preclude substantially gainful employment.  The Veteran is service-connected for status post fracture, right femur, with chronic sclerosing osteomyelitis and leg shortening (60% from August 15, 2007); degenerative joint disease, right knee (10% from April 26, 2004); degenerative joint disease, left knee (10% from September 23, 2004); traumatic scars, both eyebrows (0% from January 28, 1981); and scar, right thigh (0% from August 15, 2017).  His combined disability rating is 80 percent from August 15, 2017.

The record reflects that the Veteran is educated with 4 years of high school and 2 years of college; he reported that he last worked in 1996.  The record further shows that the Veteran has past work experience as a security officer, custodial worker, delivery driver, and dietary specialist.  The Veteran noted that he is unable to obtain and/or retain gainful employment due to his service-connected disorders and the medications taken for those disorders.  See VA Form 21-8940 (May 2006).

Recent VA examinations dated in 2017 shows that the Veteran experiences physical limitation due to his service-connected disabilities of the lower extremities, which limit his ability to sit, walk, stand, and bend.  It was noted that the Veteran's disabilities caused him to be easily fatigued.  Furthermore, the Veteran uses either a wheelchair or walker for locomotion constantly.  The record shows that the Veteran relies on others for assistance with meals and has difficulty leaving his home because of the need for a walker and/or wheelchair.  The Veteran reports that his service-connected conditions cause pain; he Veteran reports that his pain and the medication taken for his service-connected conditions cause attention difficulties.  The Board finds that his symptoms and the limiting effects of his medications are credible in view of the clinical findings of record.  The Board observes that the need for assistive devices when locomoting precludes the Veteran from carrying in his hands or arms items that might typically be associated with sedentary type work.  The record further shows that the Veteran has a history of falling, which necessitates the use of his wheelchair and/or walker.

Because sedentary work generally involves sitting most of the time according to the U.S. Department of Labor, and given that VA medical records indicate that this would be difficult for the Veteran as much as prolonged standing or walking in view of the functional limitations arising from his lower extremity service-connected disorders, the evidence suggests that the Veteran is unable to perform the physical and/or mental acts required for gainful employment.

Affording the Veteran all benefit of any doubt, the Board finds that the functional limitations presented by the symptoms associated with the Veteran's service-connected disorders preclude him from performing the physical and/or mental acts required to obtain and sustain employment that is other than marginal.  Accordingly, TDIU is granted.


ORDER

An evaluation in excess of 10 percent for right knee disability is denied.

An evaluation in excess of 30 percent from January 17, 2006, and in excess of 60 percent from August 15, 2017, for chronic sclerosing osteomyelitis and shortening of the right femur is denied.

TDIU is granted.


REMAND

A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand.  Where remand orders of the Board are not complied with, the Board errs in failing to insure compliance.  Stegall v. West, 11 Vet. App. 268 (1998).

In April 2017, the Board remanded the claims of entitlement to service connection for a psychiatric disability (other than PTSD), bilateral ankle disability, and bilateral foot disability for VA medical opinions.  Although VA medical opinions were obtained in May and June 2017, the medical opinions are inadequate.  See Stefl v. Nicholson, 21 Vet. App. 102, 124-25; Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008) (medical examination reports must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two).


With regard to the foot/ankle conditions, a June 2017 VA medical opinion reflects that "It is less likely than not the veteran has direct service-connected, secondary service-connected or aggravated bilateral ankle and foot conditions."  The rationale was stated as "There was no evidence found for a foot/ankle condition during active duty service.  There is no evidence of or nexus established between foot/ankle and knee/femur conditions secondarily or by aggravation."  The Board finds that the VA medical opinion is bereft of any explanation for the conclusion that there is no link between the foot/ankle disorders shown and the Veteran's service-connected lower extremity disorders.  Also, the examiner does not address the Veteran's theory of entitlement, which was expressly requested in the Board's prior remand.  The Board seeks a medical opinion from the medical professional, not a legal opinion.

With regard to psychiatric disorder, a May 2017 VA medical opinion reflects that:

Since the pt. was discharged from service in 1979 and there is not continuing care/treatment for depression from 1979 to 2012, then the diagnosis of depression in 3/12 is not etiologically related to the patient's service that took place over 30 years prior.  Further, the pt. was screened for depression at the CAVHCS on at least two occasions prior to 3/12 which refutes the need for any ongoing treatment.

The Board finds that the medical opinion provided is unresponsive to the Board's prior remand, which asked whether the Veteran has had a psychiatric disorder during this appeal that is related to service; or proximately due to service-connected disability of the lower extremities; or aggravated (permanently worsened) by service-connected disability of the lower extremities.

Accordingly, the case is REMANDED for the following action:

1.  All updated pertinent treatment records should be obtained and associated with the claims file.  All records/responses received must be associated with the electronic file.  

2.  The Veteran should be scheduled for a VA psychiatric examination.  The claims file should be reviewed by the examiner and the review noted in the examination report.  A complete medical history should be obtained.  The examiner should address the following:

(a)  Whether it is as likely as not (50 percent or greater probability) that any psychiatric disorder shown during this appeal (other than PTSD) is etiologically related to service (event, injury, or disease); 

The examiner should consider the Veteran's November 1978 motor vehicle accident.

(b)  Whether it is as likely as not (50 percent or greater probability) that psychiatric disorder (other than PTSD) shown during this appeal is either:
(i)  Proximately due to service-connected disability of the right hip and thigh (femur), right knee, and/or left knee; or 

(ii)  Aggravated by service-connected disability of the right hip and thigh (femur), right knee, and/or left knee.  

"Aggravation" is defined as a permanent worsening of the nonservice-connected disability beyond that due to the natural disease process as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability.

The Veteran's medical history should be accepted as truthful unless otherwise shown by the record.  The medical opinion must include a complete rationale for all opinions and conclusions reached.  That is, the examiner should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusions.  

If an opinion cannot be expressed without resort to speculation, the examiner should so indicate and discuss why an opinion is not possible to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge.

2.  The Veteran should be scheduled for a VA examination of his feet and ankles.  The claims file should be reviewed by the examiner and the review noted in the examination report.  A complete medical history should be obtained.  The examiner should address the following:

(a)  Whether it is as likely as not (50 percent or greater probability) that any ankle and/or foot disorder shown during this appeal is etiologically related to service (event, injury, or disease); 

The examiner also should address the Veteran's theory that his conditions were caused by injury sustained from general exertion during active duty and cold weather training.

(b)  Whether it is as likely as not (50 percent or greater probability) that any ankle and/or foot disorder shown during this appeal is either:

(i)  Proximately due to service-connected disability of the right hip and thigh (femur), right knee, and/or left knee; or 

(ii)  Aggravated by service-connected disability of the right hip and thigh (femur), right knee, and/or left knee.

"Aggravation" is defined as a permanent worsening of the nonservice-connected disability beyond that due to the natural disease process as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability.

The Veteran's medical history should be accepted as truthful unless otherwise shown by the record. The medical opinion must include a complete rationale for all opinions and conclusions reached.  That is, the examiner should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusions.

If an opinion cannot be expressed without resort to speculation, the examiner should so indicate and discuss why an opinion is not possible to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge.

4.  After ensuring any other necessary development has been completed, the AOJ should readjudicate the claims.  If the benefits sought are not granted, the Veteran should be furnished a Supplemental Statement of the Case and given the requisite opportunity to respond before the case is returned to the Board.
By this remand, the Board intimates no opinion as to any final outcome warranted.

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

The claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




______________________________________________
KRISTI L. GUNN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs