Citation Nr: 18161155 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 96-38 989 DATE: December 28, 2018 ORDER Entitlement to an effective date of August 7, 1996, for service connection for a right knee disability is granted. Entitlement to an increased rating for residuals of a right femur fracture, currently rated as 20 percent disabling, is denied. REMANDED Entitlement to an initial rating in excess of 10 percent for right knee degenerative joint disease is remanded. FINDINGS OF FACT 1. The Veteran’s representative submitted a claim for service connection for a right knee disability on August 7, 1996. 2. The residuals of the Veteran’s right femur fracture have not presented as a shortening of the bone of the lower extremity of 2.5 inches or greater, or as a malunion, nonunion, or fracture of the surgical neck of the femur at any time during the appeal period. CONCLUSIONS OF LAW 1. The criteria for an effective date of August 7, 1996, for service connection for a right knee disability have been met. 38 U.S.C. § 5110; 38 C.F.R. §3.400. 2. The criteria for a rating in excess of 20 percent for the residuals of a right femur fracture have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5255, 5275. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1980 to December 1982. This matter is before the Board of Veterans’ Appeals (Board) on appeal from August 1995 and October 2012 rating decisions. The August 1995 decision continued a 20 percent rating for residuals of right femur fracture. An October 2012 rating decision granted service connection for right knee degenerative joint disease (DJD) with a 10 percent rating, effective December 23, 2011. In May 2001, the Board denied an increased rating in excess of 20 percent for residuals of a fracture of the right femur. The Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court). In an April 2004 memorandum decision, the Court vacated the May 2001 Board decision and remanded the case so VA could provide adequate notice to the Veteran under the Veterans Claims Assistance Act (VCAA). The Board remanded the appeal in October 2008, May 2010, and November 2013 for additional development, to include issuance of VCAA notice, a request for VA examinations, and for issuance of a statement of the case (SOC) to address the appeal for an earlier effective date and a higher initial rating for right knee DJD. In September 2017, the Board denied increased ratings in excess of 20 percent for residuals of a fracture of the right femur and 10 percent for right knee DJD, but granted an earlier effective date of July 20, 2010, for service connection for a right knee disability. The Veteran again appealed to the Court, which issued an October 2018 Joint Motion for Partial Remand (JMPR) vacating the portions of the September 2017 Board decision that denied entitlement to an effective date prior to July 20, 2010, for the grant of service connection for right knee DJD and increased ratings for right knee DJD and the residuals of a right femur fracture. While the Veteran’s appeal to the Court was pending, a June 2018 rating decision granted service connection for right knee limitation of extension with an evaluation of 10 percent effective May 14, 2018, and simultaneously decreased her rating for right knee DJD to 0 percent effective the same date. On October 3, 2018, the Veteran’s attorney submitted a request to reserve the full 90 days following the return of this appeal to the Board following the Court remand. On November 6, 2018, the Board received a brief from the Veteran’s attorney requesting the Board make a decision on the issues on appeal without further delay. The Board finds this written request to be a voluntary waiver of this 90-day reservation. See Clark v. O’Rourke, 30 Vet. App. 92 (2018). Earlier Effective Date for Service Connection Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The date of receipt is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). Prior to March 24, 2015, VA defined a “claim” as “a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit.” 38 C.F.R. § 3.1(p) (2014); 79 Fed. Reg. 57,696 (Sept. 25, 2014) (effective March 24, 2015) (eliminating the informal claims). An informal claim was defined as “[a]ny communication or action indicating an intent to apply for one or more benefits.” 38 C.F.R. § 3.155(a). Thus, the essential elements for a claim, whether formal or informal, were “(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing” for the relevant time period for this appeal. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). Here, VA received a statement from the Veteran’s representative on August 7, 1996, that requested consideration of a claim for service connection for a right knee condition, among others. This written statement shows a clear intent to apply for benefits related to the Veteran’s right knee disability, and therefore meets the criteria of a formal claim. The Veteran has argued that earlier statements submitted in January and August 1995 express an intent to apply for benefits related to the Veteran’s right knee disability. The January 1995 statement explicitly asks for an increased rating for her right leg condition based on shortening of the bones of her right lower extremity. The Veteran’s knee is discussed in relation to the need for a clothing allowance because her knee brace was wearing through her clothing. This statement expresses no clear intent to claim service connection of her right knee or obtain additional benefits based on any disability other than shortening of her right leg. In August 1995, the Veteran submitted another request for a clothing allowance related to her use of a knee brace. The same month, she submitted a notice of disagreement (NOD) and request for a hearing related to the August 1995 rating decision that denied her claim for an increased rating for her right leg disability. In this NOD, she states that she has a continuing problem with her right knee giving out while walking. However, no other statements were provided that show she intended this statement as a claim for entitlement to service-connection for the right knee. Rather, this statement is most naturally understood as an explanation for her basis of disagreement with the denial of her existing claim for an increased rating. For these reasons, the Board finds the August 2016 statement to be the earliest written communication from the Veteran or her representative that expresses an intent to apply for benefits and identifies service connection for the right knee as the benefit being sought. Having determined the Veteran submitted a valid claim, the Board must now determine whether entitlement to service connection for the right knee disability was present at the time of claim or arose at a later date. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Agency of Original Jurisdiction (AOJ) issued a February 1997 rating decision acknowledging the Veteran’s claim for a right knee disability, but found the Veteran’s knee condition was part of the overall right femur fracture residuals condition for which the Veteran was receiving compensation. As discussed further below, the Veteran’s right femur fracture residuals condition has been rated since July 1, 1987 under Diagnostic Code 5275 for shortening of the bones of the lower extremity. Prior to that time, it was rated under Diagnostic Code 5255 for malunion of the femur, which includes consideration of resulting hip and knee disability as a factor of the rating criteria. Conversely, the criteria in DC 5275 do not incorporate any resulting knee disability. As the AOJ indicated in the February 1997 rating decision, the Veteran’s right knee pain itself would have warranted a minimal evaluation of 10 percent if rated as a separate disability. The Veteran’s knee instability symptoms are also well-documented in her medical records and lay statements from this time, including a January 1997 VA examination, which described complaints of right knee pain with throbbing and giving out. The exam likewise notes hyperextension of the knee joint and states the mediolateral and anteroposterior sides of the knee felt somewhat loose. Based on this evidence, the Board finds the Veteran’s statement received August 7, 1996, included a service connection claim for a knee disability. At that time, the Veteran’s medical records indicated she was experiencing knee pain and instability of the knee as the result of her service-connected right femur fracture, and these symptoms were no longer being accounted for in her rating for the residuals of that injury under DC 5275. Thus, the Board finds the criteria for an effective date of August 7, 1996, for service connection for a right knee disability have been met. Increased Rating – Residuals of Right Knee Fracture Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Where service connection has been granted and the assignment of an initial evaluation is disputed, separate evaluations may be assigned for different periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant’s ordinary activity. 38 C.F.R. § 4.10. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The Veteran contends that she is entitled to a rating in excess of 20 percent for the residuals of her right femur fracture, currently rated as shortening of the right leg, evaluated under Diagnostic Code 5275. Under these criteria, a 20 percent rating is warranted for shortening of the bones of the lower extremity of 2 to 2.5 inches; a 30 percent rating is warranted for 2.5 to 3 inches; a 40 percent rating is warranted for 3 to 3.5 inches; a 50 percent rating is warranted for 3.5 to 4 inches; and a 60 percent rating is warranted for more than four inches. 38 C.F.R. § 4.71a, DC 5275. The medical evidence of record clearly shows that the reduction in length of the Veteran’s leg has never been measured as being greater than 2.5 inches. Compensation and Pension (C&P) Examinations from December 2014 and May 2018 each measured a difference of 4 centimeters between the lengths of the Veteran’s legs, which is approximately 1.6 inches. Earlier June 2009, November 1999, January 1997, and June 1995 VA examiners all measured the shortening of the Veteran’s right leg as 1.75 inches. The Veteran has argued that her right leg disability should alternatively be rated under Diagnostic Code 5255. Under these criteria, a 30 percent rating is assigned for malunion of the femur with marked knee or hip disability. 38 C.F.R. § 4.71a, DC 5255. A 60 percent rating is assigned for impairment of 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. Id. An 80 percent rating is assigned for impairment of femur, fracture of shaft or anatomical neck, with nonunion, with loose motion (spiral or oblique fracture). Id. In support of a higher rating, the Veteran cites records from 1984 that document a “malunion” in the right femur. A November 1986 VA examination noted the installation of an intramedullary nail in June 1982 to treat a non-union of the Veteran’s femur, along with the removal of this nail in April 1984. The examiner noted a prior scan revealed a partially healed fracture, and a new scan of the right thigh showed a healed fracture of the shaft of the femur. No malunion was suggested in the exam report. Subsequent VA examinations in July 1988, June 1995, November 1999, June 2009, July 2010, February 2012, December 2014, and May 2018 examined the Veteran’s femur and consistently showed a healed fracture of the shaft of the femur with a residual callus formation. None of these exams describe a malunion of the femur. The November 1999 and June 2009 examiners reported the Veteran’s femur was in good alignment with no evidence of malalignment. The most recent examiners in February 2012, December 2014, and May 2018 were specifically asked about malunion of the femur, and none of these examination reports indicate that a malunion was found. Rather, the primary residual noted in each of these reports was a shortening of the Veteran’s leg. Other potential diagnostic codes have been considered. The Veteran already receives compensation for right thigh conditions rated under DC 5251 through 5253 for limitation of extension of the thigh, limitation of flexion of the thigh, and impairment of the thigh, respectively. No other diagnostic codes directly address musculoskeletal disabilities of the thigh or femur. The Board notes the issue of an extraschedular evaluation for the residuals of the right leg fracture was raised by the Court in the October 2018 JMPR. In determining whether an extraschedular evaluation should be considered, the Board must first consider whether there is an exceptional or unusual disability picture, which occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran’s service-connected disability. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, the Board must next consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-16. When these two elements are met, the appeal must be referred for an extraschedular evaluation. Here, the residuals of the Veteran’s right femur fracture have produced a variety of symptoms that affect the functioning of her leg. These various symptoms are accounted for by her multiple ratings for secondary disabilities under other diagnostic codes, as noted above. To evaluate these symptoms again for extraschedular consideration would be impermissible pyramiding. See 38 C.F.R. § 4.14. Therefore, with symptoms of limited range of motion, pain, and weakness of the knee and thigh evaluated under her other ratings, the Veteran’s disability picture does not appear exception or unusual. The shortening of her leg due to the residuals of her fracture is directly contemplated by DC 5275, and the remaining residuals are addressed by other schedular rating criteria. The record reveals no residuals of the right femur fracture that are not contemplated by one of these diagnostic codes. Thus, referral for an extraschedular evaluation is not warranted. For these reasons, the Board finds the preponderance of the evidence is against finding a malunion of the Veteran’s femur, shortening of the bone of the Veteran’s lower extremity greater than 2.5 inches, or any other disability that would support a rating in excess of 20 percent for the Veteran’s service-connected residuals of a right femur fracture at any point in the appeal period. Therefore, the benefit-of-the-doubt doctrine does not apply, and a rating in excess of 10 percent must be denied. See Gilbert v. Derwinski, 1 Vet. App 49 (1990). REASONS FOR REMAND The Board has granted an earlier effective date of service connection for the Veteran’s right knee disability. The AOJ should assign an initial rating for the period prior to July 20, 2010, before the Board adjudicates the merits of the initial rating assigned for the disability to ensure the Veteran is afforded due process. See Disabled Am. Veterans v. Sec’y of Veterans Affairs, 327 F.3d 1339, 1347 (Fed. Cir. 2003). The matters are REMANDED for the following action: Assign an initial rating for the Veteran’s right knee disability for the period from August 7, 1996 to July 20, 2010. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Pitman, Associate Counsel