Citation Nr: 18161178 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 17-03 681 DATE: December 28, 2018 ORDER A rating in excess of 10 percent for malunion of the left femur with arthritis of the left knee is denied. A rating in excess of 10 percent for residuals of a left tibia and fibula fracture is denied. An initial compensable rating for a left leg scar, status/post fracture of left tibia, fibula, and femur is denied. FINDINGS OF FACT 1. The Veteran had active service from July 1965 to December 1967. 2. Throughout the period on appeal, the left femur disability has resulted in involvement of no more than one major joint, and slight knee or hip disability. 3. Throughout the period on appeal, the left tibia and fibula fracture has included pain resulting in no more than slight knee or ankle disability. 4. Throughout the period on appeal, the one linear left leg scar has not been characterized as painful or unstable. CONCLUSIONS OF LAW 1. For the entire period on appeal, the criteria for a rating in excess of 10 percent for malunion of the left femur with arthritis of the left knee have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 4.1-4.14, 4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5010-5255 (2017). 2. For the entire period on appeal, the criteria for a d rating in excess of 10 percent for residuals of a left tibia and fibula fracture have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 4.1-4.14, 4.40, 4.45, 4.71a, DC 5262 (2017). 3. For the entire period on appeal, the criteria for entitlement to an initial compensable rating for a left leg scar status/post fracture of the left tibia, fibula, and femur have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.118, DCs 7804, 7805 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Left Femur The Veteran’s left femur disability has been rated under DCs 5010-5255, indicating that his impairment of the femur is rated based upon traumatic arthritis. Pursuant to DC 5010, the criteria for the evaluation of traumatic arthritis direct that the evaluation be conducted under DC 5003, which states that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, DCs 5003, 5010. In the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. The above ratings are to be combined, not added under DC 5003. Under DC 5255, malunion of the femur with moderate knee or hip disability warrants a 20 percent rating. Further, under VA regulations, normal range of motion in the hip is flexion from 0 to 125 degrees, and abduction from 0 to 45 degrees. 38 C.F.R. § 4.71a, Plate II. Accordingly, in order to warrant a higher, 20 percent rating, the evidence must establish: • X-ray evidence of arthritis involving two or more major joint groups with occasional incapacitating exacerbations (20 percent under DC 5003); • malunion of the femur with moderate knee or hip disability (20 percent under DC 5255); or • flexion of the thigh limited to 30 degrees or less (20 percent under DC 5252); • limitation of flexion of the knee to 30 degrees (20 percent under DC 5260). Turning to the evidence, the Veteran was afforded a VA examination in October 2015 and complained of flare-ups and swelling with prolonged walking, which were alleviated by rest. Left knee extension was to 115 degrees. There was no evidence of left knee or hip disability, instability, ankylosis, or subluxation. Further, there was no X-ray evidence suggesting involvement of two or more major joint groups, and no evidence of incapacitating exacerbations. He also denied the use of assistive devices. At a March 2017 VA examination, the Veteran was diagnosed with malunion of the left femur with slight knee disability and arthritis of the left knee. There was no evidence of any associated hip disability. He complained of flare-ups in rainy and hot weather, and difficulty walking for prolonged periods of time. Range of motion measurements for the left knee revealed improvement with flexion to 124 degrees. There was no objective evidence of localized tenderness, pain on palpation, or crepitus, but there was pain on weight-bearing. There was no swelling, weakened movement, deformity, atrophy, instability, disturbance of locomotion or interference with sitting or standing and he denied the use of any assistive devices. Given the evidence as discussed above, the preponderance of the medical evidence weighs against the claim. First, an increased rating in excess of 10 percent is not warranted based upon DC 5010 or 5255. As noted above, degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. In the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joint groups with occasional incapacitating exacerbations warrants a 20 percent rating. Next, the knee is considered one major joint. 38 C.F.R. § 4.45. As such, the Veteran’s left knee disability cannot meet the criteria for an increased 20 percent rating under DC 5010, as it specifically requires evidence of arthritis involving two or more major joint groups, with occasional incapacitating exacerbations. Further, under DC 5255, a 20 percent rating is warranted for malunion of the femur with moderate knee or hip disability. However, neither the October 2015 or March 2017 VA examinations, or any concurrent VA or private treatment records have reflected a moderate disability of the knee or hip. Importantly, there was no instability, ankylosis, or subluxation of the left knee, and the Veteran repeatedly denied the use of assistive devices. His most significant symptom was pain, and by his reports, the pain occurred only after prolonged standing or walking consistent with a slight disability. In addition, the Veteran’s left knee flexion was, at worst, to 115 degrees during the relevant appeal period, which does not warrant an increased rating under DC 5260. Finally, while the Veteran’s range of motion measurements for his left thigh were not recorded, suggesting that the examiners found no evidence of hip disability in their examinations. For both of the VA examinations during the relevant appeal period, the Veteran’s left knee was the affected joint. Therefore, the medical evidence does not support a higher rating. Residuals of Left Tibia & Fibula Fracture The Veteran is currently in receipt of a 10 percent rating for his left tibia disability under DC 5262. For a higher rating, there must be evidence of the following: • limitation of flexion to 30 degrees (20 percent under DC 5260); • limitation of extension to 15 degrees (20 percent under DC 5261); or • malunion of the tibia and fibula with moderate knee or ankle disability (20 percent under DC 5262). Other diagnostic codes pertaining to the knee are DC 5256 (ankylosis), DC 5258 (dislocation of semilunar cartilage), DC 5259 (removal of semilunar cartilage), and DC 5263 (genu recurvatum). These disorders are not shown in the record for the period on appeal, such that these diagnostic codes do not provide a basis on which to assign a higher rating. Upon review of the record, a rating in excess of 10 percent is not warranted for the Veteran’s left tibia disability at any time during the period on appeal. First, an October 2015 VA examination revealed left knee flexion from 0 to 115 degrees, and extension from 115 to 0 degrees. He was able to perform repetitive use testing without additional functional loss or range of motion after three repetitions. There was no ankylosis, recurrent subluxation or any instability, with a notation only of intermittent swelling. No meniscal conditions were observed, despite a meniscectomy having been performed in 1965. Besides slight pain on overuse, there were no other indications of more than slight knee or ankle disability. In March 2017, the Veteran was afforded another VA examination which revealed flexion from 0 to 124 degrees, and extension from 124 to 0 degrees, indicating an improvement in condition. There continued to be no additional function loss or range of motion decrease after repetitive use testing. The examiner found no atrophy, ankylosis, swelling, deformity, instability, atrophy, disturbance of locomotion, or interference with sitting or standing and the Veteran denied the use of any assistive devices. The examiner opined that his disability resulted in him being unable to stand for prolonged periods of time or do any heavy lifting. Importantly, the Veteran’s left tibia was not productive of a moderate disability picture during the period on appeal. Instead, his primary symptom was pain on prolonged standing, which did not cause additional limitation of motion or require the use of assistive devices. Instead, he remained capable of ambulating without assistance and performing the activities of daily living with minimal limitations, which included some difficulty with standing and lifting heavy weights. VA treatment records also do not establish that he sought ongoing treatment for this disability at any time. In fact, there was notable improvement in his left tibia disability between the October 2015 and March 2017 examinations. As such, the Veteran’s left tibia was productive of a slight disability picture during the period on appeal, which corresponds with the criteria for a 10 percent rating per DC 5262. Left Leg Scar The Veteran’s left leg scar status/post fracture of the left tibia, fibula and femur has been rated under DC 7805. This code provides that scars (including linear scars) not otherwise rated under DCs 7800-7804 are to be rated based on any disabling effects not provided for by those codes. In addition, the effects of scars otherwise rated under DCs 7800-7804 are to be considered. The Board has considered DCs 7800, 7801 and 7802, but as the Veteran’s scar is on his left leg, not a burn scar, not found to be deep or nonlinear, and not superficial, they are not for application. Instead, in order for an increased rating to be warranted, the evidence must show: • a scar not of the head, face, or neck, that is superficial and nonlinear, which is 144 square inches (929 sq. cm.) or greater (10 percent DC 7802). • one or two scars that are unstable or painful (10 percent under DC 7804). Note (1) provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) for that code provides that if one or more scars are both unstable and painful, 10 percent be added to the evaluation based on the total number of unstable or painful scars. Note (3) under that provides that scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an evaluation under DC 7804, when applicable. Currently, the Veteran has been assigned a noncompensable rating under DC 7805. After considering the totality of the record, the preponderance of the evidence weighs against a compensable rating for the Veteran’s left leg scar. Specifically, in a March 2017 VA examination, only one linear scar was identified on the left anterior aspect of his lower leg. The scar measured 25 centimeters (cm.) by 1 cm., and was neither painful nor unstable. The examiner also found no evidence that this scar resulted in any other impairment of the left leg. The remainder of the record likewise does not reflect that the scar is either painful or unstable, or greater than 39 sq. cm. in size. There is no also indication that higher alternative or separate ratings are warranted under other diagnostic code criteria. No exceptional or unusual impairment due to this service-connected disability is shown. Therefore, the medical evidence does not support a compensable rating. With respect to all the claims, the Board has considered the Veteran’s lay statements that his disabilities are worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, Layno v. Brown, 6 Vet. App. 465, 470 (1994), he is not competent to identify a specific level of disability of these disorders according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s disabilities has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which these disabilities are evaluated. Moreover, as the examiners have the requisite medical expertise to render a medical opinion regarding the degree of impairment caused by the disabilities and had sufficient facts and data on which to base the conclusions, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran’s subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable and the appeals are denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Yacoub, Associate Counsel