Citation Nr: 1810087 Decision Date: 02/14/18 Archive Date: 02/27/18 DOCKET NO. 09-13 979 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to a rating in excess of 40 percent for residuals of a gunshot wound, compound comminuted fracture of the right femur, with muscle injury, knee disability, and one inch shortening of the right leg, and status post right total knee replacement, prior to November 12, 2012. 2. Entitlement to an initial rating in excess of 80 percent for right thigh above the knee amputation due to chronic recurrent osteomyelitis. 3. Entitlement to a total disability based on individual unemployability (TDIU) for the period from October 1, 2007, to October 23, 2012. REPRESENTATION Appellant represented by: Ralph J. Bratch, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M.G. Mazzucchelli, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The Veteran served on active duty from January 1956 to November 1957 and from October 1961 to September 1964. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a June 2007 RO rating decision that, in pertinent part, recharacterized the Veteran's service-connected right leg disability (then listed as residuals of a gunshot wound of the right femur with shortening and a history of osteomyelitis) as residuals of a gunshot wound of the right leg with injury to Muscle Group XIV, with a compound comminuted fracture of the right femur, shortening of the right leg, and status post right total knee replacement, and assigned a temporary total convalescent rating (38 C.F.R. § 4.30) for the period from August 4, 2006 to September 30, 2007, as well as a 40 percent rating, effective October 1, 2007. In June 2011, the Veteran testified at a Travel Board hearing at the RO. The VLJ that conducted that hearing is not available to participate in the current decision. In May 2017, the Veteran provided a written statement indicating that he did not wish to have a hearing before another VLJ. In August 2011, the Board remanded the case for further development. FINDINGS OF FACT 1. Prior to November 12, 2012, the Veteran was in receipt of the maximum rating under Diagnostic Code 5314. 2. Prior to November 12, 2012, the evidence showed that the Veteran had residuals of right total knee replacement that did not result in chronic residuals consisting of severe painful motion or weakness in the affected extremity. 3. Prior to November 12, 2012, the evidence showed that the Veteran had chronic osteomyelitis with discharging sinus or other evidence of active infection within the past five years. 4. Prior to November 12, 2012, the Veteran had slight instability of the right knee. 5. From November 12, 2012, the Veteran is in receipt of the maximum rating under Diagnostic Code 5161 for amputation at the upper third of the thigh. 6. For the period from October 1, 2007, to October 23, 2012, the Veteran's service connected disabilities did not render him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for residuals of a gunshot wound, compound comminuted fracture of the right femur, with muscle injury, knee disability, and one inch shortening of the right leg, and status post right total knee replacement, prior to November 12, 2012, based on injury to Muscle Group XIV or based on knee replacement, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.71a, 4.73, Diagnostic Codes 5055, 5314 (2017). 2. The criteria for a 20 percent rating for chronic osteomyelitis prior to November 12, 2012, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.43, 4.71, Diagnostic Code 5000 (2017). 3. The criteria for a 10 percent rating for right knee instability prior to November 12, 2012, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2017). 4. The criteria for a rating in excess of 80 percent for right thigh above the knee amputation due to chronic recurrent osteomyelitis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5161 (2017). 5. The criteria for a TDIU for the period from October 1, 2007, to October 23, 2012, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to provide notice of the information and evidence necessary to substantiate a claim. 38 U.S.C. § 5103 (a) (2012); 38 C.F.R. § 3.159 (b) (2017). A standard April 2007 letter satisfied the duty to notify provisions. VA also has a duty to provide assistance to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (c). The Veteran's service treatment records have been obtained. VA and private treatment records have also been obtained. The Veteran was provided VA medical examinations in April 2007, August 2016, and March 2017. The examinations, taken together, are sufficient evidence for deciding the claims. The reports are adequate as they are based upon consideration of the Veteran's prior medical history and examinations, describe the disability in sufficient detail so that the Board's evaluation is a fully informed one, and contain reasoned explanations. Thus, VA's duty to assist has been met. II. General Rating Principles Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is reviewed when making disability evaluations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 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," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. See id. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Read together, DC 5003 and 38 C.F.R. § 4.59 provide that painful motion due to degenerative arthritis, that is established by x-ray, is deemed to be limitation of motion and warrants the minimum compensable rating for the joint, even if there is no actual limitation of motion. Lichtenfels v. Derwinski; 1 Vet. App. 484, 488 (1991). The United States Court of Appeals for Veterans Claims (Court) has held that the provisions of 38 C.F.R. § 4.59 are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). During the pendency of the appeal, the Veteran underwent a right above the knee amputation in November 2012. A July 2016 rating decision granted an 80 percent rating for right thigh above the knee amputation due to chronic recurrent osteomyelitis from November 12, 2012. The Board must consider that rating as well as the rating of the residuals of a gunshot wound, compound comminuted fracture of the right femur, with muscle injury, knee disability, and one inch shortening of the right leg, and status post right total knee replacement, for the appeal period prior to November 12, 2012. During service in January 1957 the Veteran suffered an accidental gunshot wound to the right femur. Service connection was granted in February 1965 for residuals of gunshot wound, fracture, compound comminuted of right femur with knee disability and one inch shortening of right leg. A 30 percent rating was assigned from November 1964. A January 1988 rating decision recharacterized the disability as residuals of a gunshot wound of the right femur with one-inch shortening of right leg and history of osteomyelitis and abscess. The 30 percent rating was continued. In February 2007, the Veteran filed a claim for increase. The June 2007 rating decision on appeal recharacterized the disability as residuals of a gunshot wound of the right leg with injury to Muscle Group XIV, with a compound comminuted fracture of the right femur, shortening of the right leg, and status post right total knee replacement, and assigned a temporary total convalescent rating under 38 C.F.R. § 4.30 for the period from August 4, 2006 to September 30, 2007, as well as a 40 percent rating, effective October 1, 2007. The RO assigned the 40 percent rating pursuant to 38 C.F.R. § 4.73, Diagnostic Code 5314, which provides the criteria for rating injuries to Muscle Group XIV, specifically the thigh muscles. The Board notes that a 40 percent rating is the maximum schedular rating which can be assigned under Diagnostic Code 5314 for severe injury to Muscle Group IV. That rating contemplates a severe disability of Muscle Group XIV, whose function is noted to be extension of the knee; simultaneous flexion of hip and flexion of knee; tension of fascia lata and iliotibial band, acting with XVII in postural support of body; and acting with hamstrings in synchronizing hip and knee. 38 C.F.R. § 4.73, Diagnostic Code 5314 (2017). Therefore, a rating higher than 40 percent may not be assigned under that diagnostic code. The Veteran's attorney contends that for the period prior to November 12, 2012, the Veteran should have been evaluated under Diagnostic Codes 5055 (pertaining to knee replacement), as well as Diagnostic Code 5000 (pertaining to osteomyelitis). Diagnostic Code 5055 provides for a 100 percent disability rating for one year following implantation of prosthesis and a minimum 30 percent disability rating following that one-year period. Id. Where there are chronic residuals consisting of severe painful motion or weakness in the affected extremity, a 60 percent disability rating is warranted. Id. Diagnostic Codes 5260 and 5261 assign disability ratings based upon limitation of motion of the leg. Under DC 5260, limitation of flexion to 60 degrees is noncompensable, limitation of flexion to 45 degrees warrants a 10 percent disability rating, limitation of flexion to 30 degrees warrants a 20 percent disability rating, and limitation of flexion to 15 degrees warrants a maximum schedular 30 percent disability rating. Id., DC 5260. Under Diagnostic Code 5261, a 10 percent disability rating is allowed when extension is limited to 10 degrees, a 20 percent disability rating is allowed when extension of the leg is limited to 15 degrees, a 30 percent disability rating is warranted for extension limited to 20 degrees, and a maximum schedular 40 percent disability rating is warranted for extension limited to 30 degrees. Id., DC 5261. With regards range of motion, for rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees. Id., Plate II. Under Diagnostic Code 5257, knee impairment with recurrent subluxation or lateral instability is rated 10 percent when slight, 20 percent when moderate, and 30 percent when severe. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Osteomyelitis is rated under Diagnostic Code 5000, which pertains to acute, subacute, or chronic osteomyelitis. A 10 percent rating is assigned for inactive osteomyelitis, following repeated episodes, without evidence of active infection in past five years while a 20 percent rating is assigned for osteomyelitis with discharging sinus or other evidence of active infection within the past five years. A 30 percent rating is assigned for osteomyelitis with definitive involucrum or sequestrum, with or without discharging sinus. A 60 percent rating is assigned for frequent episodes of osteomyelitis with constitutional symptoms. A 100 percent rating is warranted for osteomyelitis of the pelvis, vertebrae, or extending into major joints, or with multiple localization or with long history of intractability and debility, anemia, amyloid liver changes, or other continuous constitutional symptoms. 38 C.F.R. § 4.71a, Diagnostic Code 5000. Note (1) to Diagnostic Code 5000 directs that a rating of 10 percent, as an exception to the amputation rule, is to be assigned in any case of active osteomyelitis where the amputation rating for the affected part is no percent. This 10 percent rating and the other partial ratings of 30 percent or less are to be combined with ratings for ankylosis, limited motion, nonunion or malunion, shortening, etc., subject, of course, to the amputation rule. The 60 percent rating, as it is based on constitutional symptoms, is not subject to the amputation rule. A rating for osteomyelitis will not be applied following cure by removal or radical resection of the affected bone. Note (2) to Diagnostic Code 5000 directs that the 20 percent rating on the basis of activity within the past five years is not assignable following the initial infection of active osteomyelitis with no subsequent reactivation. The prerequisite for this historical rating is an established recurrent osteomyelitis. To qualify for the 10 percent rating, two or more episodes following the initial infection are required. This 20 percent rating or the 10 percent rating, when applicable, will be assigned once only to cover disability at all sites of previously active infection with a future ending date in the case of the 20 percent rating. The evidence shows that the Veteran underwent a total right knee replacement on August 4, 2006. A December 2006 VA surgical follow-up note indicated that the Veteran's passive right knee range of motion was from +10 degrees extension to 75 degrees. Actively, extension was to zero degrees. The Veteran was advised to practice range of motion exercises and to ride his stationary bike. On a VA examination in April 2007, the Veteran reported that he had had constant pain in the knee since the gunshot wound, that over the years he had developed degenerative joint disease in the right knee, and that in 2006 a total knee replacement was performed. Current subjective complaints were of significant loss of range of motion, and constant pain in the area of the GSW/lower femur. The Veteran used a cane for ambulation. The Veteran denied any flare-ups, noting that his symptoms were constant. On examination, the knee joint was enlarged. There was a four centimeter leg length discrepancy, right leg shorter than the left. There was generalized tenderness over the medial and lateral knee and into the suprapatellar area/lower femur area. There was no effusion. Active range of motion of the right knee was from zero to 70 degrees with pain throughout. There was no crepitus. There was no additional limitation of motion following repetitive range of motion testing. The impression was total right knee arthroplasty with chronic deformity of the distal right femur. A June 2007 VA treatment record noted that the Veteran's range of right knee motion was from zero to 75 degrees. The Veteran reported that he was experiencing less pain than before his knee replacement surgery. An April 2008 private treatment record noted that the Veteran had chronic osteomyelitis above the total knee replacement. "The osteomyelitis is draining from the distal third of the femur." In September 2008 he was noted to have continuation of drainage in his right femur. The impression was abscess, osteomyelitis. In October 2008 the Veteran underwent open debridement of osteomyelitis. In November 2008, he was noted to be much improved. A February 2009 private treatment record noted that right knee range of motion was full. An August 2009 private treatment record noted that the Veteran had an unstable right knee that was "not causing him any problems at this time." A September 2009 private treatment record noted range of motion of the right knee from "full extension to 130 degrees of flexion." A December 2009 private treatment record noted midrange instability of the right knee, with good extension stability and good range of motion. The Veteran's attorney obtained an independent medical examination of the Veteran in September 2012. The physician's report stated that the Veteran had "severe painful knee motion, persistent and significant right knee weakness and decreased range of motion." The physician reported that on examination the Veteran "had a very mild flexion contracture of the right knee and a decrease in maximum flexion. Right knee range of motion was from 15 degrees of flexion to 95 degrees of flexion. The arc of motion between 15 degrees flexion to 95 degrees of maximum flexion was fixed because of tightness of the tissues round the knee and was not related to pain. He had slight pain throughout the entire range of motion of the right knee, but the worst pain was in the right thigh, not the right knee. Also, his pain was worst with weight bearing on the right lower extremity, much more than pain with range of motion of the right knee. For comparison, left knee range of motion was from 0 to 135 degrees of flexion without pain." An October 2012 treatment record noted that the Veteran had good knee range of motion. On November 17, 2012, the Veteran underwent a right high above knee amputation. An August 2016 VA examination noted that the Veteran had had an amputation of the upper third of the right thigh. Rating Prior to November 12, 2012 The currently assigned 40 percent rating under Diagnostic Code 5314 contemplates a severe level of disability affecting the functions of extension and flexion of the knee. Thus, the Veteran is not entitled to a separate rating under Diagnostic Code 5260 or 5261 for limitation of flexion or extension of the knee. The Board has considered whether rating the disability under Diagnostic Code 5055 instead of Diagnostic Code 5314 would be beneficial to the Veteran. However, a rating in excess of 40 percent under that code would require a showing of chronic residuals consisting of severe painful motion or weakness in the affected extremity. Such are not demonstrated here. While the September 2012 physician stated that the Veteran had "severe painful knee motion, persistent and significant right knee weakness and decreased range of motion," that physician further stated that the Veteran "had slight pain throughout the entire range of motion of the right knee, but the worst pain was in the right thigh, not the right knee. Also, his pain was worst with weight bearing on the right lower extremity, much more than pain with range of motion of the right knee." Thus, his own report does not support the physician's statement that the Veteran had severe painful motion of the knee. The other evidence of record likewise does not show such a level of painful motion. The April 2007 VA examination reported noted active range of motion of the right knee was from zero to 70 degrees with pain throughout, and no additional limitation of motion following repetitive range of motion testing; there was no indication that this represented severe painful motion. In June 2007, his range of right knee motion was from zero to 75 degrees and the Veteran reported that he was experiencing less pain than before his knee replacement surgery. In February 2009 right knee range of motion was noted as full. In September 2009 range of motion of the right knee from "full extension to 130 degrees of flexion." A December 2009 private treatment record noted good range of motion. In October 2012 he was noted to have good knee range of motion. Thus, as a 60 percent rating is not warranted under Diagnostic Code 5055, it is to the Veteran's benefit to continue the 40 percent rating under Diagnostic Code 5314 for the period prior to November 12, 2012, as this is a higher rating than the minimum 30 percent rating that would be assigned under Diagnostic Code 5055. An August 2009 private treatment record noted that the Veteran had an unstable right knee, and a December 2009 private treatment record noted midrange instability of the right knee, with good extension stability. As the April 2007 VA examination report did not include a specific finding with respect to stability, the Board finds that the record supports an additional 10 percent rating for the entire appeals period prior to November 12, 2012 based on slight lateral instability of the right knee. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Additionally, a 20 percent rating for the appeals period prior to November 12, 2012 based on osteomyelitis with discharging sinus or other evidence of active infection within the past five years is also warranted. The private treatment records in April 2008 that noted that the Veteran had chronic osteomyelitis above the total knee replacement, with osteomyelitis draining from the distal third of the femur; the September 2008 record noting continuation of drainage in his right femur, with an impression of abscess, osteomyelitis; and the October 2008 record noting that the Veteran underwent open debridement of osteomyelitis, support this rating. Rating From November 12, 2012 Since November 12, 2012, the Veteran has been assigned an 80 percent rating based on amputation at the upper third of the thigh. 38 C.F.R. § 4.71a, Diagnostic Code 5161. There is no contention that this rating is not adequate, and there is no basis for a higher rating. The Board further notes that the Veteran has also been granted special monthly compensation under 38 U.S.C. § 1114, subsection (k) on account of anatomical loss of one foot from November 12, 2012. III. TDIU The Veteran contends that a TDIU is warranted for the period from October 1, 2007 (when the temporary 100 percent rating following his total knee replacement ended) and October 23, 2012 (when a schedular 100 percent rating was assigned for chronic renal failure). Under the applicable criteria, a TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided that one of those disabilities is ratable 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Disabilities resulting from common etiology or a single accident will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16 (a). In this case, a TDIU is denied as the evidence does not show that the Veteran was precluded from a gainful occupation for the period in question by reason of his service-connected disabilities. On VA examination in April 2007, the Veteran was noted to be retired since 1992 from his usual occupation of postal manager. He stated that "They offered me an early out and I would have been eligible by age in less than one year." With respect to effects of the service connected disabilities on the Veteran's occupation, the examiner merely stated that the Veteran was "retired." The Veteran submitted a VA form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability in September 2016 on which he reported that he last worked the third quarter of 2007 as a teacher for Nosotros Academy in Tucson, AZ. He reported that the disabilities that prevented him from working were "leg injury, knee replacement, amputation, and heart." Employment verification from Nosotros Academy received in November 2016 noted the Veteran was employed from January 1999 to September 2007 as a teacher and that this employment ended due to retirement. During the period in question prior to June 9, 2011, the Veteran's service connected disabilities consisted of residuals, gunshot wound, compound comminuted fracture right femur with muscle injury, knee disability, and one inch shortening of the right leg, status post total knee replacement rated at 40 percent disabling; and residual scars of the right lower extremity rated as 10 percent disabling. As the Board has granted a 20 percent rating for osteomyelitis, and a 10 percent rating for right knee instability, the combined disability evaluation prior to June 9, 2011, is 60 percent. See 38 C.F.R. § 4.25. These disabilities stem from a single accident, thus the Veteran's claim for TDIU can be considered under 38 C.F.R. § 4.16 (a). For the period from June 9, 2011 to October 23, 2012, the combined rating was 90 percent, as the service connected disabilities now included right hip fracture rated as 60 percent, degenerative disc disease of the lumbar spine rated as 20 percent; and degenerative joint disease of the left leg, rated as 10 percent disabling. The record prior to October 23, 2012 does not demonstrate that the Veteran was incapable of all types of employment consistent with his prior occupations of school teacher and postal manager as a result of his service connected disabilities. The Veteran's attorney contends that the Veteran's disabilities would have precluded his employment as a teacher as he would have been unable to stand or walk for more than one-third of the workday, and his need for a cane or walker would have hindered his ability to lift or carry items or operate hand controls. Further, he contends that constant pain, a need to lie down to reduce pain, and a need for frequent medical treatment would have precluded the Veteran's ability to maintain even a less physically demanding occupation. On his Form 21-8940, the Veteran attributed his inability to work in part to amputation and to a heart problem. However, he is not service connected for a heart condition, and the leg amputation did not occur until 2012, after the period in question. With respect to the Veteran's attorney's contentions, the medical record does not support his statement that the Veteran would have been unable to maintain any employment due to his service connected disabilities. The April 2007 VA examiner noted that the Veteran's disabilities had a moderate effect on his chores and shopping, and a mild impact on recreation and travelling. The Veteran exhibited a mildly antalgic gait at that time. On the VA examination evaluating the Veteran's amputation in August 2016, the examiner noted that "employment tasks requiring standing, walking, and climbing would be limited by his right lower extremity amputation. In the presence of chronic narcotic use operation of machinery would be prohibited." The examiner did not indicate that the Veteran would be precluded from all types of employment. While this examination is outside the time range under consideration here, it is significant that even after amputation of the leg, the medical opinion evidence did not demonstrate unemployability. There is no compelling evidence showing that the Veteran was unemployable during the period from October 1, 2007, to October 23, 2012, solely due to service connected disabilities. In sum, the preponderance of the evidence is against the claim for a TDIU. As such, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, a TDIU is not warranted. ORDER A rating in excess of 40 percent for residuals of a gunshot wound, compound comminuted fracture of the right femur, with muscle injury, knee disability, and one inch shortening of the right leg, and status post right total knee replacement, prior to November 12, 2012, based on injury to Muscle Group XIV or based on knee replacement, is denied. A 20 percent rating for chronic osteomyelitis prior to November 12, 2012 is granted. A 10 percent rating for right knee lateral instability prior to November 12, 2012 is granted. A rating in excess of 80 percent for right thigh above the knee amputation due to chronic recurrent osteomyelitis is denied. A TDIU for the period from October 1, 2007, to October 23, 2012, is denied. ____________________________________________ D. JOHNSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs