Citation Nr: 20046864 Decision Date: 07/13/20 Archive Date: 07/13/20 DOCKET NO. 12-17 922A DATE: July 13, 2020 ORDER Entitlement to a 10 percent evaluation prior to January 20, 2010, for service-connected residuals from a femoral stress fracture of the right lower extremity is denied. Entitlement to a 10 percent evaluation prior to January 20, 2010, for service-connected residuals from a femoral stress fracture of the left lower extremity is denied. The appeal of entitlement to a 10 percent evaluation based on multiple, noncompensable service-connected disabilities under 38 C.F.R. § 3.324 is dismissed. REMANDED Entitlement to a disability rating in excess of 10 percent for service-connected residuals from a femoral stress fracture of the right lower extremity is remanded. Entitlement to a disability rating in excess of 10 percent for service-connected residuals from a femoral stress fracture of the left lower extremity is remanded. Entitlement to a compensable disability rating for service-connected left thigh limitation of extension is remanded. Entitlement to a compensable disability rating for service-connected left thigh limitation of flexion is remanded. Entitlement to a compensable disability rating for service-connected right thigh limitation of flexion is remanded. Entitlement to a compensable disability rating for service-connected right thigh limitation of abduction is remanded. FINDINGS OF FACT 1. VA received the Veteran’s claim for entitlement to service connection for femoral stress fractures in June 1991, within one year of his separation from active duty service. 2. The September 1991 rating decision granted service connection and assigned a noncompensable disability rating, effective May 29, 1991, the day following his separation from active duty service. 3. For the period prior to January 20, 2010, the record does not reflect any medical evidence pertaining to the Veteran’s service-connected right and left lower extremity femoral stress fractures. 4. The Veteran has been assigned a compensable disability rating. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date prior to January 20, 2010 for the assignment of a 10 percent disability rating for service-connected residuals from a femoral stress fracture of the right lower extremity have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.157, 3.400, 4.124a, Diagnostic Codes (DCs) 5255-5251. 2. The criteria for entitlement to an effective date prior to January 20, 2010 for the assignment of a 10 percent disability rating for service-connected residuals from a femoral stress fracture of the left lower extremity have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.157, 3.400, 4.124a, Diagnostic Codes (DCs) 5255-5253. 3. The criteria for entitlement to an initial disability rating of 10 percent under 38 C.F.R. § 3.324 is dismissed. 38 U.S.C. § 1155; 38 C.F.R. § 3.324. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1990 to May 1991. By way of background, the Veteran filed a claim for “bilateral supracondylar femoral stress” that was received on January 20, 2010. In a May 2010 rating decision, he was awarded service connection for residuals from a femoral stress fracture of the right and left lower extremities, both rated 0 percent, effective from January 20, 2010. He was also denied entitlement to a 10 percent evaluation based on multiple, noncompensable service-connected disabilities. After the Regional Office (RO) notified the Veteran of that decision in June 2010, that same month, they conducted a special review of his claims file and determined that a clear and unmistakable error had been committed in the effective dates assigned in the May 2010 rating decision. Specifically, it was noted that the May 2010 rating decision erroneously showed service connection for the Veteran’s bilateral lower extremity, femoral stress fracture residuals as an original grant of service connection, effective January 20, 2010, when in actuality service connection for these conditions had previously been established effective May 29, 1991. See September 1991 rating decision. Therefore, another rating decision was issued in June 2010 to recognize (and correct) the Veteran’s effective date from January 20, 2010, to May 29, 1991, for his award of service connection for residuals from a femoral stress fracture of the right and left lower extremities. The noncompensable ratings assigned for those disabilities were continued, along with the denial of a 10 percent evaluation based on multiple, noncompensable service-connected disabilities. The Veteran initiated an appeal of the June 2010 rating decision, which was subsequently perfected to the Board. In May 2017, a videoconference hearing was held before the undersigned Veterans Law Judge. Thereafter, the Board remanded the case in August 2017 for additional development. Following the additional development completed pursuant to the Board’s August 2017 remand, the Veteran was issued a December 2018 rating decision that awarded 10 percent evaluations for his femoral stress fracture residuals of the right and left lower extremities, effective from January 20, 2010. He was also awarded service connection for left thigh limitation of extension, left thigh limitation of flexion, right thigh limitation of abduction, and right thigh limitation of flexion, all rated 0 percent, effective from January 20, 2010. The rating decision explained that the separate awards of service connection were “inextricably intertwined” with the appealed issues for increased evaluations of the right and left femur. Therefore, the Board finds that these issues are now also properly within its jurisdiction. Concurrent with the December 2018 rating decision, the Veteran was also issued a supplemental statement of the case (SSOC) that denied consideration of increased evaluations for his femoral stress fracture residuals of the bilateral lower extremities prior to January 20, 2010; denied evaluations in excess of 10 percent for his femoral stress fracture residuals of the bilateral lower extremities; and dismissed as moot the issue of entitlement to a 10 percent disability evaluation for multiple noncompensable service-connected disabilities pursuant to 38 C.F.R. § 3.324. In December 2018, the Veteran’s representative filed a VA Form 9, substantive appeal, in which the representative continued the Veteran’s disagreement with the December 2018 SSOC and requested a hearing before the Board. As the issues addressed in the SSOC were previously the subject of the May 2017 videoconference hearing, the Board requested clarification from the Veteran in November 2019 as to whether he desired another hearing on these issues. The Veteran did not respond to the Board’s letter; however, in a statement dated February 2020, the Veteran’s representative requested that the Board proceed with review of the evidence based on the current record. Specifically, the representative noted that the December 2018 VA Form 9 had been completed by a “local representative” and that a review of their own internal records did not show that the Veteran had ever communicated a desire for another Board hearing. Accordingly, the Board finds it may proceed without affording the Veteran another hearing. 1. Entitlement to 10 percent evaluations prior to January 20, 2010, for service-connected residuals from a femoral stress fracture of the right and left lower extremities is denied. As previously discussed, the June 2010 rating decision recognized (and corrected) the Veteran’s effective date from January 20, 2010, to May 29, 1991, for his award of service connection for residuals from a femoral stress fracture of the right and left lower extremities. The noncompensable ratings assigned for those disabilities were continued, along with the denial of a 10 percent evaluation based on multiple, noncompensable service-connected disabilities. After appealing the June 2010 rating decision to the Board, the Veteran was awarded 10 percent evaluations for his femoral stress fracture residuals of the right and left lower extremities, effective from January 20, 2010 (date of claim). See December 2018 rating decision. Therefore, the issue of whether the Veteran is entitled to an earlier effective date for the grant of the 10 percent disability evaluations for service-connected residuals from a femoral stress fracture of the right and left lower extremities is presently before the Board. In general, the effective date for an increase will be the date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o)(1). For an increase in disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date otherwise, date of receipt of claim. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o)(2). In order for entitlement to an increase in disability compensation to arise, the disability must have increased in severity to a degree warranting an increase in compensation. See Hazan v. Gober, 10 Vet. App. 511, 519 (1992) (noting that, under § 5110(b)(2) which provides that the effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, “the only cognizable ‘increase’ for this purpose is one to the next disability level” provided by law for the particular disability). In VAOPGCPREC 12-98, VA’s General Counsel noted that 38 C.F.R. § 3.400(o)(2) was added to permit payment of increased disability compensation retroactively to the date the evidence establishes the increase in the degree of disability had occurred; that this section was intended to be applied in those instances where the date of increased disablement can be factually ascertained with a degree of certainty. It was noted that this section was not intended to cover situations where disability worsened gradually and imperceptibly over an extended period of time. The United States Court of Appeals for Veterans Claims, in Hazan, noted that 38 U.S.C. § 5110(b)(2) required a review of all the evidence of record (not just evidence not previously considered) as to the disability in order to ascertain the earliest possible effective date. Thus, determining whether an effective date assigned for an increased rating is correct or proper under the law requires (1) a determination of the date of the receipt of the claim as well as (2) a review of all the evidence of record to determine when an increase in disability was “ascertainable.” Hazan, 10 Vet. App. at 521. A review of the claims file shows that within one year of his separation from service, the Veteran submitted his original claim for entitlement to service connection for femoral stress fractures that was received by VA in June 1991. Thereafter, a September 1991 rating decision granted entitlement to service connection for femoral stress fractures and assigned a noncompensable rating, effective May 29, 1991 (day after separation from service). The Veteran did not appeal that decision or submit new and material within one year of that decision, and it became final. 8 U.S.C. § 7104; 38 C.F.R. § 3.104, 20.302, 20.1103. The next communication VA received from the Veteran pertaining to his service-connected femoral stress fractures was received on January 20, 2010. Specifically, this communication was a claim for an increased rating for his service-connected femoral stress fractures. See January 2010 claim. Therefore, January 20, 2010 is the date of the receipt of the claim which is the basis of the Veteran’s effective date for his 10 percent disability rating. In this case, the Board also notes that a thorough review of the evidence of record for the one-year period prior to January 20, 2010 does not include any findings regarding the Veteran’s service-connected femoral stress fractures. As such, the Board must find it was not factually ascertainable during this relevant period that a compensable disability rating is warranted. Thus, an effective date earlier than January 20, 2010 for the assignment of a 10 percent disability rating is denied. 2. The appeal of entitlement to a 10 percent evaluation based on multiple, noncompensable service-connected disabilities under 38 C.F.R. § 3.324 is dismissed. Early in the pendency of this appeal, when the Veteran was assigned noncompensable disability ratings for his service-connected residuals from a femoral stress fracture of the right and left lower extremities, the Veteran claimed entitlement to a 10 percent evaluation for multiple, noncompensable service-connected disabilities. When a Veteran has two or more separate, permanent, service-connected disabilities of such character as clearly to interfere with normal employability, even though none of the disabilities may be of compensable degree under the rating schedule, the rating agency is authorized to apply a 10 percent rating, but not in combination with any other rating. 38 C.F.R. § 3.324. Since the filing of his claim for a 10 percent disability evaluation for multiple, noncompensable service-connected disabilities, in January 2010, the Veteran has been granted increased ratings for his service-connected residuals from a femoral stress fracture in the right and left lower extremities. He has also been awarded service connection for left thigh limitation of extension, left thigh limitation of flexion, right thigh limitation of flexion, and right thigh limitation of abduction. As a result, the Veteran now has a combined 20 percent rating for his service-connected disabilities, effective January 20, 2010. See December 2018 rating decision. As the Veteran is now in receipt of a compensable rating for his service-connected disabilities, the Board finds that the claim for a 10 percent evaluation under § 3.324 is moot as a matter of law and the appeal is dismissed. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 10 percent for service-connected residuals from a femoral stress fracture of the right lower extremity, entitlement to a disability rating in excess of 10 percent for service-connected residuals from a femoral stress fracture of the left lower extremity, entitlement to a compensable disability rating for service-connected left thigh limitation of extension, entitlement to a compensable disability rating for service-connected left thigh limitation of flexion, entitlement to a compensable disability rating for service-connected right thigh limitation of flexion and entitlement to a compensable disability rating for service-connected right thigh limitation of abduction are remanded. Regarding the increased rating claims on appeal, a review of the record shows that the Agency of Original Jurisdiction (AOJ) initiated a request in June 2019 with the St. Louis-JC Division VA Medical Center (VAMC) for the Veteran to be provided a VA examination that evaluates his hip and thigh. Although the Veteran’s case had been already returned to the Board following its August 2017 remand, the examination request indicates it is being made in response to the August 2017 remand. See June 2019 VA 21-2507a, Request for Physical Examination. A copy of the examination report is included in the record. See June 2019 VA examination. However, it has not been reviewed by the AOJ in conjunction with the Veteran’s current appeal. As the results from this examination likely have an impact on the Veteran’s current increased rating claims for the femoral stress fracture residuals of the bilateral lower extremities, left thigh, and right thigh, readjudication of these claims by the AOJ is required prior to the Board’s review. The matters are REMANDED for the following action: Readjudicate the issues of entitlement to increased ratings for the Veteran’s residuals from a femoral stress fracture of the right lower extremity, residuals from a femoral stress fracture of the left lower extremity, left thigh limitation of extension, left thigh limitation of flexion, right thigh limitation of flexion, and right thigh limitation of abduction, with particular attention given to the June 2019 VA examination report. If any of the benefits sought remain denied, issue an appropriate SSOC and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Churchwell, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.