Citation Nr: 21004637 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 09-12 252 DATE: January 27, 2021 ORDER Entitlement to an extraschedular rating greater than 10 percent for right femur fracture residuals with hip sprain is denied. FINDING OF FACT The Rating Schedule contemplates the Veteran’s right femur and hip symptoms, to include pain, stiffness, and range of motion loss, as well as his functional loss and residual scar; the Veteran’s symptoms do not create an unusual disability picture that fall outside of the Rating Schedule. CONCLUSION OF LAW The criteria for an increased extraschedular rating greater than 10 percent for a right femur and hip condition have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.71a (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1974 to April 2004. He appeals a December 2007 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) denying entitlement to an increased rating for residuals of a right femur fracture with hip sprain. In a February 2011 decision, the Board of Veterans’ Appeals (Board) bifurcated the increased rating claim on schedular and extraschedular bases. The Board denied entitlement to an increased schedular rating greater than 10 percent for his right femur disability and remanded the increased extraschedular rating issue for further action consistent with the Board’s remand directives. After four subsequent Board remands, the most recent in July 2017, the extraschedular rating issue is back before the Board for further appellate proceedings. The July 2017 Board remand requested the AOJ obtain private treatment records from Dr. J.R. In compliance, the AOJ requested the Veteran file a VA Form 21-4142 and provide further information regarding his treatment with Dr. J.R. Although the first request for this information, sent in August 2020, did not reach the Veteran due to an incorrect address, it was received by the Veteran’s representative. Then, the AOJ obtained the Veteran’s correct address and sent the Veteran a subsequent development letter in November 2020. To date, the Veteran and his representative have not submitted any private treatment records or responded to the AOJ’s November 2020 development request. While VA has a duty to assist veterans in obtaining evidence, the Veteran must cooperate fully with VA’s reasonable efforts to obtain relevant records from non-Federal agencies. See 38 C.F.R. § 3.159(c). Here, VA made reasonable efforts to obtain these records by mailing the Veteran and his representative the subsequent development letters. Further, the July 2017 Board remand alerted the Veteran that private treatment records from Dr. J.R. were not of record. Thus, as the duty to assist is not a one-way street, the Board finds the AOJ complied with its duty to assist the Veteran, there has been substantial compliance with the Board’s remand directives, and the Veteran’s claim can be adjudicated. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c); See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). 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. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). To afford justice to the exceptional cases where the schedular evaluation is inadequate to rate a single service-connected disability, the Director of the Compensation Service is authorized to approve an extraschedular evaluation commensurate with the average impairment of earning capacity due exclusively to this disability. See 38 C.F.R. § 3.321(b). As stated above, the Board bifurcated entitlement to an increased rating for a right femur and hip disability on both schedular and extraschedular bases. See February 2011 Board decision. The Board denied an increased rating on a schedular basis. Specifically, the Board found the Veteran’s right femur and hip disability was manifested in complaints of “pain and stiffness and certain functional limitations regarding bending, standing, and walking,” as well as a 28cm scar. See February 2011 Board decision. The Veteran did not challenge or appeal these findings to the Court of Appeals for Veterans Claims (Court). Thus, they became final. In the February 2011 decision, the Board considered whether the Veteran’s right femur and hip disability resulted in functional loss, and acknowledged findings of interference with bending, standing, and walking. Nevertheless, even considering limitations caused by such factors, the Board found the Veteran’s right femur and hip disability did not more nearly approximate right hip flexion limited to 30 degrees or less, extension limited to 5 degrees or more, or a moderate hip or knee disability, all criteria that would warrant a higher or separate rating under the hip and thigh Diagnostic Codes. Ultimately, the Board found the Veteran was not entitled to a higher rating under any hip and thigh rating criteria under 38 C.F.R. § 4.71A Diagnostic Codes 5250-5255. Id. The Board also found the Veteran was not entitled to a higher or separate rating under the rating criteria for osteomyelitis or scars. See 38 C.F.R. § 4.71A, Diagnostic Code 5000; 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805. The Board emphasizes that the aforementioned factual findings were not appealed to the Court, and the overall record does not reflect additional symptoms attributable to the Veteran’s right femur and hip disability that the schedular criteria does not contemplate. VA’s duty to maximize benefits requires it to first exhaust all schedular alternatives for rating a disability before the extraschedular analysis is triggered. See Morgan v. Wilkie, 31 Vet. App. 162, 168 (2019). These schedular rating alternatives, such as secondary service connection, analogous ratings, the requirement to assign a higher schedular rating if a veteran’s disability more nearly approximates the higher rating, the requirement that VA resolve doubt in favor of claimants, and the ability to rate a single disability under multiple diagnostic codes without pyramiding, are critical components of the duty to maximize benefits well before the Board reaches an extraschedular analysis. See Morgan, 31 Vet. App. at 164. For example, in this Veteran’s case, the AOJ granted a separate entitlement to service connection for the Veteran’s right femur surgical scar. See December 2020 rating decision. However, the February 2011 final Board decision, after weighing the evidence, found no increased, staged, analogous, or separate ratings were warranted, and, after considering functional loss, found “no more than slight hip disablement in association with the right femur fracture.” Nevertheless, the Board bifurcated the increased rating claim. There is a sequential three step analysis to determine whether a case should be referred for extraschedular consideration. See Thun v. Peake, 22 Vet. App. 111 (2008). Step one is to determine whether the schedular rating adequately contemplates the Veteran’s disability picture. If the criteria reasonably describe the Veteran’s disability level and symptomatology, then his disability picture is contemplated by the Rating Schedule. The assigned schedular evaluation would, therefore, be adequate, and an extraschedular rating would not be required. However, if there is evidence the Veteran’s service-connected disability presents such an “exceptional or unusual disability picture” that the schedular criteria do not contemplate the Veteran’s level of disability and symptomatology, the schedular criteria are inadequate. Id. In order to determine whether a disability is “exceptional or unusual,” there “must be a comparison between the level of severity and symptomatology of the claimant’s service-connected disability with the established criteria found in the rating schedule for that disability.” Id. If step one is met, then step two is to determine whether the Veteran’s disability picture is exceptional with related factors such as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular criteria. Id. Based on the above, and considering the unappealed schedular findings made in February 2011 Board decision, the Board finds that the rating criteria reasonably describe the Veteran’s service-connected right femur and hip disability and its symptomatology. The Veteran reported stiffness and pain in the right femur fracture area with walking long distances. See December 2007 VA examination report. Specifically, he noted he could not walk more than 2-3 miles or stand more than one hour. Id. In December 2020, the Veteran reported the same symptoms with added “pressure” when sitting for a period of time; specifically, he noted a mild, constant, and non-radiating pressure that was aggravated by bending over and driving more than 4 hours. See December 2020 VA examination report. The Veteran further noted he had to stand at least once an hour to relieve discomfort in his right hip, which affected his job performance in an office environment. See December 2007 VA examination report. The December 2020 VA examiner noted the Veteran had pain with functional loss, including decreased range of motion and the inability to cross his legs, but no additional factors contributing to the disability. Id. Symptoms of pain, tenderness, and decreased range of motion were confirmed by the Veteran’s private doctor. See November 2014 Dr. J.R. letter. In October 2014, the Veteran’s wife submitted a statement confirming his right femur and hip symptoms and noted the Veteran cannot exercise “at the pace he used to due to pain,” has to frequently adjust his position, and cannot perform routine lawn care, among other activities of daily living. The Board notes Mrs. M.S. stated the Veteran’s femur and hip symptoms have led to weight gain, high blood pressure, and cholesterol issues; however, these issues are properly addressed by the schedular rating alternative of secondary service connection noted in Morgan. Importantly, the rating criteria contemplate the Veteran’s key symptoms, namely pain, stiffness, and range of motion loss, as well as his functional loss. Therefore, the threshold factor for extraschedular consideration under step one of Thun has not been met, and the Board need not reach the second step of the Thun analysis. As the disability picture is contemplated by the Rating Schedule, the assigned schedular rating is adequate. Thus, extraschedular consideration is not warranted under 38 C.F.R. § 3.321(b)(1). In light of the above, the Board finds that remand for referral for consideration of an extraschedular rating based on the aforementioned symptoms is not warranted. See 38 C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111 (2008); Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996). Accordingly, the Board finds that the criteria for an increased rating greater than 10 percent for right femur and hip disability on an extraschedular basis are not met. See Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990); 38 C.F.R. § 3.102. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Bona, Associate 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.