Citation Nr: 21065550 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 18-23 324 DATE: October 26, 2021 ORDER An evaluation in excess of 10 percent for left femur fracture s/p open reduction internal fixation (extension) is denied. An initial compensable rating for left thigh limitation of flexion is denied. Prior to July 24, 2020, an initial compensable rating for left thigh impairment (adduction) is denied. From July 24, 2020, a 10 percent disability rating, and no higher for left thigh impairment (adduction) is granted. Prior to September 30, 2019, a compensable evaluation for left leg residual surgical scarring associated with fracture, left femur s/p open reduction internal fixation is denied. From September 30, 2019, a 10 percent disability rating, and no higher, for left leg residual surgical scarring associated with fracture, left femur s/p open reduction internal fixation is granted. FINDINGS OF FACT 1. The Veteran is in receipt of the maximum schedular rating for limitation of extension of the thigh. 2. Prior to July 24, 2020, the Veteran's left thigh flexion was limited to 80 degrees at worst. Since then, it has manifested with painful motion and flexion limited to no less than 50 degrees, even during flare-ups. 3. Prior to July 24, 2020, the Veteran's left thigh impairment did not manifest with limitation of rotation that results in an inability to toe-out more than 15 degrees; an inability to cross legs; or limitation of abduction that results in loss of motion beyond 10 degrees. 4. From July 24, 2020, the Veteran has had limitation of adduction resulting in an inability to cross his legs. 5. Prior to September 30, 2019, the Veteran's two left thigh scars did not manifest with any disabling effects not considered under Diagnostic Codes 7800-7804. 6. Resolving doubt in the Veteran's favor, from September 30, 2019, he has one or two tender/painful scars. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for left femur fracture s/p open reduction internal fixation (extension) are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5251. 2. The criteria for an initial compensable rating for left thigh limitation of flexion are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5252. 3. The criteria for an initial compensable rating for left thigh impairment prior to July 24, 2020 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5253. 4. The criteria for a 10 percent disability rating, and no higher, for left thigh impairment (adduction) from July 24, 2020 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5253. 5. A compensable evaluation for left leg residual surgical scars prior to September 30, 2019 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, DC 7802, 7805. 6. The criteria for a 10 percent disability rating, and no higher, for left leg residual surgical scarring associated with fracture, left femur s/p open reduction internal fixation from September 30, 2019 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, DC 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1976 to May 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran testified before the undersigned Veterans Law Judge; a transcript of the hearing is of record. Increased Rating Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as here, entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the current level of disability that is of primary concern, and VA must only address the evidence concerning the state of the disability from the time period one year before the claim for an increase was filed until VA makes a final decision on the claim. See Francisco v. Brown,7 Vet. App. 55, 58 (1994). When the factual findings show distinct time periods during which the veteran exhibits symptoms of the disability at issue, and such symptoms warrant different disability ratings, staged ratings may also be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and therefore, not be reflected on range of motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. 1. An evaluation in excess of 10 percent for left femur fracture s/p open reduction internal fixation (extension) is denied. 2. An initial compensable rating for left thigh limitation of flexion is denied. 3. An initial compensable rating for impairment of left thigh prior to July 24, 2020 is denied. 4. A 10 percent disability rating, and no higher for impairment of left thigh (adduction) from July 24, 2020 is granted. The Veteran seeks higher ratings for his service-connected left hip disabilities. The appeal period begins on May 27, 2014, one year prior to the date VA received the claim for an increased rating. See Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). The Veteran's left thigh left femur fracture s/p open reduction internal fixation (extension) is rated under 38 C.F.R. § 4.71a, DC 5251. During the pendency of the appeal, the RO assigned two separate ratings for left thigh limitation of flexion (DC 5252) and left thigh impairment (DC 5253), both rated as noncompensable. These ratings are were made effective as of May 27, 2015, the date his increased rating claim was received by VA. Under DC 5251, a maximum 10 percent rating is warranted for extension of the thigh limited to 5 degrees. 38 C.F.R. § 4.71a, DC 5251. DC 5252 evaluates limitation of flexion of the thigh. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 20 degrees. A maximum 40 percent rating is warranted for flexion limited to 10 degrees. 38 C.F.R. § 4.71a. DC 5253 evaluates limitations of abduction, adduction, and rotation of the thigh. A 10 percent rating is warranted for limitation of rotation of affected leg, cannot toe out more than 15 degrees. A 10 percent rating is also warranted for limitation of adduction, cannot cross legs. A maximum 20 percent rating is warranted for limitation of abduction, motion lost beyond 10 degrees. Id. The rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, the diagnostic codes in use here (5251, 5252, and 5253) were not changed. Specific to the hip joint, Diagnostic Code 5054 (resurfacing or replacement (prosthesis)) and Diagnostic Code 5255 (impairment of femur) were amended. However, there is no medical evidence that the Veteran has undergone hip resurfacing or replacement, or that he has impairment of the femur. Evidence During the course of the appeal, the Veteran was afforded multiple VA examinations for his left thigh disability. Although the July 2015 VA examiner tested for range of motion, passive range of motion testing and non-weight bearing testing were not performed. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 required that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." Thus, this examination is inadequate for rating purposes. The February 2018 VA examination report showed flexion to 80 degrees; extension to 20 degrees; abduction to 30 degrees; adduction to 15 degrees; external rotation to 30 degrees; and internal rotation to 30 degrees. There was no additional loss of motion on repetition. There was objective evidence of painful motion in all ranges; however, the pain did not result in or cause functional loss. Adduction was not so limited that the Veteran could not cross his legs. The Veteran denied having flare-ups. The examiner noted ankylosis was not present. The July 2020 VA examination report showed a diagnosis of degenerative arthritis in the left thigh. Flexion was limited to 55 degrees; extension to 5 degrees; abduction to 20 degrees; adduction to 15 degrees; external rotation to 20 degrees; and internal rotation to 15 degrees. Pain was noted on flexion and extension and was noted to cause functional loss. Adduction was so limited that the Veteran could not cross his legs. There was evidence of pain with weight bearing. The Veteran was able to perform repetitive-use testing without additional loss of function or range of motion after three repetitions. Pain and incoordination were noted as significantly limiting the Veteran's functional ability with repeated use over a period of time and flare-ups. In this regard, flexion was limited to 50 degrees; extension to 0 degrees; abduction to 15 degrees; adduction to 10 degrees; external rotation to 10 degrees; and internal rotation to 10 degrees. Analysis As the Veteran is in receipt of the highest schedular rating for limitation of extension of the thigh under DC 5251, there is no basis to award a higher rating under that Code. A higher rating of 10 percent is not warranted under DC 5252 for the Veteran's left thigh limitation of flexion because the Veteran's flexion is not shown to be limited to at least 45 degrees throughout the appeal. The February 2018 VA examination report showed flexion to 80 degrees including with repetitive use testing. The July 2020 VA examination report flexion was limited to 55 degrees and the examiner estimated that even with repeated use over time and flare-ups, the Veteran's flexion would be limited to, at worst, 50 degrees. A 10 percent is not warranted under DC 5253, but only for the period beginning July 24, 2020. Prior to July 24, 2020, an initial compensable rating is not warranted under DC 5253. The VA examination reports showed there was no impairment to the left thigh disability such that a limitation of rotation resulting in an inability to toe-out more than 15 degrees. There was no limitation of adduction resulting in the Veteran's inability to cross his legs. There was no limitation of abduction that resulting in a loss of motion beyond 10 degrees or functional impairment approximating such. However, as seen in the July 24, 2020 VA examination report, the Veteran's adduction was so limited that he could not cross his legs. Therefore, a 10 percent rating will be assigned as of this date, when the evidence first supported such a rating. An even higher rating of 20 percent is not warranted because the Veteran's left thigh impairment is not shown to have abduction with loss of motion beyond 10 degrees. The Board acknowledges the Veteran's lay reports of symptoms and that there is functional loss due to pain, weakened movement, incoordination, pain during flare-ups and repetitive use over time. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected would not result in symptoms more nearly approximating limitation of flexion to 30 degrees or limitation of abduction, motion lost beyond 10 degrees. Finally, the Board has also considered the other diagnostic codes pertaining to the hip and thigh. The record does not reveal ankylosis of the hip or flail joint. The Veteran is already rated 10 percent for his left femur fracture and there is no evidence of non-union of the femur. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's appeal for a rating in excess of 10 percent for left femur fracture, limitation of extension and left thigh limitation of flexion. However, from July 24, 2020, a separate 10 percent rating, and no higher, is granted for left thigh impairment (adduction). 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 5. A compensable evaluation for left leg residual surgical scars prior to September 30, 2019 is denied. 6. A 10 percent disability rating, and no higher, for left leg residual surgical scars from September 30, 2019 is granted. The Veteran contends that he is entitled to a compensable rating for his left leg scar. The appeal period begins on May 27, 2014, one year prior to the date VA received the claim for an increased rating. See Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). Historically, the Veteran's left leg residual scars were rated noncompensable as part of his left femur fracture s/p open reduction internal fixation. In a March 2018 rating decision, the RO recharacterized the scar disability as 'left leg residual surgical scarring associated with fracture, left femur s/p open reduction internal fixation' and continued the noncompensable rating under DC 7805. In a December 2019 rating decision, the RO continued the noncompensable rating and changed the Code to 7802. VA amended the criteria for rating skin disabilities effective from August 13, 2018. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after August 13, 2018. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. As this appeal was pending on August 13, 2018, the revised criteria are applicable, but only for the period beginning August 13, 2018. Former Rating Criteria DC 7802 provides a 10 percent rating for scars that are nonlinear, superficial, and not located on the head, face, or neck, that are of an area or areas of 144 square inches or greater. Note (1) to DC 7802 defines a superficial scar as one not associated with underlying soft tissue damage. Scars that are unstable or painful are rated pursuant to DC 7804. A 10 percent rating is warranted for one or two scars that are unstable or painful. Note (1) defines an unstable scar as one where there is frequent loss of covering of skin over the scar. Note (2) states that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note (3) states that scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an evaluation under this DC when applicable. DC 7805 instructs that any disabling effect(s) not considered in a rating provided under diagnostic codes 7800-04 be evaluated under an appropriate diagnostic code. Revised Rating Criteria Effective August 13, 2018, DC 7802 is assigned to burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage. An assignment of a 10 percent disability rating is warranted where the scar covers an area or areas of 144 square inches (929 sq. cm.) or greater. 38 C.F.R. § 4.118. DCs 7804 and 7805 were not changed by the August 13, 2018, amendments. Prior to September 30, 2019 Prior to September 30, 2019, the preponderance of the evidence is against the assignment of a compensable rating for the Veteran's left leg residual surgical scar under DC 7805 as there are no other disabling effect(s) not considered in a rating provided under diagnostic codes 7800-04. Turning to the evidence of record, the Veteran was afforded a VA hip and thigh examination in July 2015. Two scars were identified; one large scar on the lateral hip measuring 25cm x 0.3cm and a small scar located on the lateral hip posterior to scar, measuring 2cm x 0.3cm. The scars were not of the head, face, or neck; did not cover an area of at least 6 square inches (39 sq. cm) but less than 12 square inches (77 sq. cm.); did not cover an area of at least 144 square inches (929 sq. cm); and were not reported as painful or unstable. At the February 2018 VA hip and thigh examination, only a small scar was reported, and it measured at 2cm x 0.2cm. The scar was not of the head, face, or neck; did not cover an area of at least 6 square inches (39 sq. cm) but less than 12 square inches (77 sq. cm.); did not cover an area of at least 144 square inches (929 sq. cm); and was not reported as painful or unstable. Based on the evidence of record, including VA treatment records and the Veteran's lay report, a compensable rating is not warranted under diagnostic codes 7800-04. The Veteran's left leg residual surgical scars are not of the head, face, or neck, were not described as deep and nonlinear, or associated with underlying soft tissue damage. Even if they were reported as superficial, they do not cover an area or areas of 144 square inches or greater. Moreover, the Veteran did not report that either of his scars were unstable or painful. Therefore, a compensable rating was not warranted under diagnostic codes 7800, 7801, 7802, and 7804 with consideration of either the former or revised diagnostic criteria. From September 30, 2019 Resolving all doubt in the Veteran's favor, the Board finds that from September 30, 2019, a 10 percent disability rating is warranted for painful scar(s). The Veteran was afforded a VA scar examination on September 30, 2019. He reported symptoms such as occasional tenderness and itching since the surgery on his leg in the early 1980's. The examiner noted that the Veteran had one painful scar on the left leg that was at times tender and itched from time to time. The Veteran did not report any burn scars. During the evaluation of the Veteran's scars on the trunk and extremities, the examiner noted that there was only one scar affecting the left lower extremity. It was described as "a very large scar going down the thigh on the left leg." This scar measured at 25cm x 1cm and did not result in limitation of function or motion. In July 2020, the Veteran underwent another VA examination for scars. Two scars were identified; one diagnosed as linear left lateral thigh scar, residual of left hip open reduction internal fixation (ORIF) and the other, hypertrophic left lateral thigh scar, residual of left hip ORIF. The first left lateral thigh scar was described as stable since its onset. However, the second left lateral thigh scar was reported as "very tender and painful at times." The examiner identified one painful scar of the trunk or extremity and described it reported that the "smaller scar is very tender when touched. Becomes painful at times with certain movements, such as bending or kneeling." On physical examination of the scars on the trunk and extremities, the examiner noted that the Veteran's left lower extremity was affected and identified two scars located on the left lateral thigh. The first scar measured at 25.5cm x 0.25cm, while the second measured at 3cm x. 0.5cm. The examiner indicated that the second scar (3cm x. 0.5cm) was tender to palpation. The examiner also indicated that the Veteran had a scar without underlying tissue damage located in the left lower extremity and covered approximately 1.5 square centimeters. Neither scar resulted in limitation of function or motion. Lastly, the examiner remarked there were two surgical scars on the left lateral thigh. One was much longer than the other and the Veteran reported the shorter, left lateral thigh scar the outer scar as very tender and painful at times with movement. A 10 percent rating is warranted under DC 7804 for one or two unstable or painful scars from September 30, 2019. VA scar examination reports from both September 2019 and July 2020 have indicated that the Veteran has at least one painful scar. The September 2019 examiner appeared noted the Veteran's larger scar as tender, the July 2020 examiner report identified the smaller scar as painful. At his Board hearing in July 2021, the Veteran stated that both scars "bother" him and noted that the smaller scar, where the bone popped out, had gotten "real soft and tender" explaining that he can barely touch it or even rub it much. In light of the Veteran's testimony and the medical evidence, the Board assigns a 10 percent disability rating pursuant to DC 7804, effective September 30, 2019. See Butts v. Brown, 5 Vet. App. 532, 538 (1993)(the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."). A higher rating is not warranted under DC 7804 because the Veteran does not have at least three unstable or painful scars. The Board acknowledges that during the September 2019 VA examination, the Veteran reported his scar had been occasionally tender since his initial surgery. However, review of VA examination reports in 2009, 2012, 2015, and 2018 all reflect that his left femur scar was not tender or painful and that the Veteran did not report otherwise. The medical records do not reflect complaints of pain or tenderness in the scars. It was not until the 2019 examination that the Veteran reported tenderness at the scar site. The Board has also considered the other diagnostic codes pertaining to scars. The preponderance of the evidence is against the assignment of a compensable evaluation under DC 7802 because neither scar measures an area or areas of 144 square inches (929 sq. cm.) or greater. DC 7800 is inapplicable as the scars in question are not located on the head, face, or neck. DC 7801 is not applicable because the Veteran's scars are not deep or nonlinear (or associated with underlying soft tissue damage) and do not cover at least 6 square inches (77 sq. cm.). In conclusion, resolving all doubt in the Veteran's favor from September 30, 2019, a 10 percent rating is granted. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Telamour, 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.