Citation Nr: 21068742 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 08-35 910 DATE: November 12, 2021 ORDER Prior to September 16, 2014, a rating in excess of 10 percent for epiphysiodesis, distal left femur (left femur disability), is denied. For the period beginning September 16, 2014 and ending May 27, 2016, a rating in excess of 20 percent for epiphysiodesis, distal left femur (left femur disability), is denied. Entitlement to a total disability rating, based on individual unemployability, due to service-connected disabilities (TDIU), prior to June 17, 2014, is denied. FINDINGS OF FACT 1. Prior to September 16, 2014, the Veteran's left femur disability was manifested by no more than painful motion of the left thigh and knee with mild instability, representing no more than a slight thigh and knee disability. 2. For the period beginning September 16, 2014 and ending May 27, 2016, the Veteran's left femur disability was manifested by no more than a moderate thigh and knee disability. 3. Prior to June 17, 2014, the Veteran's service-connected disabilities did not preclude him from obtaining or maintaining substantially gainful employment consistent with his education and occupational background. CONCLUSIONS OF LAW 1. Prior to September 16, 2014, the criteria for a rating in excess of 10 percent for a left femur disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.1, 4.2, 4.7, 4.71a, Diagnostic Code 5255. 2. For the period beginning September 16, 2014 and ending May 27, 2016, the criteria for a rating in excess of 20 percent for a left femur disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.1, 4.2, 4.7, 4.71a, Diagnostic Code 5255. 3. The criteria for a TDIU prior to June 17, 2014 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1968 to May 1973. The Veteran testified before a Decision Review Officer (DRO) in November 2008. The Veteran also testified before the undersigned in April 2012. In a July 2014 decision, the Board denied an increased rating for epiphysiodesis, distal left femur, and entitlement to a TDIU rating. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In July 2015, the Court issued an order vacating the July 2014 Board decision and remanded the claims for readjudication consistent with the instructions outlined in a July 2015 Joint Motion for Remand by the parties. The Veteran died in May 2016. The Board, which still had jurisdiction over the appeal after the Court's remand, dismissed the appeal in July 2016 because the Veteran had died before the Board could adjudicate the appeal. The Appellant requested the AOJ substitute her for the Veteran in his appeal, and the AOJ substituted her in November 2017. Increased Ratings Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. § Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § § 4.1. Each disability must be considered from the point of view of the Veteran working or seeking work. 38 C.F.R. § § 4.2. 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. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § § 4.21. 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 (musculoskeletal system) or § 4.73 (muscle injury); 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) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria."). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § § 4.14. However, § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Veteran's left femur disability is evaluated under DC 5255, which provides rating criteria for impairment of the femur. Under this code, malunion of the femur with slight knee or hip disability warrants a 10 percent evaluation. Malunion of the femur with moderate knee or hip disability warrants a 20 percent evaluation. Malunion of the femur with marked knee or hip disability warrants a 30 percent evaluation. Fracture of surgical neck of femur, with false joint, or fracture of shaft or anatomical neck of femur with nonunion, without loose motion, weight bearing preserved with aid of brace, warrants a 60 percent evaluation. The highest rating available under that code, 80 percent, is warranted for fracture of shaft or anatomical neck of femur, with nonunion, with loose motion (spiral or oblique fracture). Diagnostic Code 5255 for impairment of the femur was amended effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). The Board notes that both periods on appeal for the Veteran's left femur disability fall entirely before the amended criteria took effect and thus, such amendments are not applicable to this case, and will not be considered. 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). In both initial rating claims and normal increased rating claims, the Board must discuss whether any "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In accordance with 38 C.F.R. § §§ 4.1, 4.2 (2019) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability at issue. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to this disability. 1. A rating in excess of 10 percent for epiphysiodesis, distal left femur (left femur disability), prior to September 16, 2014 In a November 1975 rating decision, the RO granted service connection for epiphysiodesis of the left femur. A 0 percent evaluation was assigned, effective May 12, 1975. In 2005, the Veteran filed a claim for an increased rating for the left femur disability. In a February 2006 rating decision, the RO granted an increased rating of 10% for the service-connected left femur disability, effective July 19, 2005. The Veteran appealed the 10 percent rating, and in a July 2014 rating decision, the Board denied a rating in excess for the left femur disability. In September 2014, the Veteran filed his current claim for an increased rating. In a May 2015 rating decision, the RO granted an increased rating of 20 percent for the left femur disability, effective September 16, 2014. The Veteran continued to appeal the ratings assigned for his left femur disability. In reviewing the evidence of record, the Board finds that the Veteran's left femur disability does not warrant an evaluation in excess of 10 percent under Diagnostic Code 5255 prior to September 16, 2014. In this regard, while the record reflects the Veteran's subjective complaints of pain and weakness, the objective evidence, of record indicates the Veteran's fractured femur is accompanied by no more than a "slight" left hip or knee disability. On VA examination in January 2006, the Veteran stated that he did not have a joint problem, but rather instability, resulting in him falling at least three times a week. He complained of weakness and stiffness only after falling, but denied locking, drainage, redness or swelling. On physical examination, there was one-half inch of atrophy to the quadriceps muscle of the left thigh as compared to the right. There was no tenderness to palpation, nor angulation, false motion, shortening or intra-articular involvement. Finally, there was no evidence of malunion or nonunion. Range of motion testing revealed full motion of the left hip with flexion of the left knee limited to 130 degrees of flexion. There was pain of the left knee with repetitive motion without fatigue, weakness, lack of endurance or loss of motion. There was no pain, fatigue, weakness, or loss of motion on repetitive testing of the left hip. Finally, there was no instability of the left knee, abnormal movement, guarding of movement or unusual shoe wear. On VA examination in August 2008, the Veteran reported symptoms of pain, elicited by physical activity, relieved by medication. He also described symptoms of residual weakness and instability. On examination, the Veteran's gait was abnormal with a limp favoring the left knee, because he felt he may fall at any moment. Examination of the feet did not reveal any signs of abnormal weight bearing or breakdown, or any unusual shoe wear pattern. Examination of the left tibia revealed normal findings. Flexion of the left knee was limited to 140 degrees of motion, with full extension of the knee. While there was pain following repetitive motion, functional motion was not additionally limited. The anterior and posterior cruciate ligaments stability test of the left knee was within normal limits. The medial and lateral collateral ligaments stability test of the left knee was abnormal with slight instability. On VA examination in August 2012, the Veteran complained of hip and thigh pain, and giving out without warning. Flexion of the left hip was limited to 110 degrees of motion with full extension. Left knee flexion was limited to 120 degrees, with extension limited to 5 degrees of motion. There was no additional limitation of motion due to pain or repetitive use. Functional loss included weakened movement, excess fatigability, pain, atrophy of disuse and interference with sitting, standing, or weight-bearing. Muscle strength testing was 4/5 on left hip flexion and abduction and 5/5 on extension. Based on such evidence, as well as that reflected by the Veteran's VA treatment records, the Board finds that prior to September 16, 2014, the Veteran's left femur disability is manifested by no more than a "slight" left hip or knee disability. Despite the Veteran's subjective complaints, the objective evidence demonstrates no more than slight instability of the left leg and slight limitation of motion of the hip and/or knee. The Board has considered whether an evaluation in excess of 10 percent is warranted for the Veteran's left femur disability under other diagnostic codes in order to provide him with the most beneficial rating; however, the Veteran's left femur disability does not warrant a higher disability evaluation under any of the diagnostic codes pertaining to disabilities of the hip or thigh. In this regard, the evidence does not indicate the Veteran suffers from ankylosis of the left hip, flail joint of the left hip, limitation of flexion of the left thigh to 30 degrees or less, or limitation of abduction of the left thigh to 10 degrees or less. See 38 C.F.R. § 4.71a, Diagnostic Codes 5250-5253. The Board has considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Consideration under 38 C.F.R. § § 3.321 (b)(1) has not been specifically sought by the Veteran or reasonably raised by the facts found by the Board. As such, there is no basis for extraschedular discussion in this case. See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016). 2. A rating in excess of 20 percent for epiphysiodesis, distal left femur (left femur disability), from September 16, 2014 to May 27, 2016 As noted above, in a May 2015 rating decision, the RO granted an increased rating of 20 percent for the left femur disability, effective September 16, 2014. The Veteran continued to appeal the ratings assigned for his left femur disability. On VA examination in April 2015, the Veteran complained of frequent falls, and reported that he was unable to walk long distances, sit for prolonged periods of time, or rest. He also reported that he was not very mobile, and that he was using a walker and trying to transition to a cane. He reported weekly flare-ups of increased pain, up to a level 10/10. On physical examination, range of motion of the left hip was limited to 125 degrees of flexion, 30 degrees of extension, 25 degrees of abduction and adduction, 60 degrees of external rotation, and 10 degrees of internal rotation. Pain was noted on examination and it caused functional loss. There was also objective evidence of moderate localized tenderness or pain on palpation of the left groin. There was no evidence of pain with weight bearing or crepitus. There was no additional loss of function or range of motion following repetitive-use testing. Pain and incoordination were noted to significantly limit functional ability with repeated use over a period of time and during flare-ups, but the examiner was not able to describe the limitation in terms of range of motion. Muscle strength was 4/5 for the left hip, but there was no muscle atrophy and no ankylosis. There was no history of recurrent subluxation or lateral instability, and there was no left knee instability found during joint stability testing. The Veteran also reported that he used a cane and walker regularly for balance. In reviewing the evidence of record, the Board finds that the Veteran's left femur disability does not warrant a rating in excess of 20 percent under Diagnostic Code 5255, for the period beginning September 16, 2014 and ending May 27, 2016. In this regard, while the record reflects the Veteran's subjective complaints of pain, weakness, and instability, the objective evidence of record indicates the Veteran's fractured femur is accompanied by no more than a "moderate" left hip or knee disability. Specifically, on examination in 2015, range of motion for the left hip was normal, except for moderately limited abduction and internal rotation. Furthermore, there was no instability of the left leg demonstrated, only slightly reduced muscle strength in the left hip, and "moderate" localized tenderness or pain on palpation of the left groin. The Board has considered whether an evaluation in excess of 10 percent is warranted for the Veteran's left femur disability under other diagnostic codes in order to provide him with the most beneficial rating; however, the Veteran's left femur disability does not warrant a higher disability evaluation under any of the diagnostic codes pertaining to disabilities of the hip or thigh. In this regard, the evidence does not indicate the Veteran suffers from ankylosis of the left hip, flail joint of the left hip, or limitation of flexion of the left thigh to 20 degrees or less. See 38 C.F.R. § 4.71a, Diagnostic Codes 5250-5253. The Board has considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Consideration under 38 C.F.R. § § 3.321 (b)(1) has not been specifically sought by the Veteran or reasonably raised by the facts found by the Board. As such, there is no basis for extraschedular discussion in this case. See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016). TDIU The Court has held that TDIU is an element of all claims for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU is granted where a Veteran's service-connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2019). TDIU ratings 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 disabilities, provided at least one disability is ratable at 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. §§ 3.340, 3.34l, 4.16(a). However, even when the percentage requirements are not met, entitlement to a total rating, on an extraschedular basis, may nonetheless be granted, in exceptional cases, when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §§ 3.321 (b), 4.16(b). In determining whether an individual is unemployable by reason of service-connected disabilities, consideration must be given to the type of employment for which the Veteran would be qualified. Such consideration would include education and occupational experience. Age may not be considered a factor. 38 C.F.R. § 3.341. Unemployability associated with advancing age or intercurrent disability may not be used as a basis for assignment of a total disability rating. 38 C.F.R. § 4.19. For a Veteran to prevail on a total rating claim, the record must reflect some factor which takes his or her case outside of the norm. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1996); 38 C.F.R. §§ 4.1, 4.15 (2019). The sole fact that a Veteran happens to be unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See Van Hoose, supra, at 363; 38 C.F.R. § 4.16 (a). The fact that a Veteran is unemployed is generally insufficient to demonstrate that he is considered "unemployable" within the meaning of pertinent VA laws and regulations. Instead, a longitudinal review of all the evidence is necessary in order to obtain a full understanding of the case. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155 (a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the Veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). 3. Entitlement to a TDIU, prior to June 17, 2014 The Veteran has been granted a TDIU as of June 17, 2014. Therefore, the issue of entitlement to TDIU from June 17, 2014 is moot. However, the Veteran contends that he has been unemployable since 1997 or July 2004, due to his depression and left femur disability. See March 2006 and April 2008 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. Service connection is currently in effect for depression, epiphysiodesis, distal, left femur; a left knee disability; tinnitus; a right leg disability; bilateral hearing loss; and a left leg scar. He has a combined disability rating of 80 percent from June 17, 2014. Therefore, he does not meet the schedular criteria for consideration of TDIU prior to June 17, 2014. See 38 C.F.R. § 4.16 (a). The medical evidence of record does not show that the Veteran's service-connected disabilities prevented him from obtaining or engaging in any form of substantially gainful employment prior to June 17, 2014. In this regard, prior to June 17, 2014, the Veteran reported that he worked full-time (approximately 42 hours per week) as a security guard. There is no indication such employment is in a protected work environment. He also noted that this position allowed him to sit most of the time, and stand when his legs cramped. He did claim that the position affected his diabetes, but the Board notes that the Veteran was never service-connected for diabetes. As the Veteran's employment as a security guard allowed him to sit most of the time, an August 2012 VA joints examiner found that his service-connected left femur disability did not impact his ability to work. The same examiner noted that the Veteran's service-connected left knee disability impacted his ability to work, in that it limited his standing and walking while working, but again the examiner noted that the Veteran's employment as a security guard allowed him to not have to stand or walk much at all. The Board also notes that an April 2006 VA mental disorders examiner found that the Veteran's service-connected depressive disorder did not preclude gainful employment. On VA examination in 2008, he reported that he was not employed, and on VA examination in 2009, he again reported being unemployed, but indicated that it was due to being laid off due to a work slow-down. The Board concludes that the most probative evidence of record weighs against finding that the Veteran's service-connected disabilities precluded him from obtaining or engaging in any form of substantially gainful employment prior to June 17, 2014. In this regard, no VA examiner or private physician prior to June 17, 2014 opined that a service-connected disability prevented the Veteran from maintaining gainful employment. Rather, as noted above, the August 2012 VA examiner, found that the Veteran's service-connected left hip/thigh disability and left knee disability did not prevent him from maintaining gainful employment, and an April 2006 examiner opined that his depression did not prevent gainful employment. There is also no medical evidence of record showing that any of the Veteran's other serviced-connected disabilities prevented him from maintaining gainful employment prior to June 17, 2014. Furthermore, and importantly, the Veteran was gainfully employed, prior to June 17, 2014. The Board acknowledges the Veteran's assertion that his earnings "barely" 'exceeded the poverty level. However, there is no showing that the Veteran's employment prior to June 17, 2014 was less than gainful employment. Moreover, the Board recognizes that the Veteran is competent to describe the symptoms and associated limitations of his disabilities. However, there is no evidence of record showing that the Veteran was ever terminated from or denied employment due to his service-connected disabilities, prior to June 17, 2014. (Continued on the next page) Accordingly, the Board finds that the preponderance of the evidence is against granting a TDIU prior to June 17, 2014. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board F. Yankey, 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.