Citation Nr: 21076395 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 17-44 909 DATE: December 23, 2021 ORDER A rating in excess of 30 percent for residuals of left femur fracture is denied. A 20 percent rating for leg length discrepancy is granted, effective September 17, 2019, subject to the laws and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. The Veteran's residuals of left femur fracture have been manifested by marked hip disability, with limitation of flexion to 70 degrees, limitation of extension to five degrees and limitation of abduction to 10 degrees and inability to cross legs after considering pain. 2. From September 17, 2019, the evidence shows that the Veteran's residuals of left femur fracture have been manifested by leg length discrepancy of 6 centimeters (cms). CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for residuals of left femur fracture have not been met. 38 U.S.C.§ 1155; 38 C.F.R. §§ 3.102, 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5251-55. 2. From September 17, 2019, the criteria for a 20 percent rating for leg length discrepancy have been met. 38 U.S.C.§ 1155; 38 C.F.R. §§ 3.102, 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5275. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1966 to December 1970. An April 1971 rating decision granted service connection for fracture of left femur with an initial rating of 30 percent. The Veteran filed a claim to increase the rating in excess of 30 percent for his left femur which was received by VA in July 2015. A May 2019 Board decision remanded the issue for further development, to include conducting a VA examination to assess the current severity of the Veteran's left femur disability. Increased Rating Residuals of left femur fracture The Veteran's left femur/left hip disability is rated in analogy to Diagnostic Code (DC) 5255. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. See 85 Fed. Reg. 230 (Nov. 30, 2020). If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and the new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Prior to the regulatory change, DC 5255 provides that a 30 percent rating is assigned for malunion of femur with marked knee or hip disability. A 60 percent evaluation requires either a fracture of the surgical neck of the femur with false joint or a fracture of the shaft or anatomical neck of the femur with nonunion, but without loose motion, and with weightbearing preserved with the aid of a brace. An 80 percent evaluation requires a fracture of the shaft or anatomical neck of the femur with nonunion, with loose motion (spiral or oblique fracture). See 38 C.F.R. § 4.71a, DC 5255 (2020). The words "slight," "moderate" and "marked" as used in the various DCs are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6 (2020). Under the new regulation effective February 7, 2021, DC 5255 provides that malunion of femur will be evaluated under Diagnostic Codes 5256, 5257, 5260 or 5261 for the knee, or 5250-5254 for the hip, whichever results in the highest evaluation. The remaining rating criteria under DC 5255 for nonunion or fracture of surgical neck of the femur remain unchanged. Of note, the evidence does not show the Veteran's left femur fracture resulted in left knee disability, as such, Diagnostic Codes 5256, 5257, 5260 or 5261 will not apply. Also, Diagnostic Codes 5250-5254 have not been changed by the new regulation effective February 7, 2021. DC 5250 evaluates ankylosis of the hip. DC 5254 evaluates flail hip joint. As the evidence does not show that the Veteran has ankylosis or flail hip joint, DC 5250 and DC 5254 do not apply here. DC 5251 provides a single 10 percent rating for limitation of extension of the thigh to five (5) degrees. 38 C.F.R. § 4.71a, DC 5251. DC 5252 provides that a 30 percent rating is assigned for limitation of flexion of the thigh to 20 degrees. A 40 percent rating is assigned for limitation of flexion of the thigh to 10 degrees. 38 C.F.R. § 4.71a, DC 5252. Diagnostic Code 5253 provides that a 10 percent rating is assigned for (i) limitation of rotation of the thigh where the affected leg cannot toe-out more than 15 degrees, or (ii) limitation of adduction to the point where the legs cannot be crossed. A 20 percent rating is assigned for limitation of abduction where the motion is lost beyond 10 degrees. 38 C.F.R. § 4.71a, DC 5253. Normal range of motion of the hip is 0 to 125 degrees of flexion and 0 to 45 degrees of abduction. 38 C.F.R. § 4.71, Plate II. Separate ratings may be assigned under DC's 5251, 5252, and 5253. Cf. VA General Counsel Opinion (VAOPGCPREC 9-2004) published at 69 Fed. Reg. 59,990 (2004). However, separate ratings for abduction, adduction, and/or rotation may not be assigned, as these are all evaluated under the same diagnostic code, DC 5253. Cullen v. Shinseki, 24 Vet. App. 74, 84 (2010). VA examination in September 2015 diagnosed the Veteran with status post, left femur fracture and repair. The examiner noted that the Veteran underwent a left femur fracture repair surgery in 1969 with residuals of left leg pain and weakness. On examination, the Veteran demonstrated left hip flexion to 100 degrees, extension to 25 degrees, abduction to 35 degrees, and adduction to 20 degrees which did not render the Veteran unable to cross his legs. Painful motion was noted. He was able to perform repetitive use with at least three times with no additional loss of function. The Veteran reported flare-ups, but the examiner was unable to say without mere speculation on whether pain, weakness, fatigability, or incoordination caused additional functional loss during flare-ups or after repeated use over a period of time. Muscle testing was 4/5 without no muscle atrophy. The examiner did not find ankylosis, nonunion, or flail hip joint, but found leg length discrepancy between the left leg (84 cm) and right leg (85 cm) measuring from the anterior superior iliac spine to the internal malleolus on the tibia. The examiner noted abnormal gait favoring the left leg and indicated that the Veteran occasionally used a cane. Another VA examination was conducted on September 17, 2019, which diagnosed the Veteran with status post, left femur fracture with limited range of motion and leg length discrepancy. On examination, the Veteran demonstrated left hip flexion to 70 degrees, extension to 5 degrees, abduction to 10 degrees, and adduction to 10 degrees which rendered the Veteran unable to cross his legs. Painful motion was noted. He was able to perform repetitive use with at least three times with no additional loss of function. The examiner indicated that the Veteran was examined immediately after repetitive use over time and the ranges of motion were indicated above. The Veteran reported flare-ups. The examiner indicated that pain, weakness, fatigability, or incoordination during flare-ups significantly limited functional ability, but was not able to describe in terms of range of motion, because additional loss of range of motion during flare-ups could not be derived from the Veteran's inputs. Muscle testing was 5/5 without any muscle atrophy. The examiner did not find ankylosis, nonunion, or flail hip joint, but found leg length discrepancy between the left leg (92 cm) and right leg (98 cm) measuring from the anterior superior iliac spine to the internal malleolus on the tibia. The examiner noted markedly altered gait with positive Trendelenburg favoring the left and indicated that the Veteran constantly used a cane. VA treatment records do not show left femur symptoms that are more severe than those revealed in the VA examinations. For example, records in December 2015 show the Veteran's left leg was shorter than his right leg. Records in June 2016 indicated that the Veteran had issues with his left buttock and left leg with possible leg discrepancy. Under the old regulation Under the old regulation, a rating in excess of 30 percent for impairment of femur under DC 5255 would require either fracture of the shaft or anatomical neck of the femur with nonunion or fracture of the surgical neck of the left femur. However, both VA examinations in 2015 and 2019 do not show nonunion or fracture of the surgical neck of the left femur. As such, a rating in excess of 30 percent for left femur impairment is not warranted under DC 5255. The Board has considered whether a higher rating can be granted under limitation of range of motion under DCs 5251-53. The most restrictive range of motion was revealed by VA examination in September 2019, showing extension to 5 degrees (equivalent of 10 percent under DC 5251), flexion to 70 degrees (not compensable under DC 5252), and abduction to 10 degrees and inability to cross legs (equivalent of 10 percent under DC 5253). The Board has also considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202(1995). A minimum compensable evaluation for a joint disability is warranted for painful motion under 38 C.F.R. § 4.59. However, a rating in excess of the minimum compensable rating must be based on demonstrated functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Here, a 10 percent maximum rating can be assigned under DC 5251, and a 10 percent rating can be assigned for limitation of abduction or inability to cross legs under DC 5153. The evidence does not show that pain will functionally limit the abduction of the left hip to less than 10 degrees. As such, a rating in excess of 10 percent under DC 5153 is not warranted. As to DC 5252 (limitation of flexion), the most restrictive flexion shown by the 2019 VA examination was to 70 degrees even considering the pain, which renders a noncompensable rating under DC 5252. However, a minimum rating based on painful motion is warranted under DC 5252 based on DeLuca. As discussed before, a separate rating under DC 5251, 5252, and 5253 is possible, however, combining the 10 percent rating under DC 5251, 10 percent rating under DC 5252, and the 10 percent rating under DC 5253 will result in a combined rating less than 30 percent. As such, a rating in excess of 30 percent is not warranted based on limitation of range of motion. Of note, a separate rating under DC5251, DC 5252, or DC 5253 may not be assigned in addition to a rating under DC 5255. As the Veteran's rating under DC 5255 contemplates his limited motion in determining that he suffers a marked left femur disability. As such, separate ratings under DCs 5251, 5252, or 5253 and 5255 would improperly constitute ratings for duplicative or overlapping symptomatology (pyramiding). 38 C.F.R. § 4.14. Esteban v. Brown, 6 Vet. App. 259 (1994). Accordingly, a rating in excess of 30 percent for left femur disability is not warranted under the old regulation. Under the new regulation Under the new regulation, DC 5255 provides that impairment of femur (other than nonunion or facture of surgical neck of the hip joint) is evaluated under DCs 5250-54 as opposed to analyzing whether there is moderate or marked hip disability under the old regulation. As analyzed above, a rating in excess of 30 percent under DCs 5250-54 is not warranted. As such, a rating in excess of 30 percent for left femur disability is not warranted under the new regulation. Leg length discrepancy DC 5275 provides that a 10 percent rating is assigned for a shortening of a lower extremity of 1.25 inches to 2 inches (3.2 cms to 5.1 cms). A 20 percent rating is warranted for a shortening of 2 inches to 2.5 inches (5.1 cms to 6.4 cms). A 30 percent rating is assigned for a shortening of a lower extremity of 2.5 inches to 3 inches (6.4 cms. to 7.6 cms). A 40 percent rating is assigned for a shortening of a lower extremity of 3 inches to 3.5 inches (7.6 cms. to 8.9 cms). A 50 percent rating is assigned for a shortening of a lower extremity of 3.5 inches to 4 inches (9.8 cms. to 10.2 cms). A maximum 60 percent rating is assigned for a shortening of a lower extremity over 4 inches (over 10.2). DC 5275. Note: Measure both lower extremities from anterior superior spine of the ilium to the internal malleolus of the tibia. Not to be combined with other ratings for fracture or faulty union in the same extremity. DC 5275. Of note, DC5275 has not been changed by the new regulation effective February 7, 2021. VA examination in September 2015 shows that the Veteran's left leg was 1 cm shorter than his right leg, which does not result in any compensable rating under DC 5275. VA examination dated September 17, 2019 shows that his left leg was 6 cms shorter than his right leg, which results to a 20 percent rating under DC 5275. Accordingly, a 20 percent rating under DC 5275 is granted. K. R. Laffitte Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Wang, 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.