Citation Nr: 21076774 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 13-32 674 DATE: December 27, 2021 ORDER Entitlement to a disability rating higher than 20 percent for service-connected residuals of a fracture of the right femur and fibula, resulting in limitation of right knee motion, is denied. A separate 10 percent disability rating for right hip arthritis, associated with service-connected residuals of a fracture of the right femur and fibula, is granted. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU), to include on an extraschedular basis, is remanded. FINDINGS OF FACT 1. At no time during the appeal period has the Veteran's right knee limitation of motion, associated with service-connected residuals of a fracture of the right femur and fibula, result in flexion limited to 15 degrees or less or extension limited to 20 degrees or less, and there is no evidence of any ankylosis or current malunion or nonunion of the tibia or fibula, or genu recurvatum. 2. The Veteran has been found to have right hip arthritis associated with the service-connected residuals of a fracture of the right femur and fibula, resulting in painful, noncompensable limitation of right hip motion. CONCLUSIONS OF LAW 1. The criteria for a disability rating higher than 20 percent for service-connected residuals of a fracture of the right femur and fibula, resulting in limitation of right knee motion, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.59, 4.71a, Diagnostic Codes (DCs) 5260-5261. 2. The criteria for a separate 10 percent disability rating right hip arthritis, associated with the service-connected residuals of a fracture of the right femur and fibula have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.59, 4.71a, DCs 5003, 5251-5252. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1971 to February 1974 and from January 1976 to October 1978. The current matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Veteran and his son testified at a hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. In September 2019 and April 2021, the Board remanded the claim for a higher rating for service-connected residuals of a fracture of the right femur and fibula on appeal to the Agency of Original Jurisdiction (AOJ) for further development. In a January 2021 rating decision, the AOJ granted service connection for residual surgical scars of open reduction/internal fixation of right femur and fibula, assigning a noncompensable rating, effective November 16, 2010, and assigned a separate 20 percent rating for instability associated with the residuals of the fracture of the right femur and fibula, effective December 28, 2020. After a second remand, in an August 2021 rating decision, the AOJ granted a separate 10 percent rating specifically for right knee instability, effective August 12, 2021. As the Veteran has not appealed the assigned rating for the residual surgical scars or the separate ratings for instability associated with the service-connected disability, those issues are not currently before the Board. Increased Ratings At the outset, the Board is satisfied that all notification and development actions needed to fairly adjudicate the higher rating claims adjudicated herein have been accomplished, to the extent possible. The Veteran has been notified of what is needed to substantiate a higher rating claim, and relevant VA examination reports and VA treatment records have been associated with the claims file. These reports also document the Veteran's lay statements regarding the claims decided herein. Further, the AOJ substantially complied with the Board's April 2021 remand directives insofar as arranging for the Veteran to undergo new VA examination, as directed, and collectively, new examination reports provide adequate evidence to rate disability associated with the Veteran's service-connected residuals of a fracture of the right femur and fibula. There is no identified evidence for which the Veteran has provided appropriate authorization to obtain, or other indication of existing outstanding evidence relevant to this appeal. In this regard, while the AOJ sent him a letter in November 2019, following the Board's first remand, requesting that he provide records of identified private treatment, or provide VA with authorization to obtain the records on his behalf, he did not respond. Further, he has not alleged any error or omission in the assistance provided. Hence, he is not prejudiced by the Board proceeding to a decision on this appeal at this juncture. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating 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. Reasonable doubt as to the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to a claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If the preponderance of the evidence weighs against the claim, it is denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Board will consider entitlement to staged ratings to compensate for times since filing of a claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Right femur and fibula fracture residuals, with limitation of right knee motion A 20 percent rating is in effect for the right knee limitation of motion associated with the service-connected right femur and fibular fracture residuals, pursuant to the criteria for limitation of leg flexion found at 38 C.F.R. § 4.71a, DC 5260. Diagnostic Code 5260 provides for a zero percent (noncompensable) rating for leg flexion limited to 60 degrees. 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 15 degrees. Id. Knee disabilities resulting in limitation of leg extension may also be rated under DC 5261. Under this Diagnostic Code, a noncompensable rating is warranted for leg extension limited to 5 degrees. A 10 percent rating is warranted for extension limited to 10 degrees. A 20 percent rating is warranted for extension limited to 15 degrees. A 30 percent rating is warranted for extension limited to 20 degrees. A 40 percent rating is warranted for extension limited to 30 degrees. The highest rating of 50 percent, for limitation of extension, is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. 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, may 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. DeLuca v. Brown, 8 Vet. App. 202 (1995); 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) ("[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 § 4.71a criteria."). In Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 requires that, whenever possible, VA examiners 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." 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. At a May 2011 VA examination, the Veteran described his service-connected disability as getting progressively worse. He reported using ibuprofen to treat pain approximately every other day. The examiner described the Veteran's gait as antalgic. The Veteran reported having flare-ups of right knee disability, and swelling, which were precipitated by prolonged walking or standing. Range of motion testing revealed right knee flexion limited to 110 degrees, with normal extension. Objective evidence of pain was present following three repetitions. Imaging studies revealed severe degenerative changes of the right knee joint particularly involving the lateral compartment and patellofemoral joint. A December 2011 VA orthopedic surgery report noted that the Veteran was seeking removal of hardware from his knee from prior surgery. Range of motion testing at that time revealed flexion limited to 100 degrees. Similar findings were noted in March 2012. At an April 2016 consultation, he reported that he had a constant, dull ache in his right knee for years, and that he had difficulty walking any distance. Range of motion testing again revealed flexion limited to 100 degrees. Findings from a December 2020 VA-contracted examination indicated that the Veteran did not report flare-ups of right knee disability at that time. Right knee flexion was limited to 80 degrees, with pain on flexion. Extension was normal. The examiner noted that pain, fatigue, and weakness caused functional loss, but no additional loss of range of motion. The examiner further assessed that the Veteran had objective evidence of pain when the right knee was use in non-weight bearing. The examiner indicated that passive range of motion was the same as active. A May 2021 VA-contracted examination report noted the Veteran's report of knee flare-ups, with the knee going out of socket, and giving way, and with elevated pain, without a specific cause. The Veteran described radiating pain into the hip and lower lumbar spine. Flares occurred one to two times per week, lasting from a few hours up to a half day. The Veteran reported functional impairment with walking or standing during such flare-ups. He alleviated flare-ups with a heat pad, acetaminophen, rest, and knee elevation. Passive and active range of motion findings were the same as reported in the December 2020 examination, with pain beginning at 80 degrees flexion. There was no evidence of pain on weight-bearing or non-weight bearing with the joint at rest. The examiner indicated that the Veteran did not have pain, fatigability, weakness, lack of endurance, or incoordination that significantly limited his functional ability during flare-ups or after repeated use over a period of time. The Veteran's most recent VA-contracted examination was completed in August 2021. The Veteran's flexion was again limited to 80 degrees, but, after three repetitions, he had further limitation to 70 degrees. Passive range motion was noted to be the same as active range of motion. Additional functional loss was due to pain, fatigability, and weakness. The examiner assessed that there was no further evidence that pain, fatigability, weakness, lack of endurance, or incoordination significantly limited functional ability with repeated use over time. The examiner indicated that the Veteran had pain on weight-bearing, and active and passive motion, but not on non-weight bearing. Considering the evidence in light of applicable rating criteria and rating principles delineated above, the Board finds that a disability rating higher than 20 percent for the right knee limitation of motion is not warranted at any point during the pertinent appeal period. In this regard, there is no evidence of record indicating that the Veteran has had flexion limited to 15 degrees or less, or that that left leg extension limited to greater than 20 degrees. Even affording the Veteran the full benefit of the doubt and considering findings of periodic flare-ups of his disability and pain on various ranges of motion, his limitations have never approximated the results for the next higher 30 percent rating. Testing results during the pertinent examinations reveal that he has been shown to have flexion limited to 70 degrees at most, and that he has not ever been shown to have limitation of extension. Accordingly, there is no basis to find that the Veteran had more severe limitation of motion such as to warrant a disability rating higher than 20 percent at any point during the appeal period. The Board has also considered other diagnostic codes pertaining to the knee and leg. 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); 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). The Veteran, however, has not been shown to have any ankylosis of the right knee, dislocation of semilunar cartilage, or to have any nonunion or malunion of the tibia or fibula, or genu recurvatum associated with the disability. 38 C.F.R. § 4.71a, DCs 5256, 5258, 5262-5263. While has been noted to have pain and instability due to meniscectomy residuals, as noted above, he is in receipt of ratings for instability, including of the knee under DC 5257. Thus, any further rating for this symptomology is not permitted by law. See Esteban, Lyles, supra. In reaching this decision, the Board has considered the general lay assertions that a higher rating was warranted for the right knee limitation of motion. To the extent, however, that the Veteran believes that a higher rating is warranted for the right knee limitation of motion, the Board concludes that the findings during medical evaluations are more probative than are the lay assertions of record. As such, in reaching the conclusion that a disability rating higher than 20 percent is not warranted for the disability, the Board has considered the general lay assertions of record, but has also relied heavily on the examination reports, and VA medical evidence of record which fails to show that the Veteran met the criteria for a disability rating higher than 20 percent for the disability resulting from right knee limitation of motion at any point during the appeal period. Accordingly, the preponderance of the evidence is against the claim for a disability rating higher than 20 percent for the service-connected residuals of a fracture of the right femur and fibula resulting in limitation of right knee motion. Separate rating for right hip arthritis The evidence of record indicates that the Veteran's service-connected residuals of a fracture of the right femur and fibula have also resulted in right hip arthritis, resulting in painful and limited right hip motion. A December 2020 VA-contracted examination report indicated that the right hip degenerative changes were due to the right knee instability causing the right hip seating to be displaced, and that giving way of the knee caused a fall resulting in right hip fracture. An August 2021 VA-contracted hip examination report specifically indicated that the Veteran's right hip arthritis constituted a progression of his service-connected disability. Notably, the rating criteria for degenerative arthritis found at DC 5003 provide that the affected joint should be rated based on limitation of motion. When limitation of motion of a specific joint or joints is noncompensable under the appropriate diagnostic codes, however, a minimum 10 percent rating is for application for each such major joint or group of minor joints affected by limitation of motion. Relevant criteria for rating limitation of hip motion are found at 38 C.F.R. § 4.71a, DCs 5251-5253. Diagnostic Code 5251 provides for a maximum 10 percent rating for extension of the thigh limited to 5 degrees. Under DC 5252, 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. Under DC 5253, a 10 percent rating is warranted for limitation of rotation of affected leg, resulting in an inability to toe out more than 15 degrees. A 10 percent rating is also warranted for limitation of adduction, resulting in an inability to cross legs. A maximum 20 percent rating is warranted for limitation of abduction, with motion lost beyond 10 degrees. 38 C.F.R. § 4.71a Turning to the evidence of record, at the May 2011 VA examination, the Veteran reported having right hip pain, but he denied having flare-ups of hip disability. Right hip flexion was limited to 105 degrees, extension was limited to 20 degrees, and right hip abduction was limited to 30 degrees. The examiner noted that pain caused the range of motion limitations. X-ray findings noted degenerative changes in the right hip. VA treatment records associated with the claims file indicate that the Veteran underwent right hip surgery conducted by a private healthcare provider in September 2017, apparently consisting of a partial hip replacement. Notably, however, although the AOJ requested that the Veteran provide, or provide VA with authorization to obtain, his relevant private treatment records in a November 2019 letter, following the Board's September 2019 remand, the Veteran did not respond. Thus, the extent of the Veteran's apparent hip surgery and resulting limitations or impairments is not clear, and the VA medical evidence dated subsequent to this surgery provides conflicting evidence with respect to the nature and extent of apparent partial hip replacement conducted at that time. The Veteran's right hip was again evaluated during a VA-contracted examination in December 2020. The examination report noted that the Veteran fell in 2017 after his right knee gave way, resulting in a fractured right hip, and subsequent surgery. The Veteran reported experiencing a "catching" of his hip joint when it was cold or damp, but did not otherwise report flare-ups of disability. Right hip range of motion testing revealed flexion limited to 80 degrees, extension limited to 30 degrees, abduction limited to 40 degrees, adduction limited to 25 degrees, external rotation limited to 50 degrees, and internal rotation limited to 40 degrees. Passive ranges of motion were the same as the active ranges of motion. The examiner indicated that while pain was present on all ranges of motion, it did not result in additional functional loss. The examiner estimated that the Veteran would have substantially the same range of motion findings after repeated use over a period of time. The examiner indicated that there was objective evidence of pain when the right hip was used in non-weight bearing. During the August 2021 VA-contracted examination, the Veteran did not report having flare-ups of hip disability. Right hip range of motion testing revealed flexion limited to 70 degrees, extension limited to 30 degrees, abduction limited to 45 degrees, adduction limited to 25 degrees, external rotation limited to 60 degrees, and internal rotation limited to 40 degrees. Pain was noted on extension. The examiner indicated that there was otherwise no evidence of pain in weight-bearing or non-weight bearing, nor on active or passive motion. Passive ranges of motion were the same as active. The examiner assessed that the evidence did not suggest that pain, fatigability, weakness, lack of endurance, or incoordination significantly limited functional ability with repeated use over time. Given the above, the evidence does not support a finding that the Veteran's right hip limitation of motion has reached a compensable level. There is simply no medical evidence of record showing that he had flexion limited to 45 degrees or less, that he had extension limited to five degrees or less, that he had limitation of abduction beyond 10 degrees, or that he could not cross his legs or toe-out more than 15 degrees. Rather, the medical evaluations of record indicate that his range of motion limitations do not approximate any required limitation for the award of a compensable rating. Notably, however, where he has been continually noted to have some degree of limitation of motion, albeit not reaching a compensable level, and he has been noted to have findings of arthritis throughout the appeal period, and pain accompanying the limitation of right hip motion, the Board finds that a minimum 10 percent rating is warranted for his right hip arthritis for the entirety of the pertinent appeal period. 38 C.F.R. § 4.71a, DC 5003. In reaching this decision, the Board has also considered other rating criteria for disabilities of the thigh and hip. Here, however, there is no indication of record that the Veteran has had any hip ankylosis, or flail or false hip joint, or that he had any current nonunion or malunion involving the femur, associated with the service-connected disability, such as to warrant a disability rating higher than 10 percent. The Board has considered the general lay assertions proffered by the Veteran. To the extent, however, that he may believe that a rating higher than 10 percent for associated right hip arthritis would be warranted at any point during the appeal period, the Board concludes that the findings during medical evaluations are more probative than are the lay assertions of record. For all the foregoing reasons, the Board finds, with resolution of reasonable doubt in the Veteran's favor, that the evidence of record supports a finding that a separate 10 percent disability rating, but no higher, is warranted for his right hip arthritis associated with his service-connected residuals of a fracture of the right femur and fibula. REASONS FOR REMAND TDIU Review of the record reflects that the Veteran has consistently reported not being able to work due to service-connected disability. At his May 2011 VA examination, he maintained that he was terminated from his last employment due to excessive absences as a result of his right knee problems. The August 2021 examiner further noted that the Veteran's service-connected disability impacted his ability to work due to an inability to walk, stand on uneven surfaces, and on weight-bearing for prolonged periods of time. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. When evidence of unemployability is received during the pendency of a claim for an increased evaluation, the claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Here, the Veteran has clearly asserted that he has been terminated from employment and that he has not been able to work for several years due to service-connected disability. Thus, pursuant to Rice, a claim for a TDIU is part of the appeal for higher ratings currently before the Board. Notably, evidence of the nature and extent of the Veteran's prior employment is lacking in the record; thus, clarification is required from him. Further, as he does not currently meet the disability rating criteria to qualify for entitlement to a TDIU on a schedular basis, the Board is prohibited from awarding a TDIU in the first instance. Nonetheless, as he has argued that service-connected disability has precluded him from securing and following substantially gainful employment, his TDIU claim must be referred to VA's Director of Compensation Service for extraschedular consideration. Accordingly, this matter is hereby REMANDED for the following action: 1. Provide the Veteran with a formal TDIU claim form (VA Form 21-8940), and ask that he complete and return the form, identifying his employment activities since November 2009, as well as his educational experience and training. Ensure that he receives appropriate VCAA notice. 2. Following any indicated development of the TDIU claim, where the Veteran does not meet the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a), refer this issue to VA's Director of Compensation Service for extraschedular consideration. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring that the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Wilson, 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.