Citation Nr: 21026124 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 13-32 787 DATE: April 29, 2021 ORDER Entitlement to a rating of 30 percent, but no greater, for left femur fracture with degenerative arthritis of the left knee is granted. FINDING OF FACT The Veteran’s left femur fracture with degenerative arthritis of the left knee has resulted in marked knee or hip disability, to include no more than slight instability of the left knee, limitation of knee extension to no more than 10 degrees, and hip adduction such that the Veteran cannot cross his legs. CONCLUSION OF LAW The criteria for entitlement to a rating of 30 percent, but no greater, for left femur fracture with degenerative arthritis of the left knee have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.40, 4.45, 4.71a, Diagnostic Codes 5250-5261. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from July 1971 to November 1973. This appeal comes to the Board of Veterans’ Appeals (Board) from an October 2008 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided sworn testimony in support of his appeal on the matters of entitlement to nonservice-connected pension and a rating in excess of 20 percent for left femur fracture with degenerative arthritis of the left knee during a hearing before the undersigned Veterans Law Judge in November 2016. The Board notes that the Veteran testified before a different Veterans Law Judge in July 2020 as to the issues of entitlement to an increased rating and earlier effective date for traumatic brain injury and entitlement to total disability due to unemployability. Those issues will be adjudicated by the Board in a separate decision. Further, the Board notes that in June 2020 the Veteran filed a substantive appeal as to the issues of entitlement to an increased rating and earlier effective date for right knee disability. In addition, in February 2020, the Veteran filed a Board appeal under the Appeals Modernization System as to the issue of entitlement to an increased rating and earlier effective date for posttraumatic stress disorder. Board hearings have not yet been held with respect to either appeal. 1. Entitlement to a rating in excess of 20 percent for left femur fracture with degenerative arthritis of the left knee Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. The Veteran contends that he is entitled to a higher rating for his left femur fracture with degenerative arthritis of the left knee. The Veteran is currently assigned a 20 percent rating under Diagnostic Code 5255 for impairment of the femur. 38 C.F.R. § 4.71a. At the time the rating was assigned, the criteria stated that a 10 percent rating is warranted for malunion of the femur with slight knee or hip disability. A 20 percent rating is warranted with moderate knee or hip disability, and a 30 percent rating assigned with marked knee or hip disability. A 60 percent rating is warranted for fracture of the surgical neck with false joint or for nonunion, without loose motion, weightbearing preserved with aid of brace. The highest rating of 80 percent is warranted for fracture of shaft or anatomical neck with nonunion, with loose motion (spiral or oblique fracture). 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). Under the revised rating criteria for Diagnostic Code 5255, the criteria for 60 and 80 percent ratings remain unchanged. The 10, 20, and 30 percent ratings were eliminated, with malunion instead to 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. 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); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). 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; Kuzma, 341 F. 3d 1327. According to MERRIAM WEBSTER, “slight” means “small of its kind or in amount”. See www.merriam-webster.com/dictionary/slight. “Moderate” means “tending toward the mean or average amount or dimension”. See www.merriam-webster.com/dictionary/moderate. “Marked” means “having a distinctive or emphasized character”. See www.merriam-webster.com/dictionary/marked. 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) (“[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 criteria.”). 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). The Board has reviewed the Veteran’s June 2011, December 2016, January 2018, June 2019, and August 2019 VA examinations, his VA treatment records throughout the period on appeal, and his November 2016 hearing testimony, as well as all other evidence of record. The Board notes that findings throughout the period on appeal have included limitation of motion in both the knee and the hip, pain with and without weight bearing, difficulty standing after sitting for an extended period, and knee instability. The Board finds that the evidence overall supports a 30 percent rating under Diagnostic Code 5255 as the Veteran’s disability more closely approximates marked knee or hip disability. The Board finds that a rating in excess of 30 percent is not warranted under Diagnostic Code 5255 as there has not been fracture of the surgical neck of the femur with false joint or nonunion of the shaft or anatomical neck of the femur. Even considering the Veteran’s lay reports of symptoms and noted functional loss, the Board finds that the degree of additional limitation reflected by the statements that would not result in symptoms more nearly approximating fracture of the surgical neck of the femur, or fracture of shaft or anatomical neck of the femur. The Board has also considered the other diagnostic codes pertaining to the hip the knee. 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). Here, the Board finds that separate ratings under both Diagnostic Code 5255 and Diagnostic Codes 5250 to 5253 pertaining to the hip or Diagnostic Codes 5256 to 5261 pertaining to the knee is not permissible as impairment, including pain, loss of range of motion, and instability, of the knee and hip are already considered by the 30 percent rating under Diagnostic Code 5255 contemplating “marked” disability. However, the Board has also considered whether rating the Veteran’s knee and hip disabilities under separate diagnostic codes instead of under Diagnostic Code 5255 would permit a higher combined rating. The Veteran’s January 2018 VA examination indicates that the Veteran has slight instability in his left knee, impairment that warrants a 10 percent rating under Diagnostic Code 5257. The Veteran’s January 2018 and August 2019 VA examinations indicate that the Veteran’s left knee extension is limited to 10 degrees, impairment that warrants a 10 percent rating under Diagnostic Code 5261. June 2019 and August 2019 VA examinations indicate that the Veteran’s left hip adduction is limited such that the Veteran cannot cross his legs, impairment that warrants a 10 percent rating under Diagnostic Code 5253. A preponderance of the evidence weighs against finding that the Veteran has compensable limitation of left knee flexion such that a rating would be warranted under Diagnostic Code 5260 or limitation of extension or flexion of the thigh such that a rating would be warranted under Diagnostic Code 5251 or 5252. The evidence further does not reflect that dislocated or removal of semilunar cartilage in the left knee is a manifestation of the Veteran’s service-connected disability such that a rating would be warranted under Diagnostic Code 5258. The Board further finds that a preponderance of the evidence is against ratings in excess of 10 percent under Diagnostic Codes 5257, 5261, or 5253. (Continued on the next page)   Thus, the Board finds that rating left knee, hip, and thigh impairment separately would not result in a rating in excess of 30 percent. The Board acknowledges all of the Veteran’s femur fracture symptomatology and the difficulties it causes him involving both his knee, hip, and thigh, but finds that all of those manifestations are contemplated by a 30 percent rating under Diagnostic Code 5255. Thus, based on the forgoing, the Board finds that a 30 percent rating, but no greater, is warranted for the Veteran’s left femur fracture with degenerative arthritis of the left knee. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Christensen 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.