Citation Nr: 21029314 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 14-33 083 DATE: May 13, 2021 ORDER Entitlement to a rating in excess of 20 percent for residuals of a left femur fracture (left femur disability) is denied. FINDING OF FACT The preponderance of the evidence shows that the Veteran's left femur disability was not manifested by adverse symptomatology that equates to at least impairment of the femur with malunion with or without marked knee or hip disability, ankylosis, or limitation of left thigh flexion to 20 degrees even when considering complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups or a flail joint at any time during the appeal. CONCLUSION OF LAW The criteria for ratings in excess of 20 percent for a left femur disability have not been met at any time during the appeal. 38 U.S.C. §§ 1155, 5100, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.27, 4.71a, Diagnostic Codes 5250 to 5255. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from December 1960 to July1963. The Veteran died in February 2017. The appellant is his surviving spouse and the regional office (RO) granted her February 2017 motion for substitution. In February 2016 the Board of Veterans' Appeals (Board), among other things, remanded the claim for an increased rating for the left femur disability. In an August 2016 decision by a Veterans' Law Judge not the undersigned, the Board denied the Veteran's claim for a rating in excess of 20 percent for the left femur disability. The Veteran appealed the August 2016 Board decision to the United States Court of Appeals for Veterans Claims (Court) and following his death in February 2017 the appellant continued that appeal. In a March 2018 decision, Judge Allen set aside and remanded the Board's decision. In January 2019 and August 2020, the Board remanded the appeal to address the concerns raised by the Court. Post-Remand Development and Compliance with the Court Decision and Board Remand Initially, the Board finds that the post-Remand development both addressed the concerns raised by the Court in the March 2018 decision and complied with the Board remands because the VA opinions dated in November 2020 and January 2021 provide, collectively, VA with medical evidence adequate to rate the Veteran's left femur disability, to include whether it every included adverse neurological symptomatology and/or caused marked left hip and/or left knee disabilities and the opinions as to the severity of the disability considered his complaints of pain. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). As to the Court's holdings in Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Board notes neither decision had yet been issued by the Court when the appeal was first adjudicated in the August 2016 decision. Moreover, the Board notes that the Veteran died before he could be provided with a VA examination to obtain the information asked for by the Court in these decisions. Additionally, and importantly, even if the Veteran had not died, the Board is highly doubtful if it would have been possible to obtain medical opinions addressing the concerns raised by the Court in Correia and Sharp, issued after the Board's prior decision in this case, because the record shows that at the VA examinations he attended in the years shortly before his death (see VA examinations dated in May 2013 or the April 2016) the problems caused by his non-service connected Parkinson's disease prevented the examiners from obtaining complete range of motion studies because, in substance, unfortunately, he was unable to comprehend the request and resisted attempts to conduct the studies. Some form of deeply hypothetical, retroactive, medical opinion in this case is unambiguously unwarranted in the clear facts of this case: No medical profession, based on the evidence that exists, could provide such a medical opinion based, in part, on caselaw that did not exist at the time of the Board's prior decision. Furthermore, the Board finds that further delay by remanding the appeal to obtain a retroactive medical opinion is not required, is not warranted, and would not succeed because such an opinion cannot provide any more information as to the adverse symptomatology caused by the service-connected left femur disability, including limitation of motion taking into account complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups, then what the Board can already find in the claims file. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). There is no basis to remand this appeal again. Retroactive medical opinions in many situations, such as this one, simply will not succeed. Lastly, the Board also finds that the post-Remand development complied with the Remands because while the appeal was in Remand status all identified and available VA and private treatment records were obtained and associated with the record. See 38 U.S.C. § 5103A(b); Stegall, supra. The Court's Concern Regarding a Neurological Disorder Initially, and as directed by the Court in this decision, the Board will address the appellant's claim that the Veteran was entitled to an increased and/or a separate rating for his left femur disability because of adverse neurological symptomatology (i.e., "[a]ppellant contends the Board discounted her lay statements regarding pain and numbness in the veteran's 'entire leg including the hip' and that the numbness in her husband's leg was worse on the left.") perhaps under 38 C.F.R. §§ 4.123, 4.124. 4.124a. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994) (holding that in cases where the record reflects that the appellant has multiple problems due to service-connected disability, it is possible for an appellant to have "separate and distinct manifestations" from the same injury, permitting separate disability ratings. The critical element is that none of the symptomatology for any of the conditions is duplicative or overlapping with the symptomatology of the other conditions.). However, the VA examiner in November 2020 clearly and unambiguously opined, in substance, that the Veteran's left femur disability did not include, and never included, adverse neurological symptomatology. Moreover, the Board finds the November 2020 medical opinion the most probative evidence of record because it was held for the express purpose of obtaining an opinion as to whether the Veteran's service-connected left femur disability had a neurological component and the negative opinion provided by the examiner was only given after a review of the record as well as because it is supported by citation to the service treatment records, the post-service medical records, the appellant's competent and credible lay claims regarding observable symptomatology, and controlling medical literature as well as supported by medical reasoning. See Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators..."). Further, while the Veteran was competent to report on the symptoms than came to him via his own senses (i.e., pain and numbness) and the appellant is competent to report on the symptoms she observed (i.e., the Veteran showing signs of pain and numbness), the Board finds that neither is competent to diagnose a neurological disorder because diagnosing it requires special medical training that she does not have. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Moreover, the Board finds the VA examiner's opinion as to the Veteran's adverse symptomatology not including a neurological component more probative than the lay claims to the contrary even though the symptomatology is observable by a lay person because the examiner has medical training. See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). Accordingly, the Board finds that the most probative evidence of record shows that the Veteran left femur disability did not include a neurological disorder manifested by pain and numbness notwithstanding the appellant's claims to the contrary. See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when decision makers give an adequate statement of reasons and bases). The Musculoskeletal Rating Claim The appellant claims, in substance, that the Veteran was entitled to a higher rating for his left femur disability at all times during the pendency of the appeal. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by a Diagnostic Code. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to 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. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's left femur disability is rated as 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5255. In this regard, the Board notes that during the pendency of the appeal VA amended some of its' criteria for rating musculoskeletal disabilities effective February 7, 2021. See 85 Fed Reg 76453 (November 30, 2020); 85 Fed Reg 85523 (December 29, 2020); 86 Fed Reg 8142 (February 4, 2021). However, the Board finds that none of the amendments change how the Veteran's left femur disability is rated under Diagnostic Code 5255 because the record is uniform in showing that the Veteran did not have malunion of the femur. See, e.g., VA examinations dated in May 2013 and April 2016. Likewise, the Board finds that none of the amendments change how the Veteran's left femur disability is rated under Diagnostic Codes 5250 to 5254 because these rating criteria were not amended. Therefore, the Board finds that a Remand to provide the appellant with notice of these new rating criteria and have the claim adjudicating applying them at the RO is not required. See Sabonis, supra. As to rating the Veteran's left femur disability, the Board notes that the old and new criteria for rating hip disorders provides that ankylosis which is "favorable" (in flexion at an angle between 20 degrees and 40 degrees, and slight adduction or abduction) warrants a 60 percent rating, "intermediate" warrants a 70 percent rating, and "unfavorable" (extremely unfavorable ankylosis, the foot not reaching ground, crutches necessitated) warrants a 90 percent rating under Diagnostic Code 5250; limitation of thigh extension to 5 degrees warrants a 10 percent rating under Diagnostic Code 5251; limitation of thigh flexion to 45 degrees warrants a 10 percent rating, limitation of thigh flexion to 30 degrees warrants a 20 percent rating, and limitation of thigh flexion to 20 degrees warrants a 30 percent rating under Diagnostic Code 5252; lost abduction causing the Veteran to not be able to cross his legs warrants a 10 percent, not being able to toe-out more than 15 degrees warrants a 10 percent rating, and abduction lost beyond 10 degrees warrants a 20 percent rating under Diagnostic Code 5253; a flail joint warrants a 80 percent rating under Diagnostic Code 5254. See 38 C.F.R. § 4.71a. The Board also notes that the old Diagnostic Code 5255 provides that impairment of the femur with malunion with moderate knee or hip disability warrants a 20 percent rating, impairment of the femur with malunion with marked knee or hip disability warrants a 30 percent rating, with nonunion, without loose motion, and weight bearing preserved with aid of brace warrants a 60 percent rating, with a fracture of surgical neck with false joint warrants a 60 percent rating, and fracture of shaft or anatomical neck with nonunion and loose of motion (spiral or oblique fracture) warrants an 80 percent rating. See 38 C.F.R. § 4.71a. As to the new Diagnostic Code 5255, it provides that impairment of the femur with malunion with knee or hip disability are evaluated under Diagnostic Codes 5256, 5257, 5260, or 5261 for the knee or 5250 to 5254 for the hip, whichever results in the highest evaluation and impairment of the femur with nonunion, without loose motion, and weight bearing preserved with aid of brace warrants a 60 percent rating, with a fracture of surgical neck with false joint warrants a 60 percent rating, and fracture of shaft or anatomical neck with nonunion and loose of motion (spiral or oblique fracture) warrants an 80 percent rating. See 38 C.F.R. § 4.71a. In this regard, the Board notes that any application of new Diagnostic Code 5255 would only be effective from the date of the amendment-February 7, 2021. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Next, the Board notes that when evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis, and must be considered when raised by the claimant or when reasonably raised by the record. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Moreover, the Court in Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016) held that the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to the evaluation of musculoskeletal disabilities under Diagnostic Codes predicated on range of motion measurements. In Burton v. Shinseki, 25 Vet. App. 1 (2011), the Court held that 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. Furthermore, in Jones Shinseki, 26 Vet. App. 56, 61-63 (2012) the Court held that the Board may not deny entitlement to an increased rating on the basis of relief provided by medication when those effects are specifically contemplated by the rating criteria. Lastly, in Chavis v. McDonough, No. 18-2928 (2021) the Court held that ankylosis of the spine may be shown based on symptoms of fixation of the joint equivalent to ankylosis. As to a higher rating for the left femur disability under old and new Diagnostic Code 5255, the Board notes that the claims files does not contain a diagnosis of femur malunion despite the disability being rated under this Diagnostic Code. See, e.g., VA examinations dated in May 2013 and April 2016. In fact, in April 1963 x-rays showed a well-healed fracture of the femur with internal fixation and union and alignment excellent but with slight deformity involving the superior lateral aspect of the acetabulum. Similarly, the May 2013 VA examiner reported that April 2007 x-rays, which noted mild degenerative changes of the left hip, also noted that position and alignment of the hip was normal, and the fracture line appeared healed. Likewise, the examiner noted that May 2011 x-rays of the left hip and femur revealed evidence of orthopedic plate and screws present, fixating a healed subtrochanteric left femur fracture with the plate and screws extended from the left hip to the junction of the middle and distal third of the femur. Further, the April 2016 VA examiner specifically, opined that the Veteran's left femur disability did not include malunion. Lastly, the Board notes that the record on appeal is negative for a marked left hip or a marked left knee disability. Tellingly, while adverse left hip and/or left knee symptomatology is noted in the Veteran's treatment records as well as at his May 2013 and April 2016 VA examinations, the May 2013 VA examiner opined that the Veteran's left knee disorders were unrelated to service or the service-connected left femur disability but instead due to his nonservice-connected Parkinson's disease. Likewise, the April 2016 VA examiner implied that any current left hip or left knees problems were due to his nonservice-connected Parkinson's disease because the Veteran did not have any problems ambulating before developing Parkinson's disease. Moreover, the January 2021 VA examiner after a review of the record on appeal specifically opined that the Veteran did not have a marked left hip or a marked left knee disability die his service-connected left femur disability. Telling, the above x-ray findings and the medical opinions are not contradicted by any other medical evidence of record as well as supported by citation to the record and medical reasoning. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Therefore, the Board finds that they are the most probative evidence of record. See Owens, supra. Likewise, the Board finds that the above x-ray findings and the medical opinions that the Veteran did not have malunion nor marked left hip or left knee disabilities more probative than any lay claims to the contrary from first the Veteran and know the appellant because these are medical findings and because the medical professionals have greater medical training. See Davidson, supra; Black, supra. Consequently, the Board finds that a higher rating is not warranted for the Veteran's service-connected left femur disability under old and new Diagnostic Code 5255 at all times during the pendency of the appeal because the preponderance of the evidence shows that it neither includes malunion nor marked left hip or left knee disabilities. Hart, supra; Fenderson, supra. As to a higher rating for the left femur disability due to ankylosis under Diagnostic Code 5250, the Board notes that the claims file does not contain a diagnosis of ankylosis of the left hip. In fact, the April 2016 VA examiner opined that the left hip was not ankylosed and this medical opinion is not contradicted by any other medical evidence of record. See Colvin, supra. The Board also finds that even when considering first the Veteran and know the appellant's reports of pain as per 38 C.F.R. §§ 4.40, 4.45, 4.59 and the Court's holding in Correia, Sharp, Mitchell, Burton, Southall-Norman, DeLuca, and Chavis, as well as when considering there competent reports of observable adverse symptomatology (see Davidson, supra), the disability does not meet the criteria for a higher rating by rating it is ankylosis because the record is uniform in documenting at least some motion and ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992); Also see Owens, supra. The Board also finds that neither the Veteran nor the appellant was competent to provide the missing diagnosis of ankylosis because this is a medical finding. See Davidson, supra. Moreover, the Board finds the VA examiner's opinion as to the Veteran's adverse symptomatology more probative than any lay claims to the contrary even though the symptomatology is observable by a lay person because the examiner has medical training. See Black, supra. Consequently, the Board finds that a higher evaluation is not warranted for the Veteran's service-connected left femur disability under Diagnostic Code 5250 at all times during the pendency of the appeal. Hart, supra; Fenderson, supra. As to an increased rating for the left femur disability due to loss of left hip extension under Diagnostic Code 5251 and/or lost abduction under Diagnostic Code 5253, the Board notes that the 20 percent disability rating already in place for the disability meets or exceeds the maximum rating possible under these Diagnostic Codes. Consequently, the Board finds that a higher evaluation is not warranted for the Veteran's service-connected left femur disability under Diagnostic Codes 5251 and 5253 at all times during the pendency of the appeal. Hart, supra; Fenderson, supra. As to a rating in excess of 20 percent for the left femur disability due to loss of left hip flexion under Diagnostic Code 5252, the Board finds that even when considering the Veteran's complaints of pain as per 38 C.F.R. §§ 4.40, 4.45, 4.59 and the Court's holding in Correia, Sharp, Mitchell, Burton, Southall-Norman, and DeLuca, as well as when considering first the Veteran and know the appellant's competent reports of his observable adverse symptomatology (see Davidson, supra), the record does not show the Veteran meet the criteria for a higher, 30 percent, rating. The Board has reached this conclusion because, while left hip flexion was not specifically reported by either the May 2013 or the April 2016 VA examiner, apparently because of the problems caused by the Veteran's non-service connected Parkinson's disease, when taken together nothing at these VA examinations show that flexion was ever 20 degrees or less. See Owens, supra. In this regard, while the May 2013 VA examiner opined that examination of the lower extremities revealed less movement than normal bilaterally with the left knee/lower leg condition resulted in difficulty with squatting, bending, climbing, and prolonged walking, it was also opined that the left knee problems were unrelated to active duty or the healed left proximal femur fracture. The Board has reached this conclusion because the April 2016 VA examiner reported that the Veteran was able to ambulate and perform all of his activities of daily living prior to developing Parkinson's disease and because this examiner opined that there was no evidence of pain with weight bearing nor evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. Tellingly, the April 2016 VA examiner also opined that the Veteran's disabling symptoms were due to Parkinson's disease and not the left femur fracture. The Board has also reached this conclusion that the Veteran never met the criteria for an increased rating under Diagnostic Code 5252 because of lost left thigh flexion because his treatment records never show flexion being 20 degrees or less due to his service-connected left femur disability. See Colvin, supra. Therefore, the Board finds that the most probative evidence of record shows that the Veteran did not have limitation of left thigh flexion to 20 degrees or less required for at least a higher, 30 percent, rating at any time during the pendency of the appeal. 38 C.F.R. § 4.71a; Fenderson, supra; Hart, supra. As to a higher rating for the left femur disability under Diagnostic Codes 5254, the Board notes that the claims files does not contain a diagnosis of a flail joint. In fact, x-rays dated in April 1963, April 2007, and May 2011 do not show a flail joint. Moreover, the April 2016 VA examiner opined that the Veteran's left femur disability did not include a flail joint and this medical opinion is not contradicted by any other medical evidence of record. See Colvin, supra. The Board also finds that neither the Veteran nor the appellant was competent to provide the missing diagnosis of a flail joint because this is a medical finding. See Davidson, supra. Moreover, the Board finds the x-ray findings and the VA examiner's opinion as to the Veteran's adverse symptomatology more probative than any lay claims to the contrary even though the symptomatology is observable by a lay person because the examiner has medical training. See Black, supra. Consequently, the Board finds that a higher rating is not warranted for the Veteran's service-connected left femur disability under Diagnostic Code 5254 at all times during the pendency of the appeal. Hart, supra; Fenderson, supra. Therefore, the Board also finds that the criteria for ratings in excess of 20 percent for the Veteran's left femur disability are not met at any time during the appeal under 38 C.F.R. § 4.71a. See Fenderson, supra; Hart, supra; Davidson, supra; Colvin, supra. In reaching the above conclusions, the Board also considered the doctrine of reasonable doubt. 38 U.S.C. § 5107(b). However, as the preponderance of the evidence is against the claim, the Board finds that the doctrine is not for application. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert, supra. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.T. Werner, 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.