Citation Nr: 21040849 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 16-62 204 DATE: July 7, 2021 ORDER Entitlement to a 30 percent rating, but no higher, for a left femur fracture with slight shortening of the left leg is granted. FINDING OF FACT Since the date of the Veteran's claim for increase, his left femur disability manifests in symptoms that are "marked" in severity. CONCLUSION OF LAW The criteria for entitlement to a 30 percent rating, but no higher, for a left femur fracture have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 4.1-4.7, 4.40, 4.45, Diagnostic Codes 5003-5255. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1978 to December 1988. This matter is before the Board of Veterans' Appeals (Board) following a Board Remand in November 2020. This matter was originally on appeal from December 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and his wife testified before the undersigned Veterans' Law Judge in August 2019. A copy of the transcript is a part of the record. The matter has been returned to the Board. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155;38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, present level of disability is the primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Under Diagnostic Code (DC) 5255, a 20 percent rating is warranted for malunion with moderate knee or hip disability; a 30 percent rating is warranted for malunion with marked knee or hip disability; a 60 percent rating is warranted for either a fracture of the surgical neck, with a false joint, or for nonunion, without loose motion, and weightbearing preserved with the aid of a brace; and an 80 percent rating is warranted for nonunion, with loose motion (spiral or oblique fracture). The terms "moderate" and "marked" are not defined in the VA Schedule. Rather than applying a mechanical formula, it is incumbent upon the Board to arrive at an equitable and just decision after having evaluated the evidence. 38 C.F.R. § 4.6. Terminology such as "moderate" and "marked" used by VA examiners and others, although an element of evidence to be considered by the Board, are not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. However, as the Veteran's disability is primarily manifested by knee impairment, some guidance regarding severity can be found in DCs 5256 through 5261. Moreover, objective medical evidence is not to be favored over lay evidence in describing a knee disability. English v. Wilkie, 30 Vet. App. 347 (2018). Where functional loss due to painful joint motion is an issue, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Pain itself does not rise to the level of functional loss as contemplated by these sections but may result in functional loss if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination, or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). The two provisions permit consideration of a higher rating based on a greater limitation of motion due to pain on use, including during flare ups, and based on weakened movement, excess fatigability, incoordination, and pain on movement, in addition to range of movement. English v. Wilkie 30 Vet. App. 347 (2018) (citing Mitchell 25 Vet. App. 32, 36-37 (2011); DeLuca, 8 Vet. App. 202, 206 (1995)). For the reasons discussed below, the Board finds that a 30 percent disability rating is warranted for the right femur disability based on the presence of "marked" knee disability throughout the appeal period. At a November 2017 VA examination, the Veteran's left hip range of motion was as follows: flexion limited to 125 degrees, extension limited to 30 degrees, abduction limited to 40 degrees, adduction limited to 20 degrees, external rotation limited to 45 degrees, and internal rotation limited to 35 degrees. Adduction was not so limited such that the Veteran was unable to cross legs. Pain was noted on examination. There was no additional loss of function or range of motion after repetitive testing. The examiner measured the bones of the lower extremities and found that the left leg was shorter than the right leg. The examiner noted the April 2017 x-ray showed a left femoral shaft deformity. The gait was slow favoring the left lower extremity, but the examiner stated the left leg did not turn out on as he watched the Veteran walk an approximate distance of about 100 feet. During the Veteran's September 2018 Board hearing, he explained how his condition has worsened and that he is consistently in pain. He also indicated that he often wears a left knee brace. At the January 2021 VA examination, the left hip range of motion on active and passive testing was noted as flexion limited to 100 degrees, extension limited to 20 degrees, abduction limited to 25 degrees, adduction limited to 20 degrees, external rotation limited to 10 degrees, and internal rotation limited to 25 degrees. Adduction was again not so limited such that you are unable to cross legs. Pain was noted on examination. There was no additional loss of function or range of motion after repetitive testing. The examiner stated that range of motion would remain unchanged with repeated use over time or during flares. The examiner measured the bones of the lower extremities reported that the left leg was shorter than the right leg. He also noted that the Veteran constantly used a cane because of his left hip pain. In a May 2021 statement, the Veteran's representative explained that the Veteran's left hip pain is sharp and throbbing with prolonged weight-bearing and with repetitive transitions from sitting down to standing up. The Veteran reported flare ups as intermittent sharp/stabbing pain occurs several times in any given week, which results in being awakened from sleep or being unable to bear weight. The Veteran can no longer stand or walk for more than several minutes at a time as a result of his left femur disability. (Continued on the next page) The Board finds that a 30 percent rating is warranted. Upon review of the evidence of record noted above, which includes the Veteran's consistent complaints of pain and functional loss, causing difficulty with sitting, standing, and walking, with consistent flare ups causing additional limitation of motion, the Board will resolve all doubt in the Veteran's favor and find that his symptoms more closely approximate "marked" knee disability under Diagnostic Code 5255. Thus, a 30 percent rating is warranted for his right femur disability, effective the date of the Veteran's claim for increase. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Hemphill 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.