Citation Nr: 0004541 Decision Date: 02/22/00 Archive Date: 02/28/00 DOCKET NO. 98-10 292 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to an increased evaluation for service-connected residuals of a right femur fracture, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Johnson, Associate Counsel INTRODUCTION The veteran served on active duty from June 1990 to January 1993. This matter came to the Board of Veterans' Appeals (Board) from an April 1998 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which denied the claim for an increased rating for service-connected residuals of a stress fracture of the neck of the right femur. In May 1998, the veteran submitted his notice of disagreement and a statement of the case was issued. In June 1998, the veteran filed his substantive appeal, which included a request for a personal hearing before a member of the Board. The requested hearing was scheduled for June 1999, but the veteran failed to appear. FINDINGS OF FACT 1. All available relevant evidence necessary for disposition of the veteran's appeal has been obtained by the RO. 2. The veteran's service-connected residuals of a right femur fracture are manifested by complaints of pain and weakness, productive of no more than malunion of the femur with slight hip disability. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for residuals of right femur fracture have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.103, 4.7, 4.71a, Diagnostic Codes 5255 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background The service medical records show that in October 1990, the veteran suffered from a stress fracture of the neck of the femur. The right hip was pinned. The bone screws were removed in 1992. A VA examination was conducted in March 1993. The veteran complained of stiffness and soreness in the right hip. He did not have any left hip complaints. He also noted a feeling of numbness around the surgical scar in the right hip. The examiner observed a 4-inch surgical scar over the lateral aspect of the proximal thigh, which appeared to be just below the trochanteric process. The scar was 1/4 inch wide, reddish in color, freely movable and nontender. There did not appear to be any decreased sensation for approximately 2 to 3 inches around the incision site. Right hip range of motion was 120 degrees flexion, 30 degrees extension, 25 degrees adduction, and 45 degrees abduction. External rotation was approximately 55 degrees, and internal rotation 40 degrees. The knees and ankles were stable. Motor and sensory were normal, except around the surgical site. Reflexes were positive. He was able to squat and arise, and stand on heels and toes without difficulty. The examiner reported that the veteran had sustained some sort of stress fracture of the right hip, partial separation of the right hip, with surgical procedure, with probable some residual stiffness and soreness. X-rays of both hips did not reveal articular abnormality. They also showed an old fracture of the "left" (sic) femoral neck which has been maintained in internal fixation with metallic pins, which have been removed but the tracts remain. No other abnormalities were noted. X-rays of both femurs, including the knee joints, did not show evidence of bone or joint disease. In the proximal femoral shaft, there were residual tracts from screws which maintained the internal fixation device. In April 1993, the RO granted the claim of service connection for residuals of a right femur fracture. The disability was rated as 10 percent disabling. VA treatment records show that the veteran was seen for complaints of right hip pain in August and September 1997. X-rays of the hips did not reveal any fractures. X-rays of the femurs did not reveal an acute abnormality, and there was a band-like area of increased sclerotic or calcific density projecting over the medial portion of the proximal tibia. The veteran was afforded a VA examination in March 1998. The examiner noted that the claims folder had been reviewed and that photographs were taken and attached to the report. The examiner observed that the veteran walked into the room in a normal fashion. The veteran reported that he does roofing work, and that over the past six months, he developed a limp that comes and goes. He stated that the right leg felt shorter. He noted the history of having the three screws put in and removed. After that he was able to run again, but marching bothered him. He could step and walk, but there was pain. If he awakened on his right side, he experienced a throbbing pain; otherwise he was fine. He had had intermittent and predictable pain, but for the past six months to a year, he has had low level baseline pain and weakness like headache pain. While squatting for roofing, he found that his legs started feeling weak. He began avoiding activities. He used to carry weights, and he would "pay later" for several days. The roofing activity was now causing the leg to hurt on a daily basis. He feels that he cannot maintain this pace, and that running would exacerbate his pain even though he does not attempt to do it. With a flight of stairs, he notes that all of his weight is on it for each step to the right foot, and that there is pain. He feels that the leg is weak, like numbness, but difficult to describe. He can cross the left leg with the right leg, extended and flexed, but is more painful and stiff after he relaxes from that position. The leg does not buckle under him and it is not unstable. It just feels weak, and he has to avoid roofing. It hurts too much for him to do it now. He was lifting 80 to 90 pounds at a time. He cannot have rubber legs while on top of a roof, which he describes his legs as after roofing for a certain amount of time. The examiner observed that the distal extremities were normal in appearance. The mid thigh measured 53 centimeters bilaterally. He has pain again in the anterior aspect of the proximal right femur. There is a healed incision, vertical in orientation and measuring 8 centimeters x 0.5 centimeters. It is well healed, without subcutaneous adherence. Deep tendon reflexes were 2+ and equal bilaterally. There was full range of motion of the hips, knees and ankles. The distance from the anterior lumbosacral spine to the medial malleolus is equal bilaterally. He was able to walk on his toes and heels, without problem. The extremities were warm, and he had a good distal hair pattern. He was able to squat in a normal pattern. Radiographs showed that the right femur with no abnormality, and that the hardware had been removed. X-rays of the pelvis showed the tracked defects of the right femoral head, neck and proximal femoral diaphysis. There was no evidence of an acute osseous or joint injury or abnormality. The examiner reported an impression of epiphyseal fracture of the right femoral neck. The examiner opined that it was likely that the weakness the veteran perceives is due to the service-connected injury to the right femoral neck. "Loss of motion has not been realized at this point in time." II. Legal Analysis The Board finds that the veteran's claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). The United States Court of Appeals for Veterans Claims (Court) has held that, when a veteran claims that a service-connected disability has increased in severity, the claim is well grounded. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). The Board is also satisfied that all relevant facts have been properly developed and that VA has fulfilled its duty to assist the veteran as mandated by 38 U.S.C.A. § 5107(a) and 38 C.F.R. § 3.103(a). Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a review of the recorded history of a disability should be conducted in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). This decision will include a review of the entire record, but the focus will be on the most recent medical findings regarding the service-connected disability at issue. In the case of DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court held that in evaluating a service-connected disability, the Board erred in not adequately considering functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. The Court held that a diagnostic code based on limitation of motion does not subsume 38 C.F.R. §§ 4.40 and 4.45, and that the rule against pyramiding set forth in 38 C.F.R. § 4.14 does not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use, including flare-ups. The Court remanded the case to the Board to obtain a medical evaluation that addressed whether pain significantly limits functional ability during flare-ups or when the joint is used repeatedly over a period of time. Service connection is currently in effect for residuals of a stress fracture of the neck of the right femur. This disability is not listed in the Rating Schedule, and is rated by analogy to a listed disability with similar symptoms and anatomical localization. 38 C.F.R. § 4.20 (1999). Specifically, it is rated 10 percent disabling by analogy to the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5255 (1999). Diagnostic Code 5255 contemplates impairment of the femur and a 10 percent rating is assigned for malunion of the femur with slight knee or hip disability. A 20 percent rating is assigned for malunion of the femur with moderate knee or hip disability. A 30 percent rating is assigned for malunion of the femur with marked knee or hip disability. In this case, the Board finds that the 10 percent rating currently in effect adequately represents the disability picture demonstrated by the evidence. The veteran's predominant complaints include right hip pain and a feeling of weakness and numbness. Here, the examination findings do not show that there is actual weakness of the lower extremity, a full range of hip motion was demonstrated, and abnormalities were not seen on examination or x-ray. However, the evidence does indicate that the veteran suffers from right hip pain. This is evident from the VA treatment records and the VA examination reports. Therefore, it is reasonable to conclude that any additional disability or functional loss is due to pain. In this case, the recorded findings, particularly those regarding range of motion, and standard maneuvers such as stooping and leg-crossing, do not show that the pain produces more than slight disability of the hip. Since this is the case, there is no question as to which rating should apply. 38 C.F.R. § 4.7 (1999). The Board has considered all other potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). After a careful review of the available Diagnostic Codes and the medical evidence of record, the Board finds that Diagnostic Codes other than 5255, do not provide a basis to assign an evaluation higher than the 10 percent rating currently in effect. As noted above, the veteran's complaints primarily involve right hip pain. However, the degree to which the right hip is affected is not comparable to hip ankylosis as required for consideration under Diagnostic Code 5250. Also, given the ranges of motion reported on examination, it is reasonable to conclude that limitation of thigh flexion is not limited to 30, 20 or 10 degrees as required for ratings greater than 10 percent under Diagnostic Code 5252, or that there is thigh impairment manifested by limited abduction of motion lost beyond 10 degrees as required for a 20 percent rating under Diagnostic Code 5253. Furthermore, it has not been demonstrated that hip flail joint is present as contemplated by Diagnostic Code 5254. Here, the preponderance of the evidence is against the veteran's claim, therefore the application of the benefit of the doubt doctrine contemplated by 38 U.S.C.A. § 5107 (West 1991) is inappropriate in this case. ORDER Entitlement to a rating greater than 10 percent for residuals of a right femur fracture has not been established, and the appeal is denied. J. E. Day Member, Board of Veterans' Appeals