BVA9501502 DOCKET NO. 93-14 523 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to an increased disability evaluation for status, post-fracture of the left femur with atrophy of the thigh muscles and limitation of motion of the left knee, currently evaluated as 30 percent disabling. 2. Entitlement to an increased disability rating for status, post-dislocation of the right hip, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Theresa M. Catino, Associate Counsel INTRODUCTION The veteran served on active duty from March 1942 to January 1946. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that the RO committed error in denying his claim of entitlement to a disability evaluation greater than 30 percent for status, post-fracture of the left femur with atrophy of the thigh muscles and limitation of motion of the left knee and in denying his claim of entitlement to a disability rating greater than 10 percent for status, post- dislocation of the right hip. He asserts that these service-connected disabilities are more severely disabling than currently evaluated. Specifically, he maintains that he experiences constant pain and swelling in his left knee, occasional pain in his left upper thigh, and sporadic locking of his left knee. In addition, he reports experiencing occasional pain in his right hip. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claim of entitlement to a disability evaluation greater than 30 percent for status, post-fracture of the left femur with atrophy of the thigh muscles and limitation of motion of the left knee. It is also the decision of the Board that the preponderance of the evidence is against the claim of entitlement to a disability rating greater than 10 percent for status, post-dislocation of the right hip. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. Flexion of the right hip is to 60 degrees, extension to 5 degrees, abduction to 20 degrees, adduction to 10 degrees, and rotation to 20 degrees. 3. Flexion of the left hip is to 110 degrees, abduction to 40 degrees, adduction to 20 degrees, and rotation to 30 degrees. 4. The veteran's left knee lacks 10 degrees of full extension. 5. Flexion of the left knee has recently been measured as to 90 degrees and to 60 degrees. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 30 percent for status post-fracture of the left femur with atrophy of the thigh muscles and limitation of motion of the left knee have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 3.321(b)(1), Part 4, § 4.71a, Codes 5003, 5251-5253, 5255, 5260, 5261 (1994). 2. The criteria for a disability rating greater than 10 percent for status post-dislocation of the right hip have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 3, § 3.321(b)(1), Part 4, § 4.71a, Codes 5251, 5252, 5253(1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's claims are well-grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, the Board finds that the veteran has presented claims which are plausible. The Board is also satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Murphy v. Derwinski, 1 Vet.App. 78 (1990); Littke v. Derwinski, 1 Vet.App. 90 (1990). I. Left Femur, Left Thigh, and Left Knee In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. §§ 4.1 and 4.2 (1994). In July 1946, the RO granted the veteran service connection for a simple fracture of the left femur with atrophy of the left thigh, a one-half inch shortening of the left leg, and limitation of abduction. The RO rated this disability as 20 percent disabling, effective from January 1946. In December 1946, the RO confirmed this disability rating but redefined the disability as a simple fracture of the left femur with atrophy of the left thigh, a one-half inch shortening of the left leg, and moderate limitation of motion. Subsequently, in August 1972, the RO redefined the disability as status post-fracture of the left femur with atrophy of the thigh muscles and limitation of motion of the left knee and granted the veteran a 30 percent disability evaluation, effective from March 1972. The veteran is currently evaluated for this disability under Diagnostic Code 5255. Disability evaluations are administered under a Schedule for Rating Disabilities which is found in 38 C.F.R. Part 4 (1994) and is designed to compensate a veteran for reductions in earning capacity. 38 U.S.C.A. § 1155 (West 1991). Separate diagnostic codes identify the various disabilities. Id. Although the evaluation of a service-connected disability requires a review of the veteran's medical history with regard to that disorder, the primary concern in a claim for an increased evaluation for a service-connected disability is the present level of disability. The United States Court of Veterans Appeal (Court) has recently held that, 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 rating specialist is directed to review the recorded history of a disability 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). With these regulations and this Court decision in mind, the Board will address the issue of the evaluation of the present level of disability resulting from the veteran's service-connected status post-fracture of the left femur with atrophy of the thigh muscles and limitation of motion of the left knee. This disability is evaluated as 30 percent disabling under Diagnostic Code 5255. Pursuant to this Code, a 30 percent disability rating is assigned when the evidence demonstrates malunion of the femur with marked knee or hip disability. Evidence of a fracture (with a false joint) of the surgical neck of the femur or a fracture (with a nonunion) of the shaft or anatomical neck of the femur without loose motion and with the preservation of weight bearing ability with the aid of a brace is necessary to warrant a 60 percent disability rating. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4, § 4.71a, Code 5255 (1994). On a private medical examination report dated in June 1992, it was noted that the left knee displayed marked edema and decreased range of motion. Tenderness and pain were elicited on weight bearing of the joint. On VA examination in July 1992, there were four well-healed five- centimeter scars over the shaft of the veteran's left femur and left hip which were nontender and not fixed. No gross atrophy of the left thigh was shown on the examination. The examiner noted that the veteran had severe osteoarthritic changes in his left knee, which was probably secondary to the in-service injury to his left femur. At a subsequent, private medical examination conducted in December 1992, Dr. Joseph Izzi, the examining physician, noted that the veteran had one-inch atrophy of his left thigh and the left leg was three-quarters of an inch shorter than the right He lacked ten degrees of full extension of the left knee and could flex the left knee to 60 degrees from the fully extended position. Pain was present with all motion of the left knee. Dr. Izzi stated that the veteran was "disabled as regards the use of the left lower extremity in any fashion during his employment." The totality of the veteran's service-connected residuals of the injury to his left femur specifically includes limitation of motion of his left knee. Therefore, this service-connected disability may also be evaluated under Diagnostic Code 5260, which rates a knee disability based on limitation of flexion of the disabled knee, and Diagnostic Code 5261, which evaluates a knee disability based on the limitation of extension of the affected knee. The highest evaluation under Code 5260 for limitation of flexion of the knee is 30 percent and requires evidence that flexion of the knee is limited to 15 degrees. The veteran is already receiving a 30 percent rating for his service-connected left femur disability. Moreover, Dr. Izzi reported in December 1992 that the veteran's left knee was limited in flexion to 60 degrees, which does not even warrant a compensable evaluation under Code 5260. Therefore, to obtain a rating greater than 30 percent based on limitation of motion of the left knee, Code 5261 should be considered. This Code does allow for the grant of a 40 percent disability evaluation when the evidence shows limitation of extension of the affected knee to 30 degrees. 38 C.F.R. Part 4, § 4.71a, Codes 5260 and 5261 (1994). Significantly, at the private examination conducted in December 1992, Dr. Izzi determined that the veteran's left knee lacked full extension by only 10 degrees. On the VA examination, flexion of the left hip was 110 degrees and abduction was to 40 degrees. Neither of these ranges would permit a compensable rating. Consequently, the veteran is not entitled to a disability rating greater than 30 percent based on the limitation of flexion or limitation of extension of his left knee or limitation of motion of the left hip. If ankylosis were present, a higher rating might be possible; however, there is no hip ankylosis and Code 5250 is not applicable. Code 5275 is also potentially applicable, but the shortening of the affected lower extremity would need to exceed three inches in order to warrant a rating higher than that currently assigned. Furthermore, the recent medical examinations showed evidence of arthritis of the veteran's left knee. X-rays taken of the veteran's left knee at the July 1992 VA examination showed severe osteoarthritic changes in this joint. The examiner specifically stated that these degenerative changes were most likely secondary to the in-service injury to the veteran's left femur. Therefore, the service-connected disability involving the veteran's left knee may be rated under Diagnostic Code 5003, which evaluates the extent of disability resulting from degenerative arthritis. According to this Code, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint involved. 38 C.F.R. Part 4, § 4.71a, Code 5003 (1994). As the Board has previously stated, the veteran is not entitled to a disability rating greater than 30 percent for residuals of the left knee disability on the basis of limitation of motion of this joint. Therefore, the veteran is not entitled to a disability evaluation in excess of 30 percent based on the extent of degenerative arthritis of his left knee. The Board also notes that the provisions of 38 C.F.R. Part 4, § 4.40 which state that the disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. According to this regulation, it is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. Part 4, § 4.40 (1994). The results of the recent medical examinations clearly support the veteran's complaints of constant pain in his left knee and occasional pain in his left upper thigh. Specifically, Dr. Izzi noted at the December 1992 private medical examination that the veteran had pain with all motion of his left knee. Although pain on motion of the veteran's left knee is supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking motion, the Board notes that the veteran is already evaluated as 30 percent disabled for his service-connected status post-fracture of the left femur with atrophy of the thigh muscles and limitation of motion of the left knee. The Board finds that the veteran's current 30 percent disability evaluation, which contemplates marked impairment, fairly reflects the pain and discomfort he experiences as a result of this service-connected disability. The preponderance of the evidence is against the claim of entitlement to a disability evaluation greater than 30 percent for status post-fracture of the left femur with atrophy of the thigh muscles and limitation of motion of the left knee on a schedular basis. However, in exceptional cases where the schedular evaluations are found to be inadequate, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities may be approved, provided the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (1994). The records in the present case do not show that the veteran has been hospitalized recently for his service-connected status post-fracture of the left femur with atrophy of the thigh muscles and limitation of motion of the left knee. Dr. Izzi expressed his opinion in December 1992 that the veteran was "disabled" regarding the use of his left lower extremity in any way during his employment. However, Dr. Izzi did not specifically state that the veteran was totally unable to work as a result of his service-connected left lower extremity disability. That generalized description essentially adds nothing to the record. It certainly does not justify a conclusion that the disability is atypical. Accordingly, the Board concludes that an evaluation in excess of 30 percent is not warranted on an extraschedular basis. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 3, § 3.321(b)(1), Part 4, § 4.71a, Codes 5003, 5255, 5260, 5261 (1994). II. Right Hip The evaluation of the severity of a particular disability requires a consideration of its history. 38 C.F.R. §§ 4.1 and 4.2 (1994). In July 1946, the RO granted the veteran service connection for dislocation of the right hip with slight limitation of flexion of the right thigh but rated this disability as noncompensably disabling, effective from January 1946. In December 1946, the RO confirmed this noncompensable rating but redefined the disability as asymptomatic dislocation of the right hip. Subsequently, in August 1972, the RO redefined the disability as status post-dislocation of the right hip and granted the veteran a 10 percent disability evaluation, effective from March 1972. The veteran is currently evaluated for this disability under Diagnostic Code 5253. As the Board has previously stated, disability evaluations are administered under a Schedule for Rating Disabilities which is found in 38 C.F.R. Part 4 (1994) and is designed to compensate a veteran for reductions in earning capacity. 38 U.S.C.A. § 1155 (West 1991). Separate diagnostic codes identify the various disabilities. Id. Although the evaluation of a service-connected disability requires a review of the veteran's medical history with regard to that disorder, the primary concern in a claim for an increased evaluation for a service-connected disability is the present level of disability. The Court has recently held that, 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 rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. Francisco at 58. The right hip disability is evaluated as 10 percent disabled under Diagnostic Code 5253. Pursuant to this Code, evidence of limitation of rotation of the affected thigh such that the claimant cannot toe-out more than 15 degrees or evidence of limitation of adduction of the affected thigh such that the claimant cannot cross his or her legs is required for a 10 percent disability evaluation. Evidence of limitation of abduction of the affected thigh such that motion is lost beyond ten degrees is required to warrant a 20 percent disability rating. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4, § 4.71a, Code 5253 (1994). The examiner conducting the July 1992 VA examination noted that there was no deformity, edema, inflammation, or local tenderness involving the veteran's right hip and that the range of motion of his right hip was markedly reduced. In particular, the examiner noted that the abduction of the veteran's right thigh was limited to 20 degrees. Although this range of motion test clearly demonstrates limitation of abduction of the veteran's right thigh, the extent of limitation is not of such severity as to warrant a compensable disability rating under Code 5253. The veteran has been evaluated for his right hip disability under Code 5253 based on the limitation of abduction of his right thigh. A review of the diagnostic codes rating disabilities of the hip and thigh indicates that Code 5252 also rates a hip and thigh disability on the basis of limitation of flexion of the thigh. Therefore, the Board finds that Code 5252 is also an appropriate provision to utilize to evaluate the veteran's service-connected right hip disability. A 10 percent disability evaluation is warranted under Code 5252 when the evidence demonstrates limitation of flexion of the thigh to 45 degrees. A 20 percent disability evaluation is warranted under Code 5252 when the evidence demonstrates limitation of flexion of the thigh to 30 degrees. 38 C.F.R. Part 4, § 4.71a, Code 5252 (1994). Significantly, the July 1992 VA examination showed that the veteran's right hip and thigh was limited in flexion to 60 degrees. Therefore, although the veteran's right hip and thigh is limited in flexion, the limitation is not of such severity as to warrant a compensable disability rating under that Code. Limitation of extension of the hip or thigh to 5 degrees, which was reported on the VA examination, does warrant a 10 percent rating under Code 5251. This is the only rating assignable under this particular Code. As the Board has previously discussed, the provisions of 38 C.F.R. Part 4, § 4.40 state that the disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. According to this regulation, it is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. Part 4, § 4.40 (1994). The results of the recent medical examinations clearly support the veteran's complaints of occasional pain in his right hip. Dr. Izzi specifically noted at the December 1992 private medical examination that the veteran had pain in his right hip with all motion. Although pain on motion of the veteran's right hip is supported by adequate pathology and evidenced by the visible behavior of the veteran when undertaking motion, the Board notes that the veteran is already evaluated as 10 percent disabled for his service-connected right hip disability. The Board finds that the veteran's current 10 percent disability evaluation fairly correlates with the discomfort he experiences as a result of this service-connected disability. In exceptional cases where the schedular evaluations are found to be inadequate, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities may be approved, provided the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (1994). The records in the present case do not show that the veteran has been hospitalized recently for his service-connected right hip disability. Furthermore, the records do not support the finding of marked interference with employment due exclusively to the veteran's service-connected right hip disability. Dr. Izzi expressed his opinion in December 1992 that the veteran is disabled regarding the use of his left lower extremity in any way during his employment. However, Dr. Izzi did not express any opinion regarding the extent of any employment impairment resulting from the veteran's service-connected right hip disability. Accordingly, the Board concludes that an evaluation in excess of 10 percent for the veteran's right hip disability is not warranted on an extraschedular basis. ORDER Entitlement to increased disability evaluations for post-fracture status of the left femur with atrophy of the thigh muscles and limitation of motion of the left knee and for post-dislocation status of the right hip is denied. JOHN E. ORMOND Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.