BVA9506009 DOCKET NO. 93-06 398 ) DATE ) ) On appeal from a decision by the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES Entitlement to an increased rating for osteomyelitis of the left femur, rated as 20 percent disabling. Entitlement to a total rating due to individual unemployability. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD Keith W. Allen, Associate Counsel INTRODUCTION The veteran served on active duty from January 1953 to July 1954. This matter comes to the Board of Veterans' Appeals (Board) from April 1991 and May 1992 decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In those decisions, the RO denied the veteran's claims for an increased rating for osteomyelitis of the left femur, rated 20 percent disabling, and a total rating due to individual unemployability. In a February 1993 decision, the RO increased the rating assigned for the veteran's service-connected post-traumatic stress syndrome from 10 to 30 percent; however, in a March 1993 statement, his representative argued that an even higher (i.e., no less than 70 percent) rating was warranted. The Board notes that a statement of the case has not been issued concerning this matter, nor has a substantive appeal been submitted. Therefore, the matter has not been perfected for appellate review by the Board. Ordinarily, development would have to be completed prior to consideration of the veteran's claim for a total rating based on unemployability since in determining entitlement to this benefit, all of his service-connected disabilities, and the ratings assigned therefor, would have to be considered in combination. However, in light of the Board's decision below, this "urgency" is greatly lessened, and the merits of the claim for a total rating may be adjudicated without prejudice to the veteran. The matter of entitlement to an increased rating for post-traumatic stress disorder and disability benefits for hypertension are referred to the RO for further action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the 20 percent rating assigned for osteomyelitis of his left femur does not adequately reflect the severity of his disorder, and he claims that the combined effect of his service-connected disabilities prevents him from working. 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 for an increased rating for osteomyelitis of the left femur; however, the evidence supports the assignment of a total rating due to individual unemployability. FINDINGS OF FACT 1. The veteran is service-connected for multiple residuals of a gunshot wound he sustained to his left lower extremity during service, including degenerative arthritis of the lumbar spine (rated 40 percent); a moderately severe wound to muscle group XIV (rated 30 percent disabling); complete loss of function of the peroneal nerve with complete foot drop (rated 30 percent); impairment of the left femur with degenerative arthritis of the knee and 2-inch shortening of the leg (rated 30 percent); osteomyelitis of the left femur (rated 20 percent); and post- traumatic arthritis of the left hip (rated 20 percent). 2. He is also rated 30 percent disabled for post-traumatic stress syndrome, and the combined rating, considering all of his service-connected disabilities, is 90 percent; he is entitled to automotive and adaptive equipment and special monthly compensation on account of loss of use of one foot. 3. The veteran has occasional sinus drainage from his left femur, without evidence of definite involucrum or sequestrum. 4. The aggregate effect of the veteran's service-connected disabilities precludes him from securing and maintaining gainful employment. CONCLUSIONS OF LAW 1. The criteria of an increased rating for osteomyelitis of the left femur have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.68 and Part 4, Code 5000 (1994). 2. The criteria for a total rating due to individual unemployability have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.16, 4.18, 4.19 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background During service in July 1953, the veteran sustained a gunshot wound to the left thigh, resulting in a compound, comminuted fracture of the lower third of the left femur. He was eventually medically discharged from service, in July 1954, because of chronic residuals related to his injury. The veteran's left leg was examined by VA on a number of occasions during the years immediately following his discharge from service. When hospitalized in August 1954, he complained of draining sinuses of the lower third of the left thigh and a stiff left knee. On physical examination, he was found to have generalized atrophy from disuse of the left lower extremity and shortening of 5/8 of an inch. His left knee was partially ankylosed with limited flexion. The final diagnosis was residuals of fracture of the left femur secondary to gunshot wound, manifested by: (a) multiple scarring of the left thigh, (b) osteomyelitis of the left femur, (c) partial ankylosis of the left knee, and (d) shortening of the left lower extremity. During a December 1954 VA examination, the veteran complained of draining of the left leg and a "catch" in his left hip. He walked with a limp, favoring his left lower extremity, and there was a draining sinus on the lateral aspect of the left thigh at the junction of the lower third with the upper two thirds. His scars were well-healed, not attached to the underlying tissue, and nontender. He had limited motion in the joint of his left knee and some in his left hip. X-rays showed a deformity of the shaft of the left femur at the junction of the middle and distal thirds with slight medial angulation of the distal fragment and slight shortening of the length of the femur. No opaque foreign bodies were seen. An intramedullary nail extended from the greater trochanter to the supracondylar portion of the shaft of the femur. The diagnoses included: (1) healed fracture of the distal shaft of the left femur with medullary nail fixation, (2) osteoporosis of disuse, (3) draining sinus of the left femur, (4) multiple scars of the left lower extremity, and (5) severe limitation of motion of the left knee. In February 1955, the RO granted service connection for multiple residuals related to the gunshot wound that the veteran sustained to his left lower extremity during service. His moderately severe wound to muscle ground XIV was rated as 30 percent disabling, as was the impairment that was evident in his left femur. He was also rated 20 percent disabled for chronic osteomyelitis in his left femur. From April to May 1955 and from October to November 1956, the veteran was hospitalized at a VA medical center for complaints of localized swelling, pain, and drainage of the lower third of his left thigh. This was evident on objective examination of his left lower extremity, so in October 1956, he underwent excision of the sinus tract and sequestrectomy at the old fracture site. During the surgery, it was noted that he had a large musculoskeletal defect on the later aspect of the femur, exposing the entire intramedullary canal with the exposed nail in full view. Osteomyelitis of the lower third of the left femur was the discharge diagnosis. Because of recurring drainage from the large sinus on the lateral aspect of the lower third of the veteran's left thigh, he was again hospitalized at a VA medical center from September to November 1957. There was moderate atrophy from disuse of the entire left lower extremity and partial ankylosis of the left knee. A large draining sinus was noted on the lateral aspect of the affected thigh. As a result, a sequestrectomy with complete excision of the large draining sinus and infected scar tissue was performed, and the intramedullary nail was removed. The diagnosis was osteomyelitis of the lower third of the left femur. In December 1957, the RO assigned a temporary total rating covering the period of convalescence that the veteran had following his hospitalization and surgery for chronic osteomyelitis in his left femur. The 20 percent rating was reinstated thereafter, but was reduced to a noncompensable level, effective February 1958. The other service-connected left leg disorders continued to be rated as 30 percent disabling. When examined by a medical board in January 1959, the veteran's history of left lower extremity ailments was documented. It was noted that he walked with a limp, and there was mild genu varum of the left knee. His left thigh measured smaller than his right thigh, but his left calf was larger than his right calf. There was a one-inch shortening of the left femur. The diagnoses were: (1) osteomyelitis of the left femur, (2) contracture of the left knee joint with limited range of motion, and (3) malunion of the left femur with lateral angulation. A private medical statement, dated in October 1981, shows that the veteran had complaints of left leg symptoms, including pain, limitation of motion, and foot drop. A reevaluation was requested. An increase in left leg symptomatology was noted during a May 1982 VA orthopedic examination. There was a large soft tissue defect on the medial aspect of the left middle and distal thigh. Several well-healed areas of the suture line were detected, but there was no evidence of erythema, induration, or tenderness. Other old puncture wounds were also noted. At the level of the femoral fracture was muscle loss of the vastus lateralis in its mid portion. No drainage or erythema was observed. There was, however, one small area of crustiness at the site of the lateral wound, which reportedly chronically drained. The examiner observed a well-healed lateral parapatellar scar of the left knee, said to be a residual of an automobile accident. Knee ligaments were stable. There was minimal patellofemoral tenderness as well as some evidence of chronic swelling of the distal left leg. The left lower extremity was 1 inch shorter than the right. X-rays of the lumbar spine showed no osseous abnormality, but X-rays of the left knee revealed degenerative changes involving all compartments. The diagnoses were: (1) status post compound fracture of the left femur with minimal chronic osteomyelitis, (2) shortening of the left leg by 1 inch, said to possibly account for low back pain, (3) loss of range of motion of the left knee with patellofemoral tenderness and degenerative arthritis of both compartments, and (4) complete loss of function of the peroneal nerve and complete foot drop. As a result of the findings from the recent VA examination, the RO, in a June 1982 decision, increased the rating assigned for osteomyelitis of the left femur from noncompensable to 20 percent. The 20 percent rating has remained in effect since that time. The rating for the other left leg residuals did not change. However, a separate 30 percent rating was assigned for the veteran's left foot drop, secondary to his other service- connected disabilities involving his left lower extremity. He was also deemed entitled to special monthly compensation on account of loss of use of his left foot. The veteran was treated in a VA outpatient clinic in March and August 1985 for osteomyelitis in his left femur. When seen in March, he complained of slight drainage in his left leg (above the knee) of several years' duration, and he said his left foot was swollen and that he had been unable to bend his left knee. On physical examination of the left leg, there was discoloration, pitting edema, and marked tenderness in scars on the left knee and thigh. The scars were healed, and there was no evidence of drainage. The diagnoses were osteomyelitis and peripheral vascular disease. X-rays of the left femur and knee, taken in August, showed an old healed fracture of the distal third and lateral meniscus deformity with genu valgus on the left. The veteran said he had experienced recurrent drainage in his left femur, although he said that he had had no evidence of such in the past two months. Left foot/leg paralysis was noted. On physical examination of the left leg, there was no evidence of infection or drainage, but he wore a brace on his lower leg. At a February 1989 VA examination, the veteran reported that he worked as a farmer and that he was currently taking several medications. The history of left lower extremity problems was noted, and he said he was experiencing numbness in this leg. On physical examination, he was found to have hyperpigmentation and scaling of the skin on the left leg, and his left big toe was discolored (blue). Varicose veins were present on the left leg, as were several scars which were well- healed. There was weakness and numbness in his left foot and leg. X-rays of the left femur showed an old healed fracture deformity of the distal third of the femoral shaft, and those of the left lower leg showed a normal tibia and fibula. The pertinent diagnoses were old gunshot wound of the left thigh, post phlebitic symptoms of the left leg, and low back pain. When given a VA orthopedic examination a few months later, in May 1989, the veteran's long-standing history of left lower extremity ailments was documented. His complaints were essentially the same as when he was examined in February. The diagnoses were: (1) residuals of a severe wound to muscle groups XIII, XIV, and XV of the left leg; (2) peroneal palsy of the left leg; (3) post- traumatic arthritis of the left hip and knee; (4) residuals of a left femur fracture, with 2-inch shortening of the left lower extremity; (5) chronic osteomyelitis of the left femur, inactive at present time; and (6) mild degenerative arthritis of the lumbar spine. The examiner believed that the veteran's history of problems with his left lower extremity had led to development of arthritis in his low back. The veteran was deemed entitled to automobile and adaptive equipment in a September 1989 rating decision of the RO. By this time, his combined rating had increased to 80 percent. The findings noted at an October 1990 VA orthopedic examination are essentially identical to those that were noted when the veteran was examined in 1989. His extensive history of problems with his left lower extremity was documented, including peripheral vascular disease and degenerative arthritis in his left hip and knee. The diagnoses were essentially identical to those made when examined by VA in 1989, except that it was also noted that he had osteoporosis in his left knee. Although chronic osteomyelitis of the left femur was diagnosed, it was noted that there was no evidence of drainage at that time. Glen A. Gabrielson, M.D., a private physician who treated the veteran, reported in a November 1990 statement that the veteran had complained of continuous drainage in his left leg. The doctor said that the veteran claimed that the combination of problems with his left leg, hip, and back prevented him from working as a farmer (he said his son-in-law had been doing most of the work on the farm over the past 2-3 years). The veteran said he used a cane and leg brace for walking, and he claimed that his wife had to help him when trying to move about or when dressing. On physical examination, he was unable to stand on his toes, squat, or walk on his heels. Scars on his left leg were noted, and there was marked atrophy of the distal thigh of his left leg. He had decreased strength in his left thigh and limitation of motion in his knee and hip. There was some draining crusted lesion of the left lateral aspect of his left thigh compatible with a drainage site from the distal femoral osteomyelitis. He had complete loss of sensation in his left lower leg. The diagnosis reflected the presence of chronic osteomyelitis as well as the peripheral vascular problems. In April 1991, the RO assigned separate ratings for arthritis in the veteran's left hip (20 percent) and lumbar spine (10 percent). In his July 1991 application for increased compensation based on unemployability, the veteran reported that he had last worked in September 1990 and that he was self- employed as a farmer (and that he had been so all of his life). He indicated that his highest level of education attained was the seventh grade, and he said he had not had any other job training, either before or after he became too disabled to work. During 1991 and 1992, the veteran was examined several times in a VA outpatient clinic for treatment of chronic osteomyelitis. Some of the records show complaints of slight drainage in his left thigh, although this was not always evident when being examined. A chronic skin infection involving his left leg, secondary to an old gunshot wound, was noted during an examination in September 1991, when the examiner concluded that the combination of chronic inflammation of the leg, chronic pain, and chronic anxiety made the veteran unemployable at the level he was prepared to work. X-rays of the left femur taken in March 1992 showed an old healed fracture, and osteoporosis was present, but there was no radiographic evidence of osteomyelitis. The veteran was examined by VA in March 1992. His left hip movements were severely restricted and painful, and there was hyperpigmentation and discoloration involving his left leg. No drainage was noted in either his left thigh or leg. It was reported that he could not walk without the assistance of his left leg brace and crutches. X-rays of the left femur showed an old fracture. Osteoporosis was present, but there was no evidence of osteomyelitis. The diagnosis noted that he had multiple residuals attributable to his old gunshot wound, including osteoporosis in his left femur and an old fracture deformity in this area. At an August 1992 VA general medical examination, the veteran's left leg, hip, and back problems were again noted. Examination of the left lower extremity revealed a severe deformity secondary to the old gunshot wound with several scars and atrophy of the thigh muscles. The examiner said that the veteran could not walk without using his leg brace and crutches and that he even had a great deal of difficulty ambulating with them. He also said the veteran would soon need a wheelchair. The pertinent diagnoses were identical to those made on the March 1992 VA examination. II. Legal Analyses The veteran's claims are well-grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented claims which are not inherently implausible. All relevant facts have been properly developed and, therefore, VA's duty to assist him in developing evidence pertinent to his claims has been satisfied. Id. A. Increased Rating for Osteomyelitis of the Left Femur Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment in earning capacity a disability in question would cause. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. A 20 percent evaluation is warranted for osteomyelitis with a discharging sinus or other evidence of active infection within the past 5 years. This 20 percent evaluation is not assignable following the initial infection of active osteomyelitis if there was no subsequent reactivation. Established, recurrent osteomyelitis is required. A 30 percent evaluation requires a definite involucrum or sequestrum, with or without a discharging sinus. 38 C.F.R. Part 4, Code 5000. The veteran is service-connected for multiple residuals of the gunshot wound he sustained during service. Indeed, he is rated 40 percent disabled for degenerative arthritis of the lumbar spine; 30 percent disabled for a moderately severe wound to muscle group XIV; 30 percent disabled for complete loss of function of the peroneal nerve with complete foot drop; 30 percent disabled for impairment of the left femur with degenerative arthritis of the knee and 2-inch shortening of the leg; and 20 percent disabled for chronic osteomyelitis of the left femur and post-traumatic arthritis of the left hip. It can not be doubted that the veteran has substantial disability of his left lower extremity. However, the initial aspect of his appeal only concerns those symptoms which are attributable to the osteomyelitis in his left femur, not those related to disability of his left hip, lower leg and foot. Allegations of increased impairment due to this disability have been considered. Records, however, show that there is no current evidence of active infection in his left femur, although the Board acknowledges that he has in years past occasionally experienced some drainage in this area. Still, a 30 percent rating requires evidence of involucrum or sequestrum, even where, as here, there is evidence of drainage. The veteran twice underwent surgery (involving sequestrums) during the mid-1950's, but this has not been a problem since. Most notably, several recent examinations have even been unremarkable for pertinent pathology. Therefore, an increased rating is not in order. B. Total Rating Due to Individual Unemployability Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additionally disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16. Marginal employment shall not be considered substantially gainful employment, and the effects of advancing age and non-service- connected disabilities shall be excluded when determining entitlement to a total rating on the basis of unemployability. 38 C.F.R. §§ 4.16, 4.18, 4.19. Most of the veteran's service-connected disabilities are attributable to the gunshot wound he sustained during service. He has substantial impairment in his left lower extremity, which has been referred to above. Additionally, he is service- connected for degenerative arthritis of the lumbar spine (rated 40 percent), post-traumatic stress syndrome (30 percent), and post-traumatic arthritis in his left hip (20 percent). His combined rating, considering all of his service-connected disabilities, is 90 percent. It is clear that the veteran meets the threshold requirement that he have at least one disability rated as 40 percent disabling, since this is the rating that has been assigned for his low back disorder. The only remaining question is whether his service- connected disabilities preclude him from securing or maintaining a substantially gainful occupation. He has indicated that the maximum education that he attained was the seventh grade (middle/junior high school) and that he has never had any training other than that he learned as a farmer, a job he had ever since he got out of service some 40 years ago. However, he says he was forced to quit working in 1990, under doctor's orders, because the severity of his service-connected disabilities, primarily those related to his gunshot wound, was increasing. This made it difficult for him to perform any physical activity, which, quite naturally, impaired his ability to work as a farmer. The fact that he has such severe disabilities and limited training cannot be overlooked. It is also noteworthy that the residuals involving his left lower extremity (when viewed collectively) have progressively increased in the years since his discharge from service to the point that he now needs a leg brace and crutches even to walk. A doctor has even concluded that the veteran will soon need a wheelchair to ambulate. The facts and circumstances here reflect individual unemployability, in my judgment. The aggregate effect of his service-connected disabilities precludes him from securing and maintaining gainful employment and, therefore, a total rating is warranted. ORDER An increased rating for osteomyelitis of the left femur is denied. A total rating due to individual unemployability is granted. M. CHEEK 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.