BVA9502025 DOCKET NO. 93-09 563 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to an increased disability evaluation for status post fracture of the right femur with knee impairment, currently rated 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 military duty from August 1990 to September 1991. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that the regional office (RO) committed error in denying his claim of entitlement to a disability evaluation greater than 10 percent for status post fracture of the right femur with slight knee impairment. He claims that this service-connected disability is more severely disabling than currently evaluated. Specifically, he maintains that he experiences morning stiffness and swelling around his right femur and aching in his right femur during cold weather. He also asserts that his right knee "gives out" when his right femur hurts, causing his right leg to become numb. He maintains that he occasionally wears a knee brace. In addition, he claims that his right hip "pops out" and is numb most of the time. He also asserts that the scar on his right lower extremity is red and sensitive to the touch and that his right knee and right upper leg periodically feel swollen. Consequently, he contends that he is entitled to an evaluation greater than 10 percent for this disability. 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 10 percent for status post fracture of the right femur with knee impairment. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's claim has been obtained insofar as possible. 2. The veteran's right lower extremity disability, which is manifested by complaints of pain, and by medical evidence of no swelling or palpable tenderness, no instability, no neurological deficit, range of motion of the right knee and right hip which are within normal limits, slight discomfort in the right femur on foot hop, possible slight loosening around the fixation device, and very slight narrowing of the lateral joint compartment of the right knee, is productive of only minimal functional impairment and not more than slight knee or hip impairment. CONCLUSION OF LAW The criteria for a disability evaluation greater than 10 percent for status post fracture of the right femur with knee impairment are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 3, § 3.321 and Part 4, § 4.71a, Codes 5251, 5252, 5255, 5257-5261 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim is 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 a claim which is 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). In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. §§ 4.1 and 4.2 (1993). In an April 1992 rating decision, the RO granted service connection for status post fracture of the right femur with slight knee impairment. The RO rated the disability as 10 percent disabling, effective from April 1991. Disability evaluations are administered under a Schedule for Rating Disabilities which is found in 38 C.F.R. Part 4 (1993) and is designed to compensate a veteran for the average impairment 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 Appeals (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 right lower extremity disability. This disability is presently evaluated as 10 percent disabling under Diagnostic Code 5255. Pursuant to this Code, a 10 percent rating contemplates impairment of the femur to include a malunion of the femur with slight knee or hip disability. In order for the veteran to receive the next higher rating, 20 percent, for his right lower extremity disability under this Code, the evidence must demonstrate impairment of the femur to include a malunion of the femur with moderate knee or hip disability. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4, § 4.71a, Code 5255 (1993). The veteran's right lower extremity disability may also be evaluated based on the severity of impairment of his right hip. Specifically, Diagnostic Code 5251 and 5252 rate a hip, or thigh, disability based on the extent of limitation of motion of the hip or thigh. According to Code 5251, limitation of extension of the hip or thigh to five degrees warrants the assignment of a 10 percent rating. 38 C.F.R. Part 4, § 4.71a, Code 5251 (1993). According to Code 5252, limitation of flexion of the hip or thigh to 45 degrees warrants a 10 percent rating, to 30 degrees warrants a 20 percent evaluation, to 20 degrees will result in the assignment of a 30 percent rating, and to 10 degrees warrants a 40 percent evaluation. 38 C.F.R. Part 4, § 4.71a, Code 5252 (1993). Furthermore, the veteran's right lower extremity disability may also be rated based on the severity of impairment of his right knee. Diagnostic Code 5257 evaluates a knee disability based on the extent of impairment, including recurrent subluxation or lateral instability, resulting from the disability. A 10 percent evaluation requires evidence of slight knee impairment, a 20 percent rating requires evidence of moderate knee impairment, and a 30 percent evaluation requires evidence of severe knee impairment. 38 C.F.R. Part 4, § 4.71a, Code 5257 (1993). In addition, the severity of the veteran's knee disability may be based upon the extent of limitation of motion of his knee. According to Diagnostic Code 5260, limitation of flexion of the knee to 60 degrees warrants a noncompensable evaluation, to 45 degrees warrants a 10 percent rating, to 30 degrees warrants a 20 percent evaluation, and to 15 degrees warrants a 30 percent rating. 38 C.F.R. Part 4, § 4.71a, Code 5260 (1993). Furthermore, Diagnostic Code 5261 will result in a noncompensable rating for evidence of limitation of extension of the knee to five degrees, a 10 percent evaluation for limitation of extension of the knee to 10 degrees, a 20 percent rating for limitation of extension of the knee to 15 degrees, a 30 percent evaluation for limitation of extension of the knee to 20 degrees, a 40 percent rating for limitation of extension of the knee to 30 degrees, and a 50 percent evaluation for limitation of extension of the knee to 45 degrees. 38 C.F.R. Part 4, § 4.71a, Code 5261 (1993). Furthermore, evidence of dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint will result in the assignment of a 20 percent disability rating. 38 C.F.R. Part 4, § 4.71a, Code 5258 (1993). Also symptomatic removal of semilunar cartilage warrants the assignment of a 10 percent disability evaluation. 38 C.F.R. Part 4, § 4.71a, Code 5259 (1993). The only post-service medical records included in the claims folder are the January 1992 VA examination report and outpatient treatment records which involve treatment that the veteran received for unrelated conditions. The veteran explained at the post-service VA examination that he had not received any further follow-up treatment for his right lower extremity disability since his physical therapy was discontinued during service in April 1991. Therefore, the only medical records upon which the Board can evaluate the extent of the veteran's right lower extremity disability are the service medical records and the report of the January 1992 VA examination. According to the service medical records, the veteran was treated for right knee pain twice in December 1990. At the end of that month, he was treated for a fractured right femur. A January 1991 Medical Board Report indicated that the veteran had swelling and tenderness in his right distal thigh, that the deformity in his right leg had been reduced in the emergency room, and that the distal neurovascular examination was completely intact. The diagnosis was a right femur fracture which was surgically treated. At the time of this examination, the veteran was found to be unable to perform full duty. He was assigned to six months of limited duty, periodic orthopedic follow-up treatment sessions, and daily physical therapy. Subsequent evaluation of the veteran's right lower extremity in February 1991 showed that he continued to complain of pain in his right knee. Range of motion of this joint was found to be five degrees to 138 degrees, and strength was 3+/5. Surgery with closed reduction and internal fixation in January 1991 was noted. Also in February 1991 the veteran received additional evaluation of his right lower extremity. At that time, the veteran expressed concern that the incision at the fracture of his right femur was breaking open and complained of pain and some dry lesions on his right lateral knee area. According to this examination, the drawer and Lachman's signs were negative, no effusion was found, and the X-rays of the veteran's right femur showed a healed fracture. The military physician noted that the veteran's right quadriceps were weak and caused his feelings of instability. The physician did not believe that the weak quadriceps and feelings of instability represented ligament injury. The physician found erythema, cellulitis, inflammation, and fluctuation and concluded that the proximal and distal wounds were healed. Physical examination of the veteran's right knee in March 1991 demonstrated that this joint was still tender distally, that the right femur wounds were well-healed, and that range of motion of the right knee was zero to 135 degrees. X-rays showed that the right knee was stable and that there was excellent alignment and abundant callus. Additional treatment the following day, at which time the veteran complained of some mild pain in the right thigh region, showed ambulatory ability without assistance device, quadricep measurements of 16" on the right and 16 3/4" on the left, gross strength of the right quadriceps of 4+/5 and of the right hamstrings of 4+/5, active and passive ranges of motion of the right knee which were within normal limits, pain at the distal femur, right knee edema, and intact sensation of the right lower extremity. The physician assessed status post fracture of the right femur with residual weakness, atrophy, and some soar adhesions at the incision site. At the end of March 1991, the veteran continued to complain of pain above his right knee. Examination of his right lower extremity showed quadricep girth of 16 1/4" on the right and 16 3/4" on the left, active range of motion of the right knee which was within normal limits, gross strength of the right quadriceps of 4/5, and knee pain proximal to the right patella. The treatment plan was to increase strength in the veteran's right lower extremity. In April 1991, X-rays of the veteran's right femur demonstrated that the fracture at the right distal femur was healing well and that there were increased calluses. According to the May 1991 Medical Board Report, the veteran had nearly full range of motion of his right knee. Examination of the veteran's right lower extremity found that the veteran's right knee was stable, lacked the terminal five degrees of flexion, had palpable calluses, and had intact neurovascular status. The diagnosis was a healing right femur fracture. The veteran was found to be unable to perform full duty for up to one year before he could resume training and his case was referred to the Physical Evaluation Board. At the VA examination conducted in January 1992, the veteran reported to the examiner that, although he could not run in a full sprint, he could ambulate without assistance of a cane. The veteran also explained that, due to the instability he experienced in his right knee, he occasionally wore a knee brace. He also complained of stiffness, swelling, and pain in his right lower extremity. Upon examination of the veteran's right lower extremity, the examiner noted a scar in the right upper femur area and a scar on the lateral aspect of the right upper knee. The examiner found both scars to be well-healed and to have no unusual characteristics. The examination demonstrated no visible swelling or palpable tenderness in the right femur area. The examiner noted that foot hop was unremarkable except for some slight discomfort in the right femur. Ambulation was normal, and the veteran could stand up from a seated position without difficulty. Strength and muscle tone appeared to be normal. Neurological examination showed that deep tendon reflexes were normal and equal and that peripheral sensations were normal. Ligament stretching of the right knee showed no abnormalities. Range of motion studies demonstrated that the veteran had extension and flexion of his right knee from zero degrees to 140 degrees, which the examiner concluded was normal. The veteran could extend and flex his right hip from zero degrees to 125 degrees, which the examiner concluded was normal. X-rays of the right femur showed a healed fracture of the distal femur, slight lucency around the intramedullary fixation device and distal screw, which the radiologist explained could represent loosening, and a very slightly narrowed lateral joint compartment of the knee. The X-rays were otherwise normal. Based on examination of the veteran's right lower extremity as well as the X-ray report, the examiner diagnosed residual fracture of the right femur, including residual rod appliance in the right femur, with aching symptoms which were probably secondary to this residual fracture and with possible slight loosening of the fixation device, resulting in minimal functional impairment. In addition, the examiner diagnosed torn cartilage of the right knee with slight narrowing of the lateral joint compartment and without functional impairment. The veteran could receive a disability evaluation of 20 percent under Code 5255 if the evidence shows a malunion of the femur resulting in moderate knee or hip disability. 38 C.F.R. Part 4, § 4.71a, Code 5255 (1993). The recent medical records do not show moderate knee or hip disability. The veteran has no visible swelling or palpable tenderness, normal strength and muscle tone, and normal deep tendon reflexes and peripheral sensations in his right lower extremity. Moreover, he has full range of motion in his right knee and right hip and thigh. See, 38 C.F.R. Part 4, § 4.71a, Plate II (1993). The only abnormalities shown at the January 1992 VA examination were slight discomfort in the right femur on foot hop, possible slight loosening around the right fixation device, and very slight narrowing of the lateral joint compartment of the right knee. Significantly, the examiner concluded that the veteran's right femur disability resulted in only minimal functional impairment and that his right knee disability did not result in any functional impairment. Based on this medical evidence, the Board concludes that the veteran does not have more than slight impairment of his right knee or his right hip. Therefore, a 20 percent disability rating is not warranted under Code 5255 or 5257. See, 38 C.F.R. Part 4, § 4.71a, Codes 5255 and 5257 (1993). Moreover, as the Board has previously discussed, the veteran has extension of his right hip and thigh to zero degrees and flexion of his right hip to 125 degrees. These results represent full range of motion of the veteran's right hip. See, 38 C.F.R. Part 4, § 4.71a, Plate II (1993). Consequently, the veteran is not entitled to a disability evaluation greater than 10 percent under Code 5251 or 5252. See, 38 C.F.R. Part 4, § 4.71a, Codes 5251 and 5252 (1993). In addition, the January 1992 VA examination demonstrated that the veteran could extend his right knee to zero degrees and could flex his right knee to 140 degrees. These results represent full range of motion of the veteran's right knee. See, 38 C.F.R. Part 4, § 4.71a, Plate II (1993). Consequently, the veteran is not entitled to a disability evaluation greater than 10 percent under Code 5260 or 5261. See, 38 C.F.R. Part 4, § 4.71a, Codes 5260 and 5261 (1993). The Board also notes that at the January 1992 VA examination, the examiner diagnosed torn cartilage of the right knee. Because the veteran is already receiving a 10 percent rating for his service-connected disability based on knee impairment, he can only receive a higher evaluation for symptomatology involving his cartilage under Code 5258. Significantly, however, this examination did not demonstrate that the cartilage in the veteran's right knee was dislocated or that he had frequent episodes of "locking," pain, or effusion into the knee joint. The examiner concluded that the veteran had no functional impairment resulting from torn cartilage. In addition, the examiner found no visible swelling or palpable tenderness in the right femur area, and only very slight narrowing of the lateral joint compartment of the right knee was shown on X-ray. Consequently, the Board concludes that the veteran is not entitled to a 20 percent disability evaluation under Code 5258. See, 38 C.F.R. Part 4, § 4.71a, Codes 5258 and 5259 (1993). The regulations require that the evaluation of a disability of the musculoskeletal system must take into account the functional loss due to pain of the damaged part of the system. 38 C.F.R. Part 4, § 4.40 (1993). In the present case, the veteran's complaints of pain are somewhat supported by the objective findings of the recent examination. The Board concludes that the veteran's current 10 percent rating adequately contemplates the pain that he experiences in his right lower extremity. There is no medical indication that any pain that the veteran might experience is above the level contemplated by the current evaluation. We also note that the veteran contends that his scar is tender and painful. The recent VA examination, however, shows that the scar is essentially asymptomatic. Without reaching the question of whether a separate compensable evaluation could be assigned for the scar, it is sufficient for the purpose of this decision to find that the scar does not warrant a compensable evaluation. See 38 C.F.R. § 4.14, Codes 7803, 7804, 7805 (1993). As noted above, 38 C.F.R. § 4.40 (1993) was considered in reaching a determination in this case. In addition, other provisions of 38 C.F.R. Parts 3 and 4 have also been considered as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). For example, the possibility of an extraschedular evaluation has been considered. However, the Board finds that the present case does not present an exceptional or unusual disability picture with such factors as frequent hospitalization so as to preclude the use of the regular rating criteria. Thus, an increased rating on an extraschedular basis under 38 C.F.R. § 3.321 is not in order. ORDER An increased rating for status post fracture of the right femur with knee impairment is denied. WILLIAM J. REDDY 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.