Citation Nr: 1743967	
Decision Date: 09/15/17    Archive Date: 10/10/17

DOCKET NO.  96-38 989	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1.  Entitlement to an effective date, prior to December 23, 2011, for the grant of service connection for right knee degenerative joint disease. 

2.  Entitlement to an initial rating in excess of 10 percent for right knee degenerative joint disease.

3.  Entitlement to a rating in excess of 20 percent for residuals of a right femur fracture.  


REPRESENTATION

Appellant represented by:	Daniel G. Krasnegor, Attorney


ATTORNEY FOR THE BOARD

Christine C. Kung, Counsel


INTRODUCTION

The Veteran served on active duty from January 1980 to December 1982.

This matter comes on appeal before the Board of Veterans' Appeals (Board) from August 1995 and October 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office in Detroit, Michigan (RO).  The August 1995 decision continued a 20 percent rating for residuals of a right femur fracture.  An October 2012 rating decision granted service connection for right knee degenerative joint disease with a 10 percent rating, effective December 23, 2011.  The Veteran has appealed the effective date of the grant of service connection and the initial rating assigned.  

In May 2001, the Board denied an increased rating in excess 20 percent for residuals of a fracture of the right femur.  The Veteran appealed that decision to the Veterans Claims Court.  In an April 2004 memorandum decision, the Court vacated the May 2001 Board decision and remanded the case so the Board could provide adequate notice to the Veteran under the Veterans Claims Assistance Act (VCAA).  

The Board remanded the appeal in October 2008, May 2010, and November 2013 for additional development, to include issuance of VCAA notice, a request for VA examinations, and for issuance of a statement of the case (SOC) to address the appeal for an earlier effective date and a higher initial rating for right knee degenerative joint disease.  This was accomplished and the appeal is ready for adjudication.  


FINDINGS OF FACT

1.  On July 20, 2010, the Veteran was diagnosed with a chronic right knee disability, secondary to service-connected residuals of a right femoral fracture.  

2.  The date of the July 20, 2010, VA examination is the earliest date that it is factually ascertainable that the Veteran had a chronic right knee disability related to her service-connected right femur.  

3.  There are no documents or communications of record dated prior to July 20, 2010, that constitute a claim for service connection for a right knee disability.

4.  A right knee disability has been characterized by at least 110 degrees flexion, limited by pain, and extension to 0 degrees without pain, with no additional limitations to range of motion on repetition due to pain, fatigue, incoordination, weakness, or lack of endurance.

5.  Residuals of a fracture of the right femur are manifested by a shortening of the right leg by 1.75 inches (in.) as compared to the left as measured from the anterior superior iliac spine to medial malleolus.  

6.  The Veteran does not have malunion of the femur, fracture of the surgical neck of the femur with false joint, for fracture of the shaft or anatomical neck of the femur with nonunion.  


CONCLUSIONS OF LAW

1.  The criteria for an earlier effective date of July 20, 2010, for the grant of service connection for a right knee disability have been met.  38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. §§ 3.157, 3.400 (2016).

2.  The criteria for an initial rating in excess of 10 percent for right knee degenerative joint disease have not been met.  38 U.S.C.A. § 1155, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5260 (2015).

3.  The criteria for a rating in excess of 20 percent for residuals of a fracture of the right femur have not been met.  38 U.S.C.A. § 1155, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.71a, DC 5275 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Earlier Effective Date

Except as otherwise provided, the effective date of an evaluation and award for pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. 

A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA.  38 U.S.C.A. § 5101(a).  A "claim" is defined as a formal or informal communication, in writing, requesting a determination of entitlement, or evidencing a belief in entitlement to a benefit.  38 C.F.R. §§ 3.1(p), 3.151.  Any communication or action indicating intent to apply for one or more VA benefits may be considered an informal claim.  38 C.F.R. § 3.155.  Such an informal claim must identify the benefit sought.  Id.  38 C.F.R. § 3.1(p) defines application as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.  See also Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999).  The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA.  38 C.F.R. § 3.1(r).

VA is required to identify and act on informal claims for benefits.  38 U.S.C.A. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a); see also Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992).  Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim.

In an October 2012 rating decision, the RO granted service connection for right knee degenerative joint disease with a 10 percent rating effective December 23, 2011.  Service connection for right knee degenerative joint disease was granted without application from the Veteran.  A December 23, 2011, VA examination identified an initial diagnosis of right knee degenerative joint disease based on X-ray evidence, and a subsequent July 2012 VA addendum opinion showed that right knee degenerative joint disease was secondary to service-connected residuals of a right femur fracture.  

The Veteran contends in a December 2015 substantive appeal, that prior to 2011, the Veteran had ongoing complaints associated with the knee and asserts that the condition may have been present before that date. After a review of the evidence, an earlier effective date of July 10, 2010, is warranted for service connection for a right knee disability.  

First, a formal or informal application for service connection for a right knee disability was not received in this case, and service connection was granted for a right knee disability, as secondary to a right femur fracture, based on evidence of entitlement raised in VA examinations.

Second, the earliest date that it is factually ascertainable that entitlement arose was the date of a July 10, 2010, VA examination.  The July 2010 examination was performed to determine the degree of severity of right femoral fracture residuals, to include any effect on the right knee.  During examination, the Veteran reported having chronic pain and instability since the early 1990s.  Physical examination of the knee revealed normal alignment, no swelling or effusion, no pain on palpation, no crepitation, and no instability.   There was some degree of hyperextension in the knee joint.  She had 0 degrees flexion and 125 degrees flexion in the right knee without pain.  X-rays were obtained but no finding of arthritis was reported in the right knee.  The diagnosis was chronic right knee sprain.  

The July 2010 VA examination shows that a chronic right knee disability was diagnosed in conjunction with the rating of service-connected right femoral fracture residuals.  No intercurrent causes for the chronic knee sprain was identified.  Resolving reasonable doubt in the Veteran's favor, an earlier effective date of July 20, 2010, is warranted for service connection for a right knee disability, secondary to service-connected residuals of a right femoral fracture.  

The date of the July 20, 2010, examination is the earliest date that it is factually ascertainable that the Veteran had a chronic right knee disability related to her service-connected right femur disability.  Significantly, earlier January 1997, November 1999, and June 2009 VA examinations of the right leg and femur did not identify any diagnoses or pathology in the right knee.  November 1999 x-rays of the right knee were normal without any arthritis or bony abnormality.  An MRI of the right knee showed no ligamentous or meniscal tear.  A November 1995 private orthopedic evaluation noted that the Veteran reported giving way of the right knee.  The physician indicated, however, that this was possibly due to weakness in the right lower extremity, especially with shortening in the leg.  A right knee disability was not diagnosed.  June 1995 VA X-rays of the right knee were normal.  

It is not factually ascertainable that the Veteran had a chronic right knee disability prior to July 20, 2010.  Moreover, prior to the July 20, 2010, VA examination, there were no communications or actions evidencing intent to apply for, or a belief in entitlement to service connection for a right knee disability.  The Veteran's earlier complaints of right knee pain and instability are not sufficient to establish factual entitlement absent a diagnosis or pathology shown in the knee, nor does it constitute an earlier informal claim for service connection.  

Treatment records do not constitute informal claims when service connection has not yet been established for the condition.  See 38 C.F.R. § 3.157; Sears v. Principi, 16 Vet. App. 244 (2002).  While the VA should broadly interpret submissions from a veteran, it is not required to conjure up claims not specifically raised.  Brannon v. West, 12 Vet. App. 32 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). 

Because a right knee disability was identified at the time of a July 20, 2010, examination, without prior evidence of a diagnosed disability in the knee secondary the service-connected right femur, July 20, 2010, is the earliest factually ascertainable date that the Veteran was entitled to service connection.  Resolving reasonable doubt in her favor, that an earlier effective date of July 20, 2010, is granted service connection for a right knee disability. 

Increased Rating Claims

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.A. § 1155; 38 C.F.R. § 4.1.  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran.  38 C.F.R. § 4.3. 

The Veteran has challenged the initial rating assigned a right knee disability by seeking appellate review.  Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (noting distinction between claims stemming from an original rating versus increased rating); see also Proscelle v. Derwinski, 2 Vet. App. 629, 631-32 (1992) (discussing aspects of a claim for increased disability rating).  Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" rating.  Fenderson, 12 Vet. App. at 126.  

The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  Based on the evidence of record, a staged rating is not warranted for right knee degenerative joint disease or for residuals of a right femur fracture.  

In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness.  DeLuca v. Brown, 
8 Vet. App. 202 (1995).  Functional loss may be due to due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.  38 C.F.R. § 4.40.  Weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability.  38 C.F.R. § 4.45.  

With any form of arthritis, painful motion is an important factor of disability; therefore, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints.  Muscle spasm will greatly assist the identification.  The intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability.  It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  

Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased.  Flexion elicits such manifestations.  The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.  38 C.F.R. § 4.59.

Pyramiding, that is the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability. 38 C.F.R. § 4.14.  However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition.  See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). 

Right Knee

Under DC 5003, degenerative arthritis is rated based on limitation of motion under the appropriate diagnostic codes for the specific joint involved.  However, when the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003.  

Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  In the absence of limitation of motion, a 10 percent rating is assigned with x-ray evidence of involvement of two or more major joints; a 20 percent rating is assigned with x- ray evidence of involvement of two or more major joints with occasional incapacitating exacerbations.  38 C.F.R. § 4.71a.   

DC 5257 (other impairment of the knee) assigns a 30 percent rating for severe recurrent subluxation or lateral instability; a 20 percent rating for moderate recurrent subluxation or lateral instability; and a 10 percent rating for slight recurrent subluxation or lateral instability.  Under DC 5258, a 20 percent rating is assigned for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint.  Under DC 5259, a 10 percent rating is assigned for removal of semilunar cartilage which is symptomatic. 

Under DC 5260, limitation of flexion of the leg is noncompensable where flexion is limited to 60 degrees.  A 10 percent rating is warranted where flexion is limited to 45 degrees; a 20 percent rating is warranted where flexion is limited to 30 degrees; and a 30 percent rating is warranted where flexion is limited to 15 percent.  Under DC 5261 (limitation of extension of the leg), a 10 percent rating is warranted where extension is limited to 10 degrees; a 20 percent rating is warranted where extension is limited to 15 degrees; a 30 percent rating is warranted where extension is limited to 20 degrees; a 40 percent rating where extension is limited to 30 degrees; and a 50 percent rating is warranted where extension is limited to 45 degrees. 

VA's Office of General Counsel has provided guidance concerning increased rating claims for knee disorders.  Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition.  See Esteban, 6 Vet. App. at 262.  VA's General Counsel interpreted that compensating a claimant for separate functional impairment under DCs 5257 and 5003 does not constitute pyramiding.  VAOPGCPREC 23-97. 

In VAOPGCPREC 9-98, VA's General Counsel reiterated that if a veteran has a disability rating under DC 5257 for instability of the knee, and there is also X-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59.  In addition, the General Counsel considered a hypothetical situation in which a knee disability was evaluated under DC 5259 that was productive of pain, tenderness, friction, osteoarthritis established by x-rays, and a slight loss of motion.  

For the purposes of the hypothetical, it was assumed that DC 5259 did not involve limitation of motion.  Given the findings of osteoarthritis, the General Counsel stated that the availability of a separate rating under DC 5003 in light of sections 4.40, 4.45, 4.59 must be considered.  See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991).  Absent X-ray findings of arthritis, limitation of motion should be considered under DCs 5260 and 5261.  The claimant's painful motion may add to the actual limitation of motion so as to warrant a rating under DCs 5260 or 5261.

The General Counsel further noted in VAOPGCPREC 9-98 that the removal of the semilunar cartilage may involve restriction of movement caused by tears and displacements of the menisci, but that the procedure may result in complications such as reflex sympathetic dystrophy, which can produce loss of motion.  Therefore, limitation of motion is a relevant consideration under DC 5259, and the provisions of 38 C.F.R. § 4.40, 4.45, and 4.59 must be considered.

In addition, the VA General Counsel has held that separate ratings may be assigned under DC 5260 and DC 5261 for disability of the same joint.  VAOPGCPREC 9-2004.  Specifically, where a veteran has both a limitation of flexion and a limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg.

The Veteran contends that a higher initial rating is warranted for her right knee disability.  After a review of all the evidence, lay and medical, for the entire rating period, right knee degenerative joint disease was characterized by at least 110 degrees flexion limited by pain, and full extension without pain.  The weight of the evidence shows that there were no additional limitations to range of motion on repetition due to pain, fatigue, incoordination, weakness, or lack of endurance. 

A July 2010 VA examination showed that the Veteran had 0 degrees extension and 125 degrees flexion with no pain, and no painful motion.  Repetitive movements were stated to be normal with no further limitation and no pain.  A December 2011 VA examination shows that she had 110 degrees flexion in the right knee with painful motion beginning at 110 degrees.  She had 0 degrees extension with no objective evidence of painful motion.  She was not able to perform repetitive use testing due to pain.  It was noted that functional loss was due to pain on movement of the knee.  

A December 2014 VA examination shows that the Veteran had 110 degrees flexion in the right knee, and 0 degrees extension.  She was able to perform repetitive use testing with at least three repetitions, and there was no additional functional loss or loss to range of motion after three repetitions.  Pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over time.  She denied having flare-ups of pain during December 2011 and December 2014 VA examinations.  

Based on the evidence, higher or separate ratings are not warranted under DCs 5260 or 5261 for a right knee disability.  The Veteran is currently in receipt of a 10 percent rating under DC 5260.  A 10 percent rating under DC 5260 is assigned for flexion limited to 45 degrees and a 10 percent rating under DC 5261 is assigned for extension limited to 10 degrees.  For the entire rating period, her disability does not approximate 45 degrees flexion or 10 degrees extension in the right knee.  VA examinations identify at least 110 degrees forward flexion, limited by pain, and show no loss of extension in the right knee.  While she was unable to complete repetitive use testing in December 2011 due to pain, she had no such limitations to performing repetitive use testing, without additional loss of motion or function during July 2010 and December 2014 VA examinations.   

Thus, the weight of the evidence shows that there were no additional limitations to range of motion on repetition motion due to pain, fatigue, incoordination, weakness, or lack of endurance.  Even with consideration of the limitation to flexion in the right knee due to pain, and her inability to complete repetitive motion during the single examination, range of motion in the right knee did not approximate flexion limited to 45 degrees at any time during the appeal period.  

38 C.F.R. § 4.59 provides, however, that the intent of the rating schedule is to recognize painful motion with joint or particular pathology as productive of disability.  The 10 percent rating currently assigned for the right knee disability was assigned based on evidence of noncompensable limitation of flexion in the right knee with consideration of functional limitations to range of motion due to pain and other factors.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995).  A rating in excess of 10 percent is not warranted under DC 5260 where the Veteran had at least 110 degrees forward flexion in the right knee even with consideration of pain, painful motion, and limitations on repetitive testing.  

Further, a separate rating is not warranted under DC 5261 where painful motion is already considered by the assigned 10 percent rating under DC 5260, and the Veteran's disability does not result in extension limited to 10 degrees such that it more nearly approximates the next higher rating under DC 5261.  

The Board has considered whether separate compensable ratings are warranted for the right knee under other applicable provisions of the diagnostic code.  The evidence of record does not reflect ankylosis of the right knee to warrant an rating under DC 5256.  VA examinations show that the Veteran has measurable range of motion in right knee joints without ankylosis. 

The Veteran does not have recurrent subluxation or lateral instability of the right knee to warrant a compensable rating under DC 5257.  While she has consistently reported having instability in the knee with a feeling of giving way of the knee, a clinical finding of recurrent subluxation or lateral instability within the meaning of DC 5275 has not been shown.  

A July 2010 VA examination indicates that the knee joint was stable.  During the December 2011 VA examination, the right knee was normal on testing for anterior or posterior instability.  There was no evidence or history of recurrent patellar subluxation or dislocation.  A December 2014 VA examination shows that there was no joint stability, and the knee joint was found to be normal on testing for anterior instability, posterior instability, medial instability, and lateral instability in the right knee.  Additionally, there was no recurrent patellar dislocation.  In the absence of recurrent subluxation and lateral instability in the right knee, right knee disability has not met or more nearly approximated the criteria for separate 10 percent disability rating under DC 5257.  

The record does not reflect dislocated semilunar cartilage in the right knee to warrant an rating under DC 5258.  For these reasons, a separate rating is not warranted under DC 5258.  Additionally, VA examinations show that the Veteran had not had removal of semilunar cartilage in the right knee to warrant a rating under DC 5259 for removal of semilunar cartilage which is symptomatic.  

For the reasons discussed above, the preponderance of the evidence is against the appeal for a higher initial rating in excess of 10 percent for a right knee disability.  Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.

The Board has also considered her statements indicating that her knee buckled, gave way, or felt unstable with walking.  In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 

Competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

In this case, the Veteran is competent to report symptoms related to a feeling of instability in the knee or of the knee buckling because this requires only personal knowledge as it comes to her through her senses.  Layno, 6 Vet. App. at 470.  She is not, however, competent to identify a specific level of disability of these disorders according to the appropriate diagnostic codes. 

Such competent evidence concerning the nature and extent of the Veteran's right knee disability has been provided by the medical personnel who have examined her during the current appeal and who have rendered pertinent opinions in conjunction with the ratings.  The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which these disabilities are evaluated.  

Moreover, as the examiners have the requisite medical expertise to render medical opinions regarding the degree of impairment caused by the disabilities and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinions great probative value.  As such, these records are more probative than the Veteran's subjective evidence of knee instability.

Right Femur Fracture

Residuals of a right femur fracture are currently rated under, DC 5275 based on shortening of the bones of the lower extremity.  A 20 percent rating is assigned with shortening of 2 to 21/2 in. (5.1 cm to 6.4 cm); a 30 percent rating is assigned for shortening of  2 1/2 to 3 in. (6.4 cm to 7.6 cm); a 40 percent rating is assigned for shortening of  3 to 31/2 in. (7.6 cm to 8.9 cm).  A Note to DC 5275 provides that both lower extremities should be measured from the anterior superior spine of the ilium to the internal malleolus of the tibia.  Ratings under this code are not to be combined with other ratings for fracture or faulty union of the same extremity.  38 C.F.R. § 4.71a. 

DC 5255 pertains to impairment of the femur.  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.  60 percent ratings are assigned with a fracture of the surgical neck of the femur with false joint, or with fracture of the shaft or anatomical neck of the femur with nonunion, without loose motion, and weight bearing preserved with the aid of a brace.  An 80 percent rating is assigned with fracture of the shaft or anatomical neck of the femur with nonunion, with loose motion.  38 C.F.R. § 4.71a.

Based on the evidence, a rating in excess of 20 percent is not warranted based on shortening of the bones of the lower extremity under DC 7275.  A November 1995 VA examination noted a two inch shortening of the right leg.  An October 1996 VA examination showed that a status post fracture to the shaft of the right femur resulted in a 1.75 in. shortening of the right leg.  VA examinations dated in November 1999, June 2009, July 2010, and December 2011 VA examinations all show that the right lower limb was 1.75 in. shorter than the left as measured from the anterior superior iliac spine of the medial malleolus.  

A December 2014 VA examination showed that, measured from the anterior superior iliac spine to the internal malleolus of the tibia, the right leg measured 86 cm in length and the left leg measured 90 cm.  Based on the measurements provided above, which predominantly identify a 1.75 in. shortening of the right leg, a higher 30 percent rating is not warranted under DC 7275 where the Veteran's disability did not approximate a rating based on shortening of the right leg by 21/2 to 3 in. (6.4 cm to 7.6 cm) at any time during the appeal period.  

The Veteran has provided lay statements during VA examinations and in support of her appeal describing symptoms related to pain in the knee, hip, and leg, limitations to walking, standing, and kneeling, and giving way of the knee or leg.  She is competent to report such symptoms, and finds that she is credible.   She is not, however, competent to identify a specific level of disability of these disorders according to the appropriate diagnostic codes. 

In this case, the Board finds that the Veteran's rating under DC 7275 contemplates her functional limitations due to the shortening of her leg and associated pain symptoms.  The Veteran is also in receipt of separate ratings for service-connected disabilities of the right knee and right hip secondary to the residuals of a right femur fracture.  The appeal for a higher initial rating for the right knee disability was addressed above and separately assigned ratings based on limitation of motion in the right hip are not currently on appeal.  

The Veteran contends that an alternate rating should be assigned under DC 5255 for impairment of the femur.  However, malunion of the femur, a fracture of the surgical neck of the femur with false joint, or fracture of the shaft or anatomical neck of the femur with nonunion are not shown to warrant a rating under DC 5255.  The record shows that she has a healed fracture to the shaft of the right femur with no malunion or nonunion of the femur.  

November 1999 X-rays and August 2009 VA X-rays both showed a healed fracture of the shaft of the right femur with good alignment.  While July 2010 X-rays showed deformity of the midfemoral diaphysis, likely related to the old healed fracture with callus formation, there was no dislocation, and nonunion or malunion of the femur.   December 2011 and December 2014 VA examinations identified a healed fracture of the shaft of the right femur with leg length discrepancy but not malunion or nonunion of the femur.  Absent any finding of nonunion or malunion of the femur, an alternate rating under DC 5255 is not warranted.  

For the reasons discussed above, the preponderance of the evidence is against the appeal for an increased rating in excess of 20 percent for residuals of a fracture of the right femur.  Because the preponderance of the evidence is against the appeal for an increased rating, the benefit of the doubt doctrine is not for application.  

Finally, the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006).  

In an April 2014 memorandum decision, the Court vacated a May 2001 Board decision which denied an increased rating for residuals of a fracture of the right femur and remanded the appeal so VA could provide adequate VCAA notice addressing the issue.  The Board remanded the appeal for such notice in December 2008, and finds that subsequently issued January 2009 VCAA notice adequately addressed the claim for an increased rating residuals of a right femur fracture.  

A November 2014 notice letter adequately addressed the claim for an increased rating for right knee degenerative joint disease and also provided information on how VA determines a disability rating and an effective date. While January 2009 and November 2014 notice letters were not provided prior to initial adjudication of the appeal, the Veteran's appeals were readjudicated in a December 2015 SOC and in supplemental statements of the case.  Therefore, no further notice is needed under VCAA regarding this issue.

VA has made reasonable efforts to obtain relevant records and evidence.  The information and evidence that has been associated with the claims file includes lay statements, VA and private medical records, and VA examinations.  The Veteran was afforded multiple VA examinations to address service-connected residuals of a femoral fracture and a right knee disability.  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  

The examinations obtained in this case are adequate for rating purposes.  VA examinations included complete physical examinations of the Veteran and, cumulative, addressed all the relevant rating criteria.  For these reasons, VA has fulfilled the duties to notify and assist.



ORDER

An earlier effective date of July 20, 2010, is granted for service connection for a right knee disability.

An initial rating in excess of 10 percent for right knee degenerative joint disease is denied.

A rating in excess of 20 percent for residuals of a right femur fracture is denied.  



____________________________________________
L. HOWELL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs

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