HIP IMPAIRMENT OF

GAYLE STROMMEN · 2026 · Case ID: A26031619

MIXED

Summary

The veteran, who served in the U.S. Army from February 1986 to July 1989 and October 1989 to October 1993, appeals a March 2021 rating decision that reduced his disability evaluation for postoperative residuals of a closed left femoral shaft fracture from 20 percent to 10 percent. The veteran also appealed the denial of an increased rating for other aspects of the same fracture residuals and for a scar resulting from the fracture. The Board reviewed the evidence under the Appeals Modernization Act framework. Regarding the reduction, the Board found it void ab initio because the VA failed to follow the procedural and substantive requirements of 38 C.F.R. § 3.344 for reducing a rating in effect for over five years. Specifically, the VA did not demonstrate material improvement or that any improvement would be maintained. The Board noted that the VA examination report, which formed the basis for the reduction, actually showed more severe limitations in some aspects compared to the prior examination. Therefore, the Board restored the 20 percent disability evaluation for the postoperative residuals of the left femoral shaft fracture with limitation of adduction, effective March 8, 2021. For the claims seeking increased ratings for limitation of flexion and extension, the Board denied these, finding the veteran's limitations did not meet the criteria for higher ratings and that compensating for painful motion in multiple planes would constitute prohibited pyramiding. For the scar claim, the Board found the evidence consistent with a 10 percent rating under Diagnostic Code 7804 for a painful scar, granting this rating.

Rationale

Reduction of rating void ab initio due to failure to follow 38 C.F.R. § 3.344; AOJ did not demonstrate material improvement or certainty of maintained improvement; Prior examination showed more severe limitations than the one used for reduction

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

7804

Docket No.

210622-167397

Full Decision Text

Citation Nr: A26031619
Decision Date: 04/07/26 Archive Date: 04/07/26

DOCKET NO. 210622-167397
DATE: April 7, 2026

ORDER

Restoration of a 20 percent disability evaluation for postoperative residuals of a closed left femoral shaft fracture with residual pain and hip disability with slight narrowing of the hip joint, degenerative arthritis, and limitation of adduction, effective March 8, 2021, is granted.

Entitlement to an increased disability evaluation for postoperative residuals of a closed left femoral shaft fracture with residual pain and hip disability with slight narrowing of the hip joint, degenerative arthritis, and limitation of flexion, currently rated as noncompensable, is denied.

Entitlement to an increased disability evaluation for postoperative residuals of a closed left femoral shaft fracture with residual pain and hip disability with slight narrowing of the hip joint, degenerative arthritis, and limitation of extension, currently rated as noncompensable, is denied.

Entitlement to an increased, 10 percent disability evaluation for scar, residual of left femur fracture, is granted.

FINDINGS OF FACT

1. The decision to reduce the rating for service-connected postoperative residuals of a closed left femoral shaft fracture with residual pain and hip disability with slight narrowing of the hip joint, degenerative arthritis, and limitation of adduction from 20 percent disabling to 10 percent disabling, as of March 8, 2021, was not supported by the evidence contained in the record at the time of the reduction.

2. The Veteran's postoperative residuals of a closed left femoral shaft fracture with residual pain and hip disability with slight narrowing of the hip joint, degenerative arthritis, and limitation of flexion, is productive of limitation of flexion, manifested by pain on motion with flexion to 70 degrees, without flail joint impairment, ankylosis, or functional loss beyond pain.

3. The Veteran's postoperative residuals of a closed left femoral shaft fracture with residual pain and hip disability with slight narrowing of the hip joint, degenerative arthritis, and limitation of extension, is productive of limitation of extension, manifested by pain on motion with extension to 10 degrees, without flail joint impairment, ankylosis, or functional loss beyond pain.

4. For the entire rating period on appeal, the Veteran's scar, residual of left femur fracture, is painful, but is not at least 6 inches square, deep, nonlinear, or unstable; there are no disabling effects due to the scar.

CONCLUSIONS OF LAW

1. The reduction of the disability evaluation for the Veteran's service-connected postoperative residuals of a closed left femoral shaft fracture with residual pain and hip disability with slight narrowing of the hip joint, degenerative arthritis, and limitation of adduction, from 20 percent disabling to 10 percent disabling was not proper, and the 20 percent disability evaluation is restored from March 8, 2021. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.71a, Diagnostic Code 5253.

2. The criteria for a compensable disability rating for postoperative residuals of a closed left femoral shaft fracture with residual pain and hip disability with slight narrowing of the hip joint, degenerative arthritis, and limitation of flexion, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5252.

3. The criteria for a compensable disability rating for postoperative residuals of a closed left femoral shaft fracture with residual pain and hip disability with slight narrowing of the hip joint, degenerative arthritis, and limitation of extension, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5251.

4. The criteria for a 10 percent disability evaluation, but no higher, for a scar, residual of left femur fracture, have been met. 38 U.S.C
narrowing of the hip joint, degenerative arthritis, and limitation of extension, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5251.

4. The criteria for a 10 percent disability evaluation, but no higher, for a scar, residual of left femur fracture, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.118, Diagnostic Codes 7801 - 7805.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from February 1986 to July 1989 and from October 1989 to October 1993.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ).

The Appeals Modernization Act (AMA) creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review. The AMA became effective on February 19, 2019. 38 C.F.R. § 3.2400(a)(1). The rating decision in this case was issued after February 19, 2019; thus, the AMA framework applies.

In a March 9, 2021 rating decision, the AOJ reduced the disability evaluation for the Veteran's postoperative residuals of a closed left femoral shaft fracture with residual pain and hip disability with slight narrowing of the hip joint, degenerative arthritis, and limitation of adduction from 20 percent to 10 percent, effective March 8, 2021; the AOJ also denied the Veteran's claim of entitlement to an increased disability evaluation for his left leg scar. The AOJ also awarded service connection for postoperative residuals of a closed left femoral shaft fracture with residual pain and hip disability with slight narrowing of the hip joint, degenerative arthritis, and limitation of flexion and postoperative residuals of a closed left femoral shaft fracture with residual pain and hip disability with slight narrowing of the hip joint, degenerative arthritis, and limitation of extension; a noncompensable disability evaluation was assigned for each plane of motion, effective March 8, 2021. The Veteran was notified of this decision on March 10, 2021.

The Veteran appealed the March 2021 rating decision to the Board by filing a June 22, 2021 VA Form 10182, Decision Review Request: Board Appeal, wherein the Veteran requested a Board hearing. On June 23, 2021, the Board acknowledged receipt of the Veteran's Board Appeal request (VA Form 10182). The Veteran was afforded a hearing before the undersigned Veterans Law Judge (VLJ) of the Board on March 11, 2025. Under its review, the Board will now consider all evidence of record as of the March 10, 2021 notice of the rating decision on appeal, and any evidence submitted within 90 days of the Board hearing.

Duties to Notify and Assist

Neither the Veteran, nor his representative, have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

Reduction

For a reduction of a disability rating to be proper, there are both procedural and substantive requirements that must be followed.

The provisions of 38 C.F.R. § 3.105(e) allow for the reduction in evaluation of a service-connected disability when warranted by the evidence, but only after following certain procedural guidelines. The AOJ must issue a rating action proposing the reduction and setting forth all material facts and reasons for the reduction. The Veteran must then be given 60 days to submit additional evidence and to request a pred
Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

Reduction

For a reduction of a disability rating to be proper, there are both procedural and substantive requirements that must be followed.

The provisions of 38 C.F.R. § 3.105(e) allow for the reduction in evaluation of a service-connected disability when warranted by the evidence, but only after following certain procedural guidelines. The AOJ must issue a rating action proposing the reduction and setting forth all material facts and reasons for the reduction. The Veteran must then be given 60 days to submit additional evidence and to request a predetermination hearing. Then a rating action will be taken to effectuate the reduction. 38 C.F.R. § 3.105(e). The effective date of the reduction will be the last day of the month in which a 60-day period from the date of notice to the Veteran of the final action expires. 38 C.F.R. § 3.105(e), (i)(2)(i).

Notwithstanding the requisite procedural steps, a rating reduction is not proper unless the Veteran's disability shows actual improvement in his or her ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 349 (2000). Congress has provided that a Veteran's disability will not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155.

When a Veteran's disability rating is reduced by an AOJ without following the applicable regulation, the reduction is void ab initio. See Greyzk v. West, 12 Vet. App. 288, 292 (1999). Thus, to remedy such cases, the decision must be reversed as unlawful. Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992).

Specific requirements must be met in order for VA to reduce certain ratings assigned for service-connected disabilities. See 38 C.F.R. § 3.344. Where a disability rating has been in effect less than five years, a rating reduction is warranted where reexamination of the disability discloses improvement of that disability. 38 C.F.R. § 3.344(c).

In certain rating reduction cases, VA benefits recipients are to be afforded greater protections, set forth in 38 C.F.R. § 3.344(a), (b). Those sections provide that rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. However, the provisions of 38 C.F.R. § 3.344(c) specify that those considerations are required for ratings which have continued for long periods at the same level (five years or more), and that they do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant a reduction in rating. See Brown v. Brown, 5 Vet. App. 413, 418 (1993) (noting that the duration of a rating must be measured from the effective date assigned that rating until the effective date of the actual reduction).

Under 38 C.F.R. § 3.344(a), (b) the AOJ must find the following: (1) based on a review of the entire record, the examination forming the basis for the reduction is full and complete, and at least as full and complete as the examination upon which the rating was originally based; (2) the record clearly reflects a finding of material improvement; and (3) it is reasonably certain that the material improvement found will be maintained under the ordinary conditions of life. Kitchens v. Brown, 7 Vet. App. 320 (1995).

In general, when there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. However, the Court of Appeals for Veterans Claims (Court) has specified a different burden of proof with respect to ratings reductions claims. Because the issue in this case is whether the AOJ was justified in reducing the Veteran's rating, rather than whether the Veteran was entitled to "reinstatement" of the rating, the Board is required to establish, in compliance with 38 C.F.R. § 3.344(a), that a
approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. However, the Court of Appeals for Veterans Claims (Court) has specified a different burden of proof with respect to ratings reductions claims. Because the issue in this case is whether the AOJ was justified in reducing the Veteran's rating, rather than whether the Veteran was entitled to "reinstatement" of the rating, the Board is required to establish, in compliance with 38 C.F.R. § 3.344(a), that a rating reduction was warranted. See Brown 5 Vet. App. at 420; see also Kitchens 7 Vet. App. at 325.

Disability ratings are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt shall be resolved in favor of the Veteran, and where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. §§ 3.102, 4.3, 4.7. In addition, the Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disorder in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

1. Entitlement to restoration of a 20 percent disability evaluation for residuals, closed left femoral shaft fracture, postoperative, with residual pain and hip disability with slight narrowing hip joint and degenerative arthritis, with limitation of adduction, effective March 08, 2021.

The Board notes that the Veteran does not claim entitlement to a disability evaluation in excess of 20 percent for his service-connected postoperative residuals of a closed left femoral shaft fracture with residual pain and hip disability, slight narrowing of the hip joint, degenerative arthritis, and limitation of adduction. As such, the Board's discussion is limited to the propriety of the reduction in the assigned disability evaluation for the Veteran's postoperative residuals of a closed left femoral shaft fracture with residual pain and hip disability with slight narrowing of the hip joint, degenerative arthritis, and limitation of adduction and whether the Veteran is entitled to restoration of the 20 percent disability evaluation.

In this case, the Veteran was assigned a 20 percent disability rating for postoperative residuals of a closed left femoral shaft fracture with residual pain and hip disability with slight narrowing of the hip joint, degenerative arthritis, and limitation of adduction in a September 2004 rating decision, effective June 21, 2004. Therefore, when his rating was reduced effective March 8, 2021, it had been in effect for more than five years, and the provisions of 38 C.F.R. § 3.344 apply. See Brown, supra.

The Board finds that the reduction is void, as the provisions of 38 C.F.R. § 3.344 were not met. A review of the March 2021 rating decision does not reveal that the AOJ considered the regulatory instructions and protections that govern the reduction of a rating in effect for five years or more as set forth in 38 C.F.R. § 3.344. The decision to reduce the Veteran's disability evaluation was not in accordance with the law as the AOJ did not make a finding that the VA compensation examination used as a basis for the reduction was as full and complete as the examination on which the 20 percent rating was established. In addition, the Board observes that the March 2021 decision did not contain any findings or discussion of whether there was a material improvement, and there were no findings that it was reasonably certain that the material improvement found would be maintained under the ordinary conditions of life. In this regard, the Board observes that the AOJ, in the March 2021 rating decision reducing the Veteran's disability rating, indicated that it relied on a March 8, 2021 VA examination report to find that improvement was demonstrated; the Board acknowledges that the March 2021 VA hip and thigh examination report reflects adduction to 15 degrees during active range of motion testing, with adduction estimated as limited to 10 degrees upon repetitive use over time and during flare
addition, the Board observes that the March 2021 decision did not contain any findings or discussion of whether there was a material improvement, and there were no findings that it was reasonably certain that the material improvement found would be maintained under the ordinary conditions of life. In this regard, the Board observes that the AOJ, in the March 2021 rating decision reducing the Veteran's disability rating, indicated that it relied on a March 8, 2021 VA examination report to find that improvement was demonstrated; the Board acknowledges that the March 2021 VA hip and thigh examination report reflects adduction to 15 degrees during active range of motion testing, with adduction estimated as limited to 10 degrees upon repetitive use over time and during flare-ups. However, to the extent that the March 2021 VA hip and thigh examination report demonstrated that the Veteran's symptoms and manifestations of his postoperative residuals of a closed left femoral shaft fracture with residual pain and hip disability with slight narrowing of the hip joint, degenerative arthritis, and limitation of adduction (adduction limited to 10 degrees) were more severe than those found in the August 2004 VA examination upon which the 20 percent disability evaluation was based (adduction to 25 degrees), it appears that the AOJ improperly ignored objective evidence of the continued severity of the symptoms and manifestations of the Veteran's postoperative residuals of a closed left femoral shaft fracture with residual pain and hip disability with slight narrowing of the hip joint, degenerative arthritis, and limitation of adduction. Therefore, the Board finds that the AOJ erred in its March 2021 rating action by reducing the evaluation for postoperative residuals of a closed left femoral shaft fracture with residual pain and hip disability with slight narrowing of the hip joint, degenerative arthritis, and limitation of adduction from 20 percent disabling to 10 percent disabling, effective March 8, 2021.

Additionally, the Board acknowledges that the AOJ, in the March 9, 2021 rating decision, found that the "March 8, 2021, the date of [the Veteran's] hip joint examination, [is] the date it became certain that [the Veteran's] condition has objectively decreased in severity level." However, there is nothing in 38 C.F.R. § 3.344 that allows VA to retroactively justify the reduction of the Veteran's disability evaluation after the effective date of the reduction. Moreover, to the extent that the AOJ also adjudicated the Veteran's claim for restoration as an increased rating claim, the Board finds this was improper; there is nothing in the regulation allowing VA to shift the burden to the Veteran (to establish the evidentiary basis for why the reduction was not warranted and for a higher rating for the service-connected postoperative residuals of a closed left femoral shaft fracture with residual pain and hip disability with slight narrowing of the hip joint, degenerative arthritis, and limitation of adduction). See Brown, 5 Vet. App. 413, 421 (1993) (when VA reduces a rating (under section 3.344), it bears the burden to establish that the rating reduction was warranted).

The law provides that, where a rating reduction was made without observance of the law, the erroneous reduction must be vacated, and the prior rating is restored. Schafrath, 1 Vet. App. at 595. As the Board finds that the March 2021 rating decision, which reduced the Veteran's disability rating for his service-connected postoperative residuals of a closed left femoral shaft fracture with residual pain and hip disability with slight narrowing of the hip joint, degenerative arthritis, and limitation of adduction from 20 percent disabling to 10 percent disabling, was improper, the Veteran's 20 percent disability rating for his service-connected postoperative residuals of a closed left femoral shaft fracture with residual pain and hip disability with slight narrowing of the hip joint, degenerative arthritis, and limitation of adduction is restored, effective March 8, 2021.

Increased Rating

Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3.

Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any
's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3.

Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

In addition, when assessing the severity of a musculoskeletal disability that is rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59.

When evaluating musculoskeletal disabilities, VA must consider whether a higher evaluation is warranted, where the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups. See 38 C.F.R. § § 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Nevertheless, pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Moreover, functional impairment must be supported by adequate pathology. Id.; Johnson v. Brown, 9 Vet. App. 7, 10 (1996) (both citing to 38 C.F.R. § 4.40).

1. Entitlement to an increased disability evaluation for postoperative residuals of a closed left femoral shaft fracture with residual pain and hip disability with slight narrowing of the hip joint, degenerative arthritis, and limitation of flexion, currently rated as noncompensable.

2. Entitlement to an increased disability evaluation for postoperative residuals of a closed left femoral shaft fracture with residual pain and hip disability with slight narrowing of the hip joint, degenerative arthritis, and limitation of extension, currently rated as noncompensable.

The Veteran is currently assigned a noncompensable disability rating for his service-connected postoperative residuals of a closed left femoral shaft fracture with residual pain and hip disability with slight narrowing of the hip joint, degenerative arthritis, and limitation of flexion, pursuant to the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5252. He is also assigned a noncompensable disability evaluation for his service-connected postoperative residuals of a closed left femoral shaft fracture with residual pain and hip disability with slight narrowing of the hip joint, degenerative arthritis, and limitation of extension pursuant to the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5251.

Diagnostic Code 5251 assigns a 10 percent disability evaluation where there is limitation of extension of the thigh to 5 degrees; no higher evaluation is provided under this Code. See 38 C.F.R. § 4.71a, Diagnostic Code 5251.

Under Diagnostic Code 5252, a 10 percent disability evaluation is assigned for flexion of the thigh limited to 45 degrees. For the next higher 20 percent disability evaluation, there must be limitation of flexion to 30 degrees. Flexion limited to 20 degrees warrants a 30 percent disability evaluation, and flexion limited to 10 degrees warrants a 40
. § 4.71a, Diagnostic Code 5251.

Normal range of motion for the hips consists of flexion to 125 degrees, extension to 0 degrees, and abduction to 45 degrees. 38 C.F.R. § 4.71a, Plate II.

Analysis

After a review of the evidence, the Board finds that the Veteran's postoperative residuals of a closed left femoral shaft fracture with residual pain and hip disability with slight narrowing of the hip joint, degenerative arthritis, and limitation of flexion most closely approximates the criteria for the currently assigned noncompensable disability rating for the rating period on appeal. In this regard, the Board notes that the March 2021 VA examination report clearly demonstrates that the Veteran experiences limitation of flexion of the left hip to no worse than 70 degrees during repetitive use over time and/or during a flareup. The Board also observes that the Veteran was able to cross his legs; and internal rotation as not limited to more than 10 degrees, and external rotation was not limited to more than 25 degrees.

Furthermore, considering the rating criteria applicable to the Veteran's postoperative residuals of a closed left femoral shaft fracture with residual pain and hip disability with slight narrowing of the hip joint, degenerative arthritis, and limitation of extension, the Board finds that the Veteran's postoperative residuals of a closed left femoral shaft fracture with limitation of extension most closely approximates the criteria for the currently assigned noncompensable disability rating. The Board acknowledges that the Veteran experiences pain on extension of the left hip. However, the Board observes that the Veteran does not experience extension limited to 5 degrees. The March 2021 VA examination reflects that the Veteran had extension greater to no worse than 10 degrees, as estimated during a flare-up with pain on motion, and no other evidence or record demonstrates compensable loss of motion in extension. 38 C.F.R. § 4.71a, Diagnostic Codes 5251.

With regard to functional loss, the Board notes that the Veteran is already being compensated for painful left hip joint motion in his evaluation for his postoperative residuals of a closed left femoral shaft fracture with residual pain and hip disability with slight narrowing of the hip joint, degenerative arthritis, and limitation of adduction. To award him additional compensation for painful, noncompensable limitation of motion of flexion and limitation of extension would constitute prohibited pyramiding by compensating the same hip joint symptom, pain, in different planes. 38 C.F.R. § 4.14. Absent actual compensable limitation of motion in these planes, the Board finds that separately compensating painful motion, standing alone, in multiple planes, is prohibited.

To the extent that the Veteran claims that his pain upon motion is the equivalent of limited motion, the Board finds that the Veteran's subjective complaints of pain have been contemplated in the current rating assignments, as the current disability ratings assigned for the Veteran's postoperative residuals of a closed left femoral shaft fracture with residual pain and hip disability with slight narrowing of the hip joint, degenerative arthritis, and limitation of flexion and postoperative residuals of a closed left femoral shaft fracture with residual pain and hip disability with slight narrowing of the hip joint, degenerative arthritis, and limitation of extension are based on the objectively demonstrated pain on motion, reduced motion, and functional impairment. See Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). See also Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). Moreover, the available medical findings do not show that painful motion, limitation of motion on repetitive use testing, or pain or limitation of motion on active motion/passive motion/in weight-bearing/nonweight-bearing resulted in functional loss warranting the assignment of a higher evaluation for the left hip in any plane of motion during the entire appeal period. See Correia v. McDonald, 28 Vet. App. 158 (2016). Thus
pain on motion, reduced motion, and functional impairment. See Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). See also Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). Moreover, the available medical findings do not show that painful motion, limitation of motion on repetitive use testing, or pain or limitation of motion on active motion/passive motion/in weight-bearing/nonweight-bearing resulted in functional loss warranting the assignment of a higher evaluation for the left hip in any plane of motion during the entire appeal period. See Correia v. McDonald, 28 Vet. App. 158 (2016). Thus, the Board finds that the Veteran's painful motion is contemplated in the currently assigned disability ratings.

To the extent that the Veteran reports flare-ups, the Board finds that the Veteran's flare-ups do not show that the evidence more nearly approximates a disability picture with limitation of flexion of the left hip to 45 degrees or less or limitation of extension of the left hip to 5 degrees or less. 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5251, 5252. Therefore, the lay and medical evidence demonstrates that the Veteran's symptoms do not result in additional functional limitation to a degree that would support higher ratings for postoperative residuals of a closed left femoral shaft fracture with residual pain and hip disability with slight narrowing of the hip joint, degenerative arthritis, and limitation of flexion and postoperative residuals of a closed left femoral shaft fracture with residual pain and hip disability with slight narrowing of the hip joint, degenerative arthritis, and limitation of extension, during the entire rating period on appeal. Further, there is no indication that during flare-ups the Veteran's range of motion was limited by pain to the equivalent of ankylosis. Thus, additional compensation on this basis is not warranted. See Chavis v. McDonough, 34 Vet. App. 1 (2021) (the Court explained that the ankylosis requirement "can be met with evidence of the functional equivalent of ankylosis during a flare.").

As such, the Board finds that the Veteran is not entitled to compensable disability ratings for his service-connected postoperative residuals of a closed left femoral shaft fracture with residual pain and hip disability with slight narrowing of the hip joint, degenerative arthritis, and limitation of flexion or his service-connected postoperative residuals of a closed left femoral shaft fracture with residual pain and hip disability with slight narrowing of the hip joint, degenerative arthritis, and limitation of extension. Accordingly, the Veteran's claims for increased disability evaluations are denied.

3. Entitlement to an increased disability evaluation for scar, residual of left femur fracture, currently rated as noncompensable.

The Veteran's service-connected scar, residual of left femur fracture, is assigned a noncompensable disability rating pursuant to Diagnostic Code 7802. The Veteran generally contends that he is entitled to a higher rating for his left hip scar.

The current version of Diagnostic Code 7801 contemplates burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7801. A 10 percent rating is awarded when the area of the scar(s) covers at least 6 square inches (39 square cm) but less than 12 square inches (77 square cm). A 20 percent rating is warranted when the area of the scar(s) covers at least 12 square inches (77 square cm) but less than 72 square inches (456 square cm). A 30 percent rating is warranted when the area of the scar(s) covers at least 72 square inches (456 square cm) but less than 144 square inches (929 square cm). A 40 percent rating is assigned when the area of the scar(s) covers at least 144 square inches (929 square cm) or greater. 38 C.F.R. § 4.118, Diagnostic Code 7801.

Diagnostic Code 7802 provides rating criteria for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7802. A 10 percent disability rating is warranted when the area of the scar covers 144 square inches (929 square cm) or greater.

Diagnostic Code 7804 provides disability ratings for scars that are unstable or painful. A 10 percent rating for is assigned for one or two such scars. A 20
929 square cm) or greater. 38 C.F.R. § 4.118, Diagnostic Code 7801.

Diagnostic Code 7804 provides disability ratings for scars that are unstable or painful. A 10 percent rating for is assigned for one or two such scars. A 20 percent rating is warranted for three to four such scars, and a 30 percent disability rating is assigned for five or more scars. Note (1) states that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, an additional 10 percent should be added to the evaluation based on the total number of unstable or painful scars. Note (3) states that scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this Diagnostic Code, when applicable. 38 C.F.R. § 4.118, Diagnostic Code 7804.

Diagnostic Code 7805 provides that other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804 require the evaluation of any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800 - 7804 under an appropriate Diagnostic Code. 38 C.F.R. § 4.118, Diagnostic Code 7805.

Analysis

After a review of all the evidence, the Board finds that the Veteran's scar, residual of left femur fracture, most closely approximates the criteria for a 10 percent disability evaluation, for a tender and painful scar under Diagnostic Code 7804, for the entire rating period on appeal. The Board acknowledges that the March 2021 VA hip and thigh examiner indicated that the Veteran denied experiencing "any issues" with his left hip scar but nonetheless noted that the Veteran reported feeling "some tingling intermittently." The Board also acknowledges that the VA examiner also indicated that there was "no objective evidence of pain with palpation" at the examination. Nonetheless, the Board observes that the Veteran credibly testified at his March 2025 hearing before the undersigned VLJ that his left hip scar is painful.

A higher disability evaluation is unavailable under Diagnostic Codes 7801 or 7805. With regard to Diagnostic Code 7801, the objective clinical evidence of record, namely the March 2021 VA hip and thigh examination report shows that the Veteran's has a left hip scar, measuring 15.5 cm by .5 cm. Thus, the total area did not exceed 6 square inches, and the Veteran's scar does not meet the criteria for a higher rating under this provision. 38 C.F.R. § 4.118, Diagnostic Code 7801. Further, the examiner noted that the scar is superficial, without skin breakdown, keloid formation, inflammation, or edema. Additionally, the scar was not productive of adherence, and there was no evidence that the Veteran's scar caused limitation of motion or disfigurement; the VA examiner explicitly noted that the Veteran's scar did not cause any functional impact. The Board also observes that the Veteran has not made any complaints related to his left hip scar, other than pain. Thus, a higher rating under Diagnostic Code 7805 is not warranted. 38 C.F.R. § 4.118, Diagnostic Code 7805.

As such, the Board finds that the evidence of record demonstrates manifestations consistent with a disability rating of 10 percent, but no higher, for the entire rating period on appeal, for the Veteran's service-connected scar, residual of left femur fracture.

GAYLE STROMMEN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Brokowsky, H.

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.

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