BVA9500600 DOCKET NO. 92-04 554 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an increased rating for residuals of a shell fragment wound of the left foot with traumatic arthritis, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert E. P. Jones, Associate Counsel INTRODUCTION The veteran served on active duty from February 1967 to January 1969. In June 1986 service connection was granted for residuals of a shell fragment wound of the left forearm, rated as 20 percent disabling, and residuals of a shell fragment wound of the left foot with traumatic arthritis, rated as 10 percent disabling. Service connection for post traumatic stress disorder (PTSD) was granted by a rating action of January 1987. At the time the currently recognized claim was made his PTSD was rated as 50 percent disabling. A hearing officer then increased the rating to 70 percent. This matter came before the Board of Veterans' Appeals (Board) on appeal from a June 1990 rating decision by the Cleveland, Ohio, Regional Office (RO). The case was remanded by the Board for development of a claim for an increased rating for post-traumatic stress disorder in December 1992. A rating action of January 1994 found the veteran to be totally disabled due to his PTSD as of May 1990. He was informed that unless he notified the RO, his appeal on that issue would be withdrawn as it had been granted. In a December 1994 presentation his representative stated that this issue was no longer being pursued by the veteran. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he is entitled to an increased rating for residuals of a shell fragment wound to his left foot. He asserts that he has pain and cramping in the left foot. He maintains that he is no longer able to run or skate because of left foot pain. 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 an increased rating for residuals of a shell fragment wound of the left foot with traumatic arthritis. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The residuals of a shell fragment wound to the left foot include a deformity of the head of the first metatarsal with arthritis in that joint. There is some tenderness and soreness over the first metatarsal head, but sensory and motor function is intact. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for a residuals of a shell fragment wound to the left foot with traumatic arthritis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.71a, Code 5284 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION We note that we have found that the veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a). That is, we find that he has presented a claim which is plausible. We are also satisfied that all relevant facts have been properly developed and that no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). The veteran seeks an increased rating for the residuals of a shell fragment wound to the left foot. The service medical records are silent to a left foot injury. He has stated he was injured on November 25, 1968. Clinical notes show dressing changes on November 27 and December 1, 1968, but do not specify the location of the injury. He denied any illnesses or injuries on his separation examination. The veteran received a Veterans Administration (now Department of Veterans Affairs) (VA) examination in March 1984. Examination of the left foot revealed tender plantar surface and some tenderness between the 3rd and 4th metatarsal heads. X-rays revealed some degenerative bone and joint changes at the 1st metatarsal joint. On VA examination in February 1986 the veteran complained of occasional pain and tenderness of the left foot when he was on it for long periods of time. There was a very slight scar over the plantar surfaces of the metatarsals of the left foot that was slightly tender. No other swelling or deformity was noted. The veteran had a full range of motion of the left foot. The veteran was afforded a VA examination in March 1988. The veteran ambulated normally without cane, crutches or aids. There was some tenderness and soreness over the left metatarsal heads. X-rays revealed slight local hypertrophic change involving the region of the 1st metatarsal phalangeal joint. On VA examination in December 1990 the veteran gave a history of a shrapnel fragment wound to the plantar surface of the left foot in 1965. He reported that a distal flap of skin had been cleaned up by the dispensary and just folded back in place. The veteran walked with a mild left leg limp because of the pain at the metatarsal phalangeal joints, particularly the third and fourth metatarsal heads. The veteran stated that he could not stand on a ladder and had lost a roofing job for that reason. He reported that he got an aching pain distal to where the left foot was lacerated across the sole. He reported that he had to walk everyday or the foot would cramp. He stated that he could not wear tennis shoes because he could feel every pebble and crack and that aggravated his left foot. The veteran used a soft pad in stiff leather shoes to be able to walk. He could not put weight on the toes of his left foot to walk on the forefoot because of pain to the 3rd and 4th toes. Decreased sensation was noted on the plantar surface to the 3rd, 4th and 5th toes and web spaces. X-rays revealed a deformed head of the first metatarsal joint with arthritic changes in that joint. The impression was post traumatic scarring under the metatarsal phalangeal joints of the third and fourth toes with hypoesthesia and pain of the left foot. The veteran testified before a hearing officer at the RO in May 1991. The veteran stated that the toes of his left foot cramped on him. He testified that the pain in his left foot had been getting worse. He stated that he liked to walk every day and that sometimes his left foot made him lame like a horse. The veteran complained of some pain in the left foot on VA examination in June 1991 He reported aching, soreness, and tenderness especially over the metatarsal areas and he wore boots for support on prolonged standing. He was taking no medications for his left foot and the weather did not effect the left foot. No scars were apparent on the veteran's left foot. There was tenderness and soreness over the metatarsal head. No other swelling or deformity in the left foot could be identified. Sensory motor function was intact. The veteran does have soreness and tenderness of the left foot as well as a deformed first metatarsal with traumatic arthritis of that joint. However the overall condition of his left foot is not seriously disabling There is no visible deformity, he has full range of motion, and full sensory motor function of the left foot. The Board finds that the disability to the veteran's left foot does not meet the criteria for moderately severe. 38 C.F.R. § 4.71a, Code 5284. Consequently a rating in excess of 10 percent is not warranted. While the veteran does have pain of the left foot which sometimes affects his walking and that prevents him from wearing tennis shoes, these symptoms are reflected by the current 10 percent rating. In reaching its decision, the Board has considered the complete history of the disability in question as well as the current clinical manifestations and the effect the disability may have on the earning capacity of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (1993). The nature of the original injury has been reviewed and the functional impairment which can be attributed to pain or weakness has been taken into account. 38 C.F.R. § 4.40 (1993). Further, the Board finds that in this case the disability picture is not so exceptional or unusual so as to warrant an evaluation on an extraschedular basis. It has not been shown that the residuals of a shell fragment wound of the left foot with traumatic arthritis have resulted in frequent hospitalization or marked interference with employment. 38 C.F.R. § 3.321(b)(1) (1993). In short, the criteria for an evaluation greater than 10 percent have not been met or approximated. 38 C.F.R. § 4.7. The evidence is not so evenly balanced that there is doubt as to any material issue. 38 U.S.C.A. § 5107. ORDER Entitlement to an increased rating for residuals of a shell fragment wound of the left foot with traumatic arthritis is denied. ROBERT D. PHILIPP 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.