BVA9503540 DOCKET NO. 93-12 490 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an evaluation in excess of 20 percent for residuals of a left ankle fracture with sensory deficits and paresthesia. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD Melissa F. Marquez, Associate Counsel INTRODUCTION The appellant had active service from August 1977 to August 1980, and from August 1984 to February 1990. This matter came before the Board of Veterans' Appeals (hereinafter Board) on appeal from a September 1992 rating decision of the St. Louis, Missouri, Regional Office (hereinafter RO), of the Department of Veterans Affairs (hereinafter VA), which denied entitlement to an evaluation in excess of 20 percent for residuals of a left distal fibula fracture with sensory deficits and paresthesia. In addition, a personal hearing was conducted in March 1993. The Board's decision is limited to the issue developed for appellate review. It is unclear from the record, however, whether the appellant intends to raise a claim for entitlement to a permanent and total disability rating for pension purposes. Furthermore, it is unclear from the record whether the appellant intends to raise a claim for entitlement to service connection for right ankle and/or right leg disabilities, as well as entitlement to service connection for a painful scar secondary to his service-connected left ankle fracture. If so, the appellant should contact the RO and allege such claims with specificity, and the RO should then take appropriate action. These potential issues are not intertwined with those before the Board, so the Board may proceed with this appeal. Kellar v. Brown, 6 Vet.App. 157 (1994). CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in essence, that he is entitled to an evaluation in excess of 20 percent for residuals of his left ankle fracture. He argues that he currently suffers from extreme pain around his left ankle which often radiates up the left leg, as well as swelling, discoloration, and occasional numbness in that ankle which are aggravated by slight exertion. He further asserts that such symptomatology interferes with his studies and normal daily activities. It is contended that the recent physical examinations were not complete and that they did not provide a true picture of total impairment as the veteran had rested prior to going to the exam. 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 appellant'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 appellant's claim for entitlement to an increased evaluation for residuals of a left distal fibula fracture with sensory deficits and paresthesia. FINDINGS OF FACT 1. All available, relevant evidence necessary for disposition of the appeal has been obtained by the RO. 2. By a rating decision dated in May 1990, service connection was granted for residuals of the appellant's left distal fibula fracture with a 20 percent disability evaluation assigned under a code contemplating musculoskeletal damage. By a rating decision dated in September 1992, such 20 percent evaluation was continued but the characterization of the disorder was amended to include residual sensory deficits and paresthesia of that left distal fibula fracture. 3. Residuals of the appellant's left ankle fracture are currently manifested by subjective complaints of extreme pain around his left ankle which often radiates up the left leg, as well as swelling, discoloration, and occasional numbness and paresthesia in that ankle which are aggravated by slight exertion. 4. Objective clinical evidence of record indicated the appellant was able to walk heel to toe, and with no gait impairment. Objective range of motion studies for the left ankle were normal, except for moderate limitation upon inversion of that ankle. There was no objective evidence of discoloration, swelling, atrophy, or nonunion of the left ankle upon orthopedic examination. 5. Objective neurological findings included sensory deficits over the dorsum and lateral surfaces of the left foot with pain on palpation. However, there was no evidence of any motor deficits, foot drop, abnormal dorsiflexion, extension or abduction of the left foot, or related anesthesia. 6. More than moderate impairment has not been show with respect to the appellant's service connected residuals of a left distal fibula fracture with sensory deficits and paresthesia. CONCLUSION OF LAW The criteria for an evaluation in excess of 20 percent for residuals of a left distal fibula fracture with sensory deficits and paresthesia have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 3.321, Part 4, 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.40, 4.59, 4.71, 4.123, 4.124, 4.124a, Diagnostic Codes (DC) 5010-5003, 5262, 5271, 8522 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, we find that the appellant's claim is well grounded within the meaning of 38 U.S.C.A. §5107(a) (West 1991), in that he has presented a claim which is plausible. This being so, we must examine the record to determine whether the VA has a further obligation to assist in the development of facts pertinent to her claim. 38 U.S.C.A. §5107(a) (West 1991). The evidentiary record contains complete service medical records, as well as post-service medical records and VA examinations which adequately detail the history of the appellant's in-service ankle fracture, resulting in surgeries and continued treatment. In addition, both orthopedic and neurological VA examinations were conducted in April 1992. The appellant's representative has argued that new orthopedic and neurologic examinations are necessary for an adequate evaluation on appeal, as no objective range of motion studies, expressed in degrees, of the left ankle were provided on the April 1992 orthopedic examination. In addition, he argued both the orthopedic and neurologic examinations were conducted in the absence of any service or post-service medical records, and neither contain an opinion as to the degree of related functional and industrial impairment. Upon review of such examinations, the Board disagrees with the representative's aforementioned contentions for the following reasons. First, on the April 1992 orthopedic examination, the orthopedic examiner stated that objective range of motion studies were normal for plantar extension, eversion, dorsiflexion and plantar flexion, with approximately 50 percent of normal range of inversion. Furthermore, such examiner did offer an opinion as to functional impairment related thereto. Secondly, while it is noted that there were no records, the examination report reflects that the appellant is an excellent historian, and adequately related his complete medical history, including injuries and surgeries, to each examiner prior to the examinations. Moreover, where an increase in the disability rating is at issue, the present level of the disability is the primary concern, See Francisco v. Brown 7 Vet.App. 55 (1994). Furthermore, both examiners conducted thorough examinations, including x-ray, and presented a complete and accurate report of the appellant's current left ankle disability. While the veteran claims the leg is worse at other times, as noted below, there are no objective findings in these or other records that would support an increase in the rating. Of course if the fracture residuals become dramatically worse, the veteran is free to substantiate that with clinic visits, and reopen his claim. Therefore, we do not find that additional examinations are necessary at this time. In addition, the record reflects the appellant reported VA outpatient (OPT) treatment for his left ankle symptomatology beginning around January 1992. No such VA OPT reports are currently associated with the claims folder. During the March 1993 personal hearing, the appellant testified that he had only complained of pain a few times at the VA OPT Clinic at which time he was prescribe Motrin. Furthermore, he testified that he had not received any treatment "in a while." Finally, we have the examination reports from April 1992. The Board's duty to assist the appellant is not "a license for a fishing expedition," nor is it a "one-way street." See Gobber v. Derwinski, 2 Vet.App. 470, 472 (1992) (duty to assist does not extend to determinations of whether "there might be some unspecified information which could possibly support a claim."); Wood v. Derwinski, 1 Vet.App. 190, 193 (1991), reconsideration denied, 1 Vet.App. 406 (1991). As the appellant has not alleged any additional relevancy of the VA OPT records other than subjective complaints of pain, the Board finds no necessity to obtain them, particularly in light of the more recent VA orthopedic and neurologic examinations. Therefore, we are satisfied that all relevant facts have been properly developed and that no useful purpose would be served by remanding the case with instructions to provide additional assistance to the appellant, as the medical reports of record adequately detail the entire history of the appellant's service- connected left ankle and leg disability, particularly as it affects the ordinary conditions of daily life, as required by provisions of 38 C.F.R. §§ 4.1, 4.2, 4.10 and other applicable provisions. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). In adjudicating a well-grounded claim, the Board determines whether (1) the weight of the evidence supports the claim or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim. The appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 3.102 (1994); Gilbert v. Derwinski 1 Vet.App. 49 (1990). Disability evaluations are determined by the application of a schedule of ratings which is based upon an average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1994). Separate diagnostic codes identify the various disabilities. However, rating the same disability under different diagnostic codes is to be avoided. 38 C.F.R. § 4.14 (1994). Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. §§ 3.102, 4.3, 4.7 (1994). 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 appellant, as well as the entire history of the appellant's disability in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). Impairment of the tibia and fibula, manifested by malunion, with marked knee or ankle disability warrants a 30 percent evaluation, while malunion with moderate knee or ankle disability warrants a 20 percent rating. 38 C.F.R. Part 4, DC 5262 (1994). Nonunion of the tibia and fibula of either lower extremity warrants a 40 percent evaluation if there is loose motion requiring a brace. Id. Arthritis, due to trauma, substantiated by X-ray findings is rated as degenerative arthritis. 38 C.F.R. § 4.71a, DC 5010 (1994). Degenerative arthritis will be rated on the basis of the limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. 38 C.F.R. § 4.71a, DC 5003 (1994). When there is marked limitation of motion of the ankle, a 20 percent evaluation may assigned. When there is moderate limitation of motion of the ankle, a 10 percent evaluation may assigned. 38 C.F.R. § 4.71a, DC 5271 (1994). Diagnostic Code 8522 provides a 10 percent evaluation for moderate incomplete paralysis of the superficial peroneal (musculocutaneous) nerve; a 20 percent evaluation requires severe incomplete paralysis; and a 30 percent evaluation requires complete paralysis. 38 C.F.R. § 4.124a DC 8522 (1994). Service medical records indicate the appellant sustained a fracture to his left ankle in May 1988, resulting in an open reduction and internal fixation of that ankle. Subsequently, he developed a nonunion of the left fibula causing the "AO" plate to fracture, which resulted in a second open reduction and internal fixation with bone grafting of the fibula in October 1988. Following continuing complaints of left ankle pain, the appellant underwent a third operation in June 1989 to remove the hardware of the left ankle and excise the neuroma of the superficial peroneal nerve. Following a medical board evaluation, the appellant was discharged due to physical disabilities in February 1990. During a March 1990 VA examination, residuals of the appellant's left ankle fracture were manifested by subjective complaints of pain, swelling, intermittent discoloration and paresthesia of that ankle. Upon examination, the orthopedic examiner noted the appellant could walk on his toes and heels with a normal gait. In addition, the size, contour and musculature of the lower extremities were reported normal, except for some discoloration of the left lower leg. Range of motion studies of the left ankle revealed good dorsi- and plantar flexion, good eversion, but some inversion restriction. Furthermore, the examiner noted intense hyperesthesias over the upper and lower portions of the appellant's scar which were fairly movable, as well as some irregularity of the bony contour of the left fibula with some enlargement over the fibular area. It was noted that there was no gross deformity in the traumatized area. Color photos were associated with the report. By a rating decision dated in May 1990, service connection was granted for residuals of the appellant's left ankle fracture with a 20 percent disability evaluation assigned therewith. That rating was based largely on Code 5262. In May 1992, the appellant reopened said claim and requested secondary service connection for related neurological complications. During an April 1992 VA orthopedic examination, the appellant reported his previous medical history, and complained of severe pain on palpation of the left lower leg, with numbness from the mid-calf down and pain upon prolonged standing and climbing stairs. Upon examination, the orthopedic examiner observed that the appellant ambulated without assistance, and was able to walk on his toes and heels, as well as squat, without difficulty. In addition, he had a normal gait. The examiner indicated extreme pain with palpation over the lateral aspect of the left lower leg with scars present. The scar was about 18 cm. in length. Objective range of motion studies of the left ankle were reported normal for eversion, dorsiflexion and plantar flexion, which approximately 50 percent of normal inversion of that ankle. Furthermore, the appellant's skin was noted warm to the touch, with positive pulses, and not other discoloration or deformity noted. Accompanying x-ray of the left ankle, including the tibia and fibula, revealed the old fracture and bone graft of the fibula with evidence of post-traumatic arthritis. In addition, the appellant underwent an April 1992 neurological examination. At that time, he also reported his entire medical history, with current complaints of numbness, intermittent paresthesia, and pain of the left lower leg, which were exacerbated by cold weather and prolonged standing or walking. There was no complaint of motor loss. Upon examination, the neurological examiner indicated a longitudinal scar with palpable swelling and tenderness to touch at the superior pole. In addition, the examiner noted sensory deficits over the dorsum and lateral surface of the left foot extending to the great toe. However, the examiner noted there was no evidence of any motor deficits, foot drop, or pathologic toe signs. Finally, he indicated there were normal plantar extension; pinprick, and light touch. Position and vibratory sense and cerebellar system were otherwise intact; and gait, station, and Romberg were all negative. He concluded with a diagnosis of status post-operative closed reduction of a fractured tibia with a neuroma, residual sensory deficits and paresthesia. During a March 1993 personal hearing, the appellant testified that he currently suffered from extreme pain around his left ankle which often radiated up the left leg, as well as swelling, discoloration, and occasional numbness in that ankle which were aggravated by slight exertion. He further stated that such symptomatology prevented him from continuing his employment as a carpenter, engaging in any form of physical activity or playing with his children, and interfered with his studies as a student. Furthermore, he stated that he had previously received treatment at the VA outpatient clinic for such symptomatology at which time Motrin was prescribed, but that he currently self-medicated with Tylenol. The appellant's wife testified that in her opinion, the appellant suffered some sort of nerve damage due to the extreme constant pain. After a thorough review of the record, there is simply no objective clinical evidence of record to support an evaluation in excess of 20 percent for residuals of the appellant's left distal fibula fracture with sensory deficits and paresthesia, as the recent clinical evidence of record indicated no more than moderate functional impairment. The appellant can reportedly ambulate without difficulty, with limitation of motion is reportedly normal for all ranges except for inversion. This does not represent moderate limitation of motion. Furthermore, there is no evidence of paralysis, foot drop, or abnormal abduction or anesthesia of the left foot or ankle. Complete paralysis of the superficial peroneal nerve is not shown. The current rating, under Code 8522 contemplates complaints of pain and weakness, as well as sensory changes at the site of the scarring. There is no basis however, to assign an increased rating combining muscle, bone, and nerve impairment in the same area. See 38 C.F.R. §§ 4.14, 4.55. Basically, the current objective clinical evidence demonstrated no change in the appellant's disability since the March 1990 VA examination. While it has been shown that the appellant suffers from pain on palpation, as well as occasional swelling, sensory deficits and paresthesia of the left ankle, the Board concludes that such symptomatology does not provide a basis for assigning a higher rating. The current rating contemplates pain and functional impairment. The record does not show disuse atrophy, significant limitation of motion, impairment of gait, or motor loss such as could form a basis for an increased rating under the appropriate codes. See DC 5010-5003, 5262, 5271, 8522. The appellant's current symptomatology more nearly approximates the criteria indicative of a 20 percent evaluation, and therefore, that evaluation should be continued. 38 C.F.R. § 4.7 (1994). Furthermore, there is no evidence of record of significant or marked interference with daily activities or frequent hospitalizations attributable to the appellant's left ankle and leg disability beyond that contemplated by the regular schedular provisions. The appellant is reportedly a student, is married, and has had no post-service hospitalizations for his service- connected disability. He has stopped being a carpenter. Thus, the Board does not find that this is such an unusual or exceptional disability picture as to render the provisions of the rating schedule inadequate, as to warrant an extraschedular evaluation. 38 C.F.R. § 3.321(b) (West 1994). Since the preponderance of the evidence is against allowance of this issue, the benefit of the doubt doctrine is inapplicable. 38 U.S.C.A. § 5107(b) (West 1991). ORDER Entitlement to an evaluation in excess of 20 percent for residuals of a left distal fibula fracture with sensory deficits and paresthesia is denied. MICHAEL D. LYON 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.