BVA9507443 DOCKET NO. 93-14 245 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to an increased rating for residuals of a left ankle fracture, currently evaluated as 20 percent disabling. 2. Entitlement to service connection for a left knee disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. J. McCafferty, Counsel CONTENTIONS OF APPELLANT ON APPEAL The veteran, who had active service from September 1988 to March 1990, contends that his left ankle disorder is more disabling than the current 20 percent evaluation indicates. The veteran also contends that, as a result of service, he has a left knee disability for which he should be compensated. DECISION OF THE BOARD The Board of Veterans' Appeals (Board), in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claims for an increased rating for residuals of a left ankle fracture and service connection for a left knee disorder. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the instant appeal has been obtained by the regional office (RO). 2. The veteran's residuals of left ankle fracture result in marked limitation of motion, but the ankle is not ankylosed. 3. The veteran entered service with tendonitis and Osgood- Schlatter disease of the knees; subsequent service records show no treatment or findings of a knee disorder. 4. A left knee disorder is not shown to have increased in disability during service, and the post-service findings pertinent to the left knee are unrelated to service. CONCLUSIONS OF LAW 1. An evaluation in excess of 20 percent for residuals of a left ankle fracture is not warranted. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 3.321, Part 4, Code 5271 (1994). 2. A left knee disorder was neither incurred in nor aggravated by service. 38 U.S.C.A. § 1131 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board finds initially that the veteran's claims are "well grounded;" that is, they are not inherently implausible. The record shows that the facts relevant to the issues on appeal have been properly developed and that the statutory obligation of the Department of Veterans Affairs (VA) to assist the veteran in the development of his claims has been satisfied. 38 U.S.C.A. § 5107(a) (West 1991). I. The veteran seeks an increased rating for his residuals of a left ankle fracture. Service medical records show that the veteran suffered an external rotation injury to his left ankle in October 1989. X-ray studies of the left lower extremity revealed a subluxed talus. A proximal fibular fracture was also noted to be present about 4 centimeters distal to the proximal end of the bone. A closed reduction of the ankle fracture was performed and a cast was applied. X-ray studies of the left ankle in the cast revealed persistent subluxation of the talus laterally and this was determined to be an unacceptable reduction. The veteran was advised that an open reduction of the fracture would be necessary to avoid post-traumatic arthritis. The veteran declined surgical intervention and he was placed in a well-molded, long leg cast. The veteran was discharged from service due to the ankle injury in March 1990. On initial VA examination in January 1991, the veteran complained of swelling in his left ankle with associated moderate pain. He also reported limited range of motion. Examination of the left ankle revealed no swelling, deformity, tenderness or crepitus. Range of motion was reported as dorsiflexion 0 to 10 degrees; plantar flexion 0 to 20 degrees; eversion to 5 degrees; and inversion to 5 degrees. It was noted that pain was present on these movements. The veteran was reported to walk with a left limp and to use a cane for balance. He was unable to walk on his toes, heels or squat. X-ray studies of the left ankle reported smoothly marginated bone ossicles, anterior and posterior to the talus consistent with an old healed injury. The diagnosis was residuals, left ankle due to old injury with instability. VA outpatient treatment records of August 1991 show that the veteran complained of left lower extremity pain and edema of 2 weeks' duration. A history of an injury resulting in an ankle fracture in October 1989 with chronic pain since that time was noted. Physical examination revealed no swelling of the lower extremity, nor was there effusion or lateral instability. The left ankle had decreased flexion and extension. The assessment was status post ankle fracture with degenerative joint disease. It was recommended that the veteran take medication as directed, avoid jumping on the ankle, and avoid stairs. The veteran was treated in September 1991 for degenerative changes of the ankle. The veteran was re-examined by the VA in August 1992. He complained of pain with weight bearing, activity, and ankle motion. He reported that his pain was anterior and lateral. He used a cane to walk long distances secondary to the pain and walked with a limp. On examination, dorsiflexion was reported to be neutral and this caused pain anteriorly. The veteran had plantar flexion to 15 degrees and had limited subtalar motion. He was tender anteriorly, as well as laterally over the anterior tibial fibular ligament. He was said to be neurovascularly intact. Earlier X-ray studies were reviewed and were said to show post-traumatic ossicles on the anterior and posterior talus as well as a laterally tilted mortis. The veteran's ankle was said to be 1 to 2 millimeters wider medially than laterally. There was some questionable joint space narrowing. The pertinent assessment was chronic left ankle pain, status post left ankle fracture with what appeared to be a malreduced mortis, with questionable early degenerative joint disease. VA outpatient treatment records of August 1993 show that the veteran complained of chronic left ankle pain since 1989 and that the symptoms had worsened in the preceding 3 days. Recent trauma was denied. Physical examination revealed full range of motion of the left ankle, without edema; motor and sensory testing was intact. There was slight anterior tenderness. The diagnostic impression was left ankle pain. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991). Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4 (1994). Diagnostic Codes 5270 to 5274 are used for rating ankle disabilities. Under these codes, and in the absence of ankylosis, the maximum rating is 20 percent. The veteran is currently in receipt of a 20 percent rating under Diagnostic Code 5271 based on marked limitation of motion of the ankle. In order for a higher rating than 20 percent to be awarded, ankylosis would have to be demonstrated. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or of all the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40 (1994). Degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint involved. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (1994). It has neither been contended by the veteran, nor is it shown on the two VA examinations that the veteran's left ankle is ankylosed. While the veteran has marked limitation of motion with accompanying pain, he has some movement thus negating a finding of ankylosis. While it is clear that the veteran does not meet the criteria for a higher rating under the above-cited codes, consideration has also been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they were raised by the veteran as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). In particular, the evidence discussed above does not suggest that the residuals of fracture of the left ankle present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards so as to warrant an assignment of an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1). For example, the disability did not recently require frequent periods of hospitalization, nor does it present marked interference with employment. The average impairment of earning capacity has been contemplated in the current maximum evaluation under Diagnostic Code 5271. II. The veteran seeks service connection for a left knee disorder. The veteran contends that he currently has a left knee disorder which is of service origin. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131 (West 1991). A preexisting injury or disease will be considered to have been aggravated by active service when there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306(a) (1994). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1994). A review of the service medical records shows that, on entrance into service, bilateral knee tendinitis was shown on physical examination. It was noted that a February 1986 letter from a private doctor indicated that the veteran had Osgood-Schlatter disease, for which the veteran was started on conservative treatment and medication. The diagnoses listed on the enlistment examination included chronic tendonitis of both knees and symptomatic Osgood-Schlatter disease of the knees. A review of the subsequent service medical records does not show any indication of any left knee complaints or treatment. When the veteran was treated for his left ankle in December 1989, full range of motion of the left knee was demonstrated. Thus, the veteran's service medical records are negative as to any complaints or treatment with respect to any left knee disorder. As noted above, in order for service connection to be granted, the incurrence or aggravation of a left knee disorder would have to be demonstrated during service. The absence of any complaints, or clinical or X-ray findings during service provides no basis for a conclusion that a left knee disorder was incurred in or that a preexisting disability was increased by service. Subsequent to service, the veteran was afforded a VA examination in January 1991, following which the diagnosis was chronic tendonitis of the left knee. This finding is the same as that shown on the enlistment examination, and there is no indication by the examiner that the diagnosis is related to service. VA outpatient treatment records of 1991 show that the veteran was treated for patellofemoral pain syndrome. The veteran was subsequently afforded a VA examination in August 1992, and the pertinent assessment was left knee with anterior knee pain, questionable patellofemoral syndrome, in light of a markedly tilted patella. Significantly, there is no medical opinion linking the post-service findings to service. The veteran's contentions have been considered, but the absence of any supporting medical data precludes a finding that the veteran's left knee disorder is of service origin. ORDER An increased rating for residuals of a left ankle fracture is denied. Service connection for a left knee disorder is denied. M. SABULSKY 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.