BVA9501526 DOCKET NO. 93-07 505 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for the residuals of a fractured left os calcis. 2. Entitlement to an evaluation in excess of 10 percent for traumatic arthritis of the right os calcis. 3. Entitlement to service connection for a bowel disorder as secondary to service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD J. Johnston, Associate Counsel INTRODUCTION The veteran had active service from June 1960 to May 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 1991 rating decision of the Houston, Texas, Department of Veterans Affairs (VA) Regional Office (RO). After a personal hearing was conducted at the RO in December 1991, the hearing officer confirmed and continued the previously assigned 10 percent evaluations for the veteran's bilateral heel disorders, and denied service connection for a bowel disorder as secondary to service-connected disability. However, the hearing officer granted service connection for bilateral knee chondromalacia and degenerative arthritis of the lumbar spine as secondary to the veteran's service-connected bilateral heel disorder. The veteran was notified of this action, and did not thereafter submit a notice of disagreement with the zero percent ratings assigned. Additionally, during the pendency of the present appeal, the veteran has contended that his service-connected disabilities have made it impossible for him to continue in any employment that requires standing for prolonged periods. To the extent that these assertions constitute a claim for individual unemployability based upon service-connected disabilities, the issue is referred to the RO for appropriate action, as it is not inextricably intertwined with the issues now before the Board. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO erred in denying increased evaluations for his bilateral heel disorder, and in denying service connection for a bowel disorder as secondary to service- connected disability. He contends that his left heel disability, including pain, limitation of motion, and loss of mobility, has increased in severity. He also contends that a bowel disorder is causally related to nerve impingement in the back, which, in turn, is causally related to his service-connected bilateral heel disorder. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of all evidence and material of record in the veteran's claims folder, and for the following reasons and bases, it is the decision of the Board that a preponderance of the evidence is in favor of a 20 percent evaluation for the residuals of a fractured left os calcis, and is against an evaluation in excess of 10 percent for traumatic arthritis of the right os calcis. The Board also finds that the veteran's claim for service connection for a bowel disorder as secondary to service-connected disability is not well grounded. FINDINGS OF FACT 1. All relevant evidence necessary for the present disposition of the appeal has been obtained. 2. The residuals of a fractured right os calcis are manifested by mild arthritic changes with no more than moderate limitation of motion. 3. The residuals of a fractured left os calcis are manifested by degenerative changes resulting in pain and marked limitation of ankle motion. 4. There is no medical evidence showing that a bowel disorder is causally related to any incident of service or to any service- connected disability. 5. The service connected disabilities at issue do not produce an exceptional or unusual disability picture with such related factors as the need for frequent hospitalization or marked interference with employment. CONCLUSIONS OF LAW 1. The criteria for a 20 percent evaluation for the residuals of a fractured left os calcis have been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.20, 4.40, 4.59, 4.71(a), Diagnostic Code 5010-5271 (1993). 2. The criteria for an evaluation in excess of 10 percent for traumatic arthritis of the right os calcis have not been met. 38 U.S.C.A. §§ 1155, 5107(a); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.20, 4.40, 4.59, 4.71(a), Diagnostic Code 5010-5271. 3. The veteran's claim for service connection for a bowel disorder as secondary to service-connected disability is not well grounded. 38 U.S.C.A. § 5107(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's claims for increased evaluations for his bilateral heel disorder are well grounded within the meaning of 38 U.S.C.A. § 5107(a). All of the facts in regard to these claims have been developed, and no further assistance is necessary to comply with the duty to assist required by law. Id. However, the claim for service connection for a bowel disorder is not well grounded. Except when otherwise provided by the Secretary in accordance with the provisions of this title, a person who submits a claim for benefits under a law administered by the Secretary, shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a). The Court of Veterans Appeals (Court) has provided that a well-grounded claim is a plausible claim; one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive, but only possible to satisfy the initial burden of 38 U.S.C.A. § 7104(a). Gilbert v. Derwinski, 1 Vet.App. 49 (1990); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Although the claim need not be conclusive, it must be accompanied by evidence. The VA benefits system requires more than just an allegation; a claimant must submit supporting evidence, and the evidence must justify a belief by a fair and impartial individual that the claim is plausible. Tirpak v. Derwinski, 2 Vet.App. 609 (1992). The veteran's obligation to present a well-grounded or plausible claim requires that evidence of medical causality or other evidence in support of the claim be presented. Grivois v. Brown, 6 Vet.App. 136 (1994). Where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that a claim is "plausible" or "possible" is required. See Murphy v. Derwinski, 1 Vet.App. 78 (1990). A claimant cannot meet this burden imposed by § 5107(a) merely by presenting lay testimony, because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Consequently, lay assertions of medical causation cannot constitute sufficient evidence to render a claim well grounded under § 5107(a); if no cognizable evidence is submitted to support a claim, the claim cannot be well grounded. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). See also Moray v. Brown, 5 Vet.App. 211 (1993). In the present case, there is simply no medical evidence supporting the veteran's contention that he has a bowel disorder secondary to any of his service-connected disabilities. Specifically, in his substantive appeal and during testimony at the personal hearing at the RO, the veteran has indicated that he has a bowel disorder which he believes is secondary to a nerve impingement of the back, which in turn is secondary to his service-connected heel disability. While the hearing officer granted service connection for degenerative arthritis of the lumbar spine as secondary to the service-connected heel disability, there is no clinical evidence or opinion of record showing or tending to show that the veteran has a bowel disorder which is secondary to lumbar arthritis or any other service- connected disability. Although the veteran testified that a VA clinician (apparently a physician's assistant) told him that this was a possibility, no such opinion is contained in the clinical evidence on file. The veteran, himself, is not shown to be competent to express an opinion on medical causation. The report of a VA examination in January 1992 indicates that the veteran's symptoms of fecal incontinence could be related to some dysfunction of the rectal sphincter, but the examiner did not see any relationship to his service-connected disabilities. An additional surgical examination resulted in a negative digital rectal examination, except for prostate enlargement. Again, no bowel disability was confirmed, and none was related to service-connected disabilities. Accordingly, because the veteran has not submitted medical evidence in support of his claim of secondary service connection, the Board finds that he has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim is well grounded. The Board notes that this decision is to the appellant's benefit since, if he should decide to file another claim in the future, he will not be burdened with having to submit new and material evidence; he need only present a well- grounded claim. McGuinness v. Brown, 4 Vet.App. 239, 244 (1993). In February 1958, during training at the United States Military Academy, the veteran fractured both os calces after jumping 17 feet from a roof into soft snow, striking his heels on a concrete walk (no line of duty determination is of record). Treatment consisted of closed reductions with skeletal traction, molding of the fractures with Boehler compression clamps, and both lower extremities were supported in boot casts, which were removed in May 1958. Following physiotherapy, the veteran was discharged to a duty status in June 1958, where he was shown to have gradually increased his physical activities not requiring excessive running and jumping. In October 1959, gait was normal without a perceptible limp, but there was a loss of vertical height of the left heel. The left heel and ankle were the most symptomatic, with pain and aching, and there was considerable loss of subtalar motion of the left foot. The right foot was relatively normal in structure and appearance. X-ray examination showed the right os calcis to present an almost normal appearance, but the left was shortened and increased in thickness. In December 1960, after seven months' active duty, the veteran reported no difficulty with either foot during an orthopedic examination. He reported no pain or limitation of physical activity. X-ray examination of the right os calcis was essentially negative, but X-rays of the left os calcis showed some residual arthritic changes and a loss in length and height. After service, in December 1964, the RO granted service connection for the residuals of a fractured left os calcis and assigned a 10 percent evaluation, with a notation that the left foot showed a 50 percent loss of range of motion in the subastragalar joint, with moderate crepitation and mild pain on extremes of motion. The RO also granted service connection for traumatic arthritis of the right os calcis as the residuals of a healed fracture and assigned a 10 percent evaluation based upon findings of mild pain and minimal crepitation on motion in the subastragalar joint of the right foot. During a VA orthopedic examination in August 1966, the veteran complained of pain in both heels, worse on the left, upon prolonged standing and walking. Physical examination revealed a normal gait. The right foot had no deformities, and had a normal range of motion, although there was slight crepitance on motion of the subastragalar joint. The left foot revealed about 50 percent limitation of motion in the subastragalar joint with crepitation on motion, and the veteran complained of pain on inversion and eversion of the left heel. A January 1991 VA orthopedic examination revealed that the left os calcis appeared shortened and bulbous in nature, and range of ankle motion was from 15 degrees of dorsiflexion to 35 degrees of plantar flexion on both the right and left. Subtalar motion on the left was 0 degrees, and on the right was 5 degrees. Midfoot motion in the frontal plane was approximately 15 degrees bilaterally. There was marked pain with stressing of the subtalar joint on the left and mild pain on the right. X-ray examination of the left foot demonstrated marked subtalar arthritis with nearly complete joint space obliteration and flattening of the posterior facet of the os calcis. There were degenerative changes noted at the calcaneal cuboid joint as well. X-ray examination of the right foot showed similar but less marked changes. The diagnosis was fracture, os calcis, bilateral, left greater than right, with subsequent post- traumatic arthritis changes of the subtalar joint, moderately to markedly symptomatic on the left and mildly to moderately symptomatic on the right. In December 1991, the veteran testified at a personal hearing at the RO. He recounted the history of his injuries, and stated that they had cause him to have a "sliding-step" gait. He said the left foot was extremely painful and that he could stand for no longer than 10 minutes before having to relieve the pressure on the foot. He indicated that he wore a type of support in his shoes, and that he lost his balance easily while trying to dress. He said he did not routinely fall. He said he occasionally felt a grating in his left foot, and that he had occasional swelling above the os calcis. He stated that he had been told that a left ankle fusion might become necessary in the future. He indicated it was often necessary to reheel his shoes because they wore down due to his altered gait. He indicated that his left ankle had more recently become increasingly weak. In January 1992, the veteran was provided with VA examinations. Initial examination revealed his gait to be independent. Motor and sensory examinations were normal. Deep tendon reflexes were present bilaterally and symmetrical, and there were no abnormal reflexes. Orthopedic examination of the left ankle showed moderate tenderness to palpation in the subtalar joint. Range of motion of the left ankle was 5 degrees' dorsiflexion and 30 degrees' plantar flexion with 2 degrees of inversion and eversion. The right ankle was nontender to palpation with 10 degrees' inversion, 5 degrees' eversion, 10 degrees' dorsiflexion, and 35 degrees' plantar flexion. There was no gross deformity of either ankle. There was negative anterior drawer or instability in the medial and lateral talar shift of both ankles. X-ray examinations of the feet and ankles showed joint space narrowing and degenerative arthritis of the subtalar joint bilaterally, with the left side greater than the right. The 1945 Schedule for Rating Disabilities (Schedule) will be used for evaluating the degree of disability in claims for disability compensation. The provisions of the rating Schedule represent the average impairment in earning capacity in civil occupations resulting from those disabilities, as far as practicably can be determined. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. When a veteran has been diagnosed as having a specific condition and the disorder is not listed in the Schedule for Rating Disabilities, the disorder will be evaluated by analogy to a closely related disease or injury in which not only the functions affected but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. 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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 38 C.F.R. § 4.40. With any form of arthritis, painful motion is an important factor of disability, and it is the intention of the Schedule to recognize actually painful joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Arthritis due to trauma, substantiated by X-ray findings, will be rated as degenerative arthritis. 38 C.F.R. § 4.71(a), Diagnostic Code 5010. Degenerative arthritis, established by X-ray findings, will be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate code, a rating of 10 percent is warranted for each major joint or group of minor joints affected by limitation of motion. 38 C.F.R. § 4.71(a), Diagnostic Code 5003 (1993). The veteran's left ankle disability has been evaluated as ankylosis of the subastragalar or tarsal joint (under Diagnostic Code 5272) since it was initially service connected. Ankylosis of the tarsal joint in a good weight-bearing position warrants a 10 percent evaluation. Ankylosis in a poor weight-bearing position warrants a 20 percent evaluation. 38 C.F.R. § 4.71(a), Diagnostic Code 5272 (1993). Moderate limitation of ankle motion warrants a 10 percent evaluation. Marked limitation of ankle motion warrants a 20 percent evaluation. 38 C.F.R. § 4.71(a), Diagnostic Code 5271 (1993). Normal range of ankle motion is from 20 degrees of dorsiflexion to 45 degrees of plantar flexion. 38 C.F.R. § 4.71 (plate II). Malunion of the os calcis or astragalus with moderate deformity warrants a 10 percent evaluation. Marked deformity warrants a 20 percent evaluation. 38 C.F.R. § 4.71(a), Diagnostic Code 5273 (1993). Other injuries of the foot warrant a 10 percent evaluation if moderate, a 20 percent rating if moderately severe, and a 30 percent evaluation if severe. Actual loss of use of the foot warrants a 40 percent evaluation. 38 C.F.R. § 4.71(a), Diagnostic Code 5284 (1993). In regard to the right heel disability, the evidence of record indicates that an evaluation in excess of 10 percent for traumatic arthritis of the right os calcis is not warranted. The right foot and ankle have historically been less severely impaired than the left. Range of motion of 10 degrees' dorsiflexion, 35 degrees' plantar flexion, 10 degrees' inversion, and 5 degrees' eversion collectively constitutes no more than moderate limitation of motion, inasmuch as there is 50 percent of normal dorsiflexion and more than two thirds of normal plantar flexion. The right foot is shown to have degenerative changes with no more than moderate limitation of motion warranting no more than the presently assigned 10 percent evaluation. 38 C.F.R. § 4.71(a), Diagnostic Code 5010-5003-5271. No ankylosis or deformity is shown, and the overall disability cannot be characterized as more than moderate. Consequently, if it were to be rated by analogy, as a foot injury under Diagnostic Code 5282, a 10 percent rating would be proper. To warrant a higher evaluation, the right heel disability would have to rise to the level of moderately severe or limitation of motion would have to be marked. Those criteria have not been met or approximated. The evidence of record regarding the veteran's left heel disability presents a different picture. The post-traumatic arthritic changes of the subtalar joint are shown to be moderately to markedly symptomatic, including objective demonstration of pain on palpation and on range of motion during walking and standing. The left ankle has dorsiflexion of 5 degrees of a possible 20 degrees, and plantar flexion of 30 degrees of a possible 45 degrees, with eversion and inversion of not more than 2 degrees. These findings approximate marked limitation of ankle motion, warranting a 20 percent rating under 38 C.F.R. § 4.71(a), Diagnostic Code 5271. In this regard, we find that rating the disability on the basis of limitation of ankle motion is more appropriate than rating it as ankylosis of the subastragalar or tarsal joint, which has been done by the RO in the past. Although the joint lines of the left foot are shown to be in close proximity, no left ankle or foot ankylosis is actually shown, nor is any deformity shown. Since the veteran does not have ankylosis of the left ankle he would be more appropriately rated under other criteria, such as limitation of imitation of motion, the specific criteria for rating arthritis of a joint. As discussed above, the limitation of left ankle motion is considered to be of marked degree, thereby warranting a 20 percent rating on that basis. That is the maximum schedular rating provided for limitation of ankle motion. The disability also could be rated, by analogy, as a "foot injury" under Diagnostic Code 5282; however, no more than a 20 percent rating would be warranted. That is the schedular rating provided for moderately severe foot injuries. A 30 percent rating requires a severe foot injury. The veteran has symptomatic post-traumatic arthritic changes of the subtalar joint of the left foot, together with painful motion, difficulty ambulating, and objectively demonstrated limitation of left ankle motion. He complains that he can not stand on his foot for long periods. However, the ankle is not ankylosed and in early 1991 it was described as only moderately to markedly symptomatic. On VA examination in January 1992, motor and sensory examination was normal, deep tendon reflexes were present and equal, and the examiner found no gross deformity of either ankle. There was no appreciable instability reported. Degenerative changes and joint space narrowing were shown radiographically. The various normal findings and other results of the last examination do not approximate a severe foot injury. Accordingly, a rating in excess of 20 percent is not warranted under Diagnostic Code 5284. Finally, if the disability were rated under Diagnostic Code 5273 (malunion of the os calcis) the maximum schedular rating assignable would be 20 percent, for marked deformity. We have also considered whether the veteran's bilateral heel disability warrants an extraschedular evaluation in accordance with the provisions of 38 C.F.R. § 3.321(b)(1). The right heel disorder does not present an unusual disability picture. It has not required hospitalization in many years and is not shown to cause marked interference with employment. Although the left ankle is more disabled, the increased schedular rating compensates for the additional disability. The evidence does not show frequent hospitalization for the disability. Currently, the veteran is unemployed and he appears to have raised a claim for a total rating based on individual unemployability. That issue is not before the Board, however, and in deciding it, the effect of all of his service-connected disabilities on his employability will have to be considered. The veteran is now looking for a job. He has worked as a mechanical engineer and last as a salesman. While he states that his standing is greatly limited, particularly because of his left ankle disability, that disability would not cause marked interference with sales, engineering or other positions that do not require appreciable standing. Accordingly, the Board concludes that neither heel disability presents an unusual disability picture warranting an increased rating on an extraschedular basis. ORDER The claim for service connection for a bowel disorder as secondary to service-connected disability is dismissed as not well grounded. Entitlement to an evaluation in excess of 10 percent for traumatic arthritis of the right os calcis is denied. An evaluation of 20 percent for the residuals of a fractured left os calcis is granted, subject to regulations controlling the payment of monetary benefits. JANE E. SHARP 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.