BVA9506207 DOCKET NO. 92-53 699 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to an increased disability evaluation for residuals of a fracture of the left distal fibula currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant INTRODUCTION This matter came initially before the Board of Veterans Appeals (Board) on appeal from a rating decision of June 1990, denying an increased (compensable) evaluation for residuals of a fracture of the left distal fibula. The case was remanded by the Board for further development in July 1992. In October 1992, the Louisville, Kentucky Regional Office (RO) of the Department of Veteran's Affairs (VA) raised the rating for residuals of fracture of the distal left fibula to 10 percent, effective March 1990. The veteran continued his appeal for a higher rating. The following matters were also clarified following the July 1992 remand: (a) the veteran is in fact being represented by The American Legion; (b) the veteran is not appealing a December 1991 statement of the case which held that he is incompetent to manage his financial affairs (c) that the rating action of December 1994 reflects that the veteran has been granted entitlement to special monthly pension benefits based on the need for regular aid and attendance effective in May 1989; (d) other issues involving secondary service connection for residuals of rib injury, service connection for a right lower extremity disorder, and a claim for 1151 benefits have not been developed or certified for appellate consideration. CONTENTIONS OF APPELLANT ON APPEAL It is contended that the service-connected residuals of fracture of the left distal tibia warrant a 30 percent rating under Diagnostic Code 5262. 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 files. 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 evidence is against the claim for a rating in excess of 10 percent for residuals of fracture of the left distal fibula. FINDING OF FACT The service-connected residuals of fracture of the left distal fibula do not result in definite malunion of the fibula and do not produce more than a moderate limitation of motion of the left ankle. CONCLUSION OF LAW A rating in excess of the 10 percent rating currently in effect for residuals of fracture of the left distal fibula is not warranted. 38 U.S.C.A. § § 5107(a), 1155 (West 1991); 38 C.F.R. § § 3.321(b) Part 4, 4.40, 4.45, Codes 5262, 5271 (1994). REASONS AND BASES FOR FINDING AND CONCLUSION There was a simple fracture of the left distal fibula in service. No surgery was ever done at the fracture site. On VA examination in October 1984, there was a full range of left ankle motion. The fracture was considered healed with essentially no residuals. An X-ray of the left ankle was considered normal. The voluminous clinical evidence of record from the date of this examination until the time of the July 1992 remand, deals with treatment of disorders not at issue in this appeal. In March 1986, VA outpatient treatment records did reveal that the left ankle was non tender and exhibited a full range of passive motion. On VA examination in August 1992, the veteran was in a wheelchair. Earlier clinical records reveal peripheral neuropathy of both lower extremities. The veteran did complain at the time of the August 1992 examination of pain in the left ankle and foot. Examination of the left ankle revealed no deformity, discoloration, edema or tenderness. Dorsiflexion was to 10 degrees and plantar flexion, was to 30 degrees. There was no instability of the ankle. An X-ray of the left leg revealed some irregularity at the fracture site. The parts were in excellent position. There were no other osseous or articular abnormalities. At the January 1993 RO hearing, the veteran testified that he took medication for left ankle pain. He stated that his left ankle gives way on him when he experiences pain in both legs. His testimony considered in conjunction with earlier clinical records indicates that most of the impairment in both lower extremities is due to bilateral peripheral neuropathy. A full range of ankle dorsiflexion is from 0 degrees to 20 degrees. A full range of ankle plantar flexion is from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II (1994). Residuals of fracture of the distal fibula warrant a 10 percent rating when there is malunion with slight ankle disability. In the absence of malunion a 10 percent rating may be assigned when there is moderate limitation of ankle motion. To warrant a 20 percent rating there must be malunion with moderate ankle disability or marked limitation of ankle motion. 38 C.F.R. Part 4, Codes 5262, 5271. In this case there is no definite evidence of malunion at the fracture site. The fracture is described on X-ray as being in excellent position. Some irregularity at the fracture site was described. On the August 1992 VA examination dorsiflexion of the left ankle was 50 percent of full and plantar flexion was 66 2/3 percent of full. A 10 percent rating is warranted under Code 5271. A 20 percent rating is not warranted under Code 5262 because there is no malunion at the fracture site and is not warranted under Code 5271 because there is no marked limitation of ankle motion. Inasmuch as the residuals of fracture of the left distal fibula do not produce marked interference with employment or result in frequent periods of hospitalization, there is no basis for assignment of a higher rating on an extraschedular basis. 38 C.F.R. 3.321(b). ORDER An increased rating for residuals of fracture of the left distal fibula is denied. BRUCE E. HYMAN 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.