BVA9502396 DOCKET NO. 93-11 130 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for a right ankle sprain. 2. Entitlement to an increased (compensable) evaluation for residuals, fracture of the distal shaft, right fibula. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Alice A. Booher, Counsel INTRODUCTION The veteran had active service from April 1943 to August 1945. This appeal is from the rating action by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, in August 1992. The veteran also has service connection for bilateral trench foot, for which a 10 percent rating is currently assigned. An increased rating for that disability was denied by a rating action of February 1992. The veteran initiated but did not perfect an appeal of that action. CONTENTIONS OF APPELLANT ON APPEAL The veteran argues that the fracture to his right distal fibula in service resulted in weakness and instability which caused recurrent ankle sprains over the years, including one which happened when he twisted his ankle at home in 1992. The veteran avers that the current pain, any limitation of motion and other symptoms in his right ankle are due to the service-connected fracture and should be accordingly compensated. 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 veteran's claim for service connection for a right ankle sprain is not well grounded and that the preponderance of the evidence is against his claim for an increased (compensable) evaluation for residuals, fracture, distal shaft of the right fibula. FINDINGS OF FACT 1. There is sufficient evidence of record to make an equitable disposition of the issues on appeal. 2. There is no medical evidence or opinion that service- connected residuals of a fracture of the right distal fibula are the cause of claimed recurrent right ankle sprains with weakness. 3. The veteran does not have bony malunion of the right distal fibula with slight ankle disability; the distal fibular fracture healed decades ago and the ankle joint is radiographically normal. 4. The veteran's residuals of a right distal fibula fracture do not present an unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization. CONCLUSIONS OF LAW 1. The veteran's claim for service connection a right ankle sprain is not well grounded. 38 U.S.C.A. § 5107 (West 1991). 2. An increased (compensable) evaluation for residuals, fracture, distal shaft of the right fibula, is not warranted. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 3.321(b)(1), Part 4, §§ 4.7, 4.20, 4.31, Diagnostic Code 5299-5262 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Pursuant to 38 U.S.C.A. § 5107(a), 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. The United States Court of Veterans Appeals (Court) has held that a well-grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). In Boeck v. Brown, 6 Vet.App. 14 (1993), the Court held that A(n appellant) claiming entitlement to VA benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. See 38 U.S.C.A. § 5107, and see Tirpak v. Derwinski, 2 Vet. App. 609, 610-11(1992). If a claim is not well grounded, the Board does not have jurisdiction to adjudicate that claim. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105(d)(5). The evidence in this case includes the veteran's service medical records which show that in August 1943, while on authorized pass, he was accidentally struck by a "hit and run" driver when he tried to cross a street. He was admitted with complaints of pain and swelling in the right ankle; X-rays showed a simple transverse fracture in the lateral malleolus of the fibula with minimal displacement. He underwent closed reduction of the fracture and a cast was applied. He was returned to full duty in March 1944 without noted subsequent residual impairment. Since then, on VA examinations or evaluations in 1947, 1961, and 1968, there were no signs of residuals of the fibular fracture, and the veteran did not complain of recurrent right ankle sprain or instability. X-rays in 1961 and 1968 showed no residuals of the fracture. L. Borbely, M.D., noted in 1983 that the veteran had a history of three right ankle sprains in the past and considerable ankle weakness; however, it was not indicated that these were related to his in-service fracture. On VA examination in August 1983, the veteran reported giving way of his right ankle several times during the past year, and ankle pain and swelling. X-ray studies showed no bony or soft tissue abnormalities of the right ankle. On orthopedic examination no deformity, tenderness or swelling was found. The examiner did not note any right ankle instability. At the time of a personal hearing at the RO in 1983, a VA physician observed the veteran's feet and noted a change in the contour over the right lateral malleolus, with 5 degrees less right ankle motion than left, but stated that the ligaments appeared to be intact and the joint stable. In the veteran's file is a handwritten VA examination report apparently prepared in 1988. It does not bear the name of the examinee and does not appear to refer to the veteran since it mentions a gunshot wound of the right thigh and the use of a foot drop brace since service. This history is not consistent with the veteran's and the record apparently pertains to someone else. There is no indication that the regional office relied upon it in any rating action; accordingly it's presence in the veteran's file is harmless error. In 1989, the veteran was examined by the VA, at which time he was noted to have a history of a distal fibular fracture during service, and recurrent right ankle sprains. Examination showed full range of joint motion, excellent strength of eversion/inversion, no joint laxity and no tenderness or edema. X-rays reportedly showed no bony pathology. The diagnosis was history of distal fibular fracture with no detectable residuals. A VA evaluation in 1990 for residuals of trench foot showed no residuals of the fibular fracture. Outpatient visits in 1990 and 1991 were unrelated to the fracture residuals and included dermatological complaints and some of the symptoms for which the veteran has been compensated on the basis that they are residuals of his trench foot. There was one notation that he had limited dorsiflexion of the ankle when the knee was extended. In April 1992, the veteran was seen after having experienced an inversion sprain of his right ankle. He said he had been walking and turned his ankle. The associated clinical records make no reference to the fibular fracture, to instability of the ankle or to any relationship between the sprain and the old healed fracture. On examination, there was swelling and tenderness in the ankle. X-rays showed no evidence of fracture. On the most recent VA examination, in July 1992, the veteran's history of an ankle fracture in service was noted. The veteran stated that since then he had had ankle weakness with numerous ankle sprains. On examination, his gait was noted to be "really unremarkable," even though he was "half" using crutches, apparently because of his last ankle sprain. Dorsiflexion of the right ankle was to 8 degrees and plantar flexion was to 35 degrees. The examiner found that the veteran currently manifested some evidence of increased mobility with inversion of the ankle without changes on eversion. The diagnoses were chronic ankle sprain with some mild instability, and history of frozen feet. X-ray studies to assess residuals of the right distal fibular fracture showed no osseous or articular abnormalities. Service Connection In regard to the claim for service connection, the law and regulations provide that service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active duty or active duty for training or injury while performing inactive duty for training. 38 U.S.C.A. § 1110. Service connection may 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). Service connection may also be granted for disease or injury which is the result of service- connected disability. 38 C.F.R. § 3.310. The record does not show and it is not claimed that the veteran experienced right ankle sprains during service. Rather, he contends that post-service sprains are the result of his service- connected fibular fracture sustained 40 years before the first mention of ankle sprains and shown to have healed well without residual disability. The earliest evidence of any ankle sprains is in 1983, when Dr. Borbely stated that the veteran had a history of three sprains and considerable ankle "weakness." Dr. Borbely, however, did not even mention the old fibular fracture. On a subsequent 1983 VA examination, no ankle abnormalities were noted clinically or radiographically and the examiner did not report any instability of the ankle. The ankle joint was noted to be stable and intact when observed by a VA physician at a personal hearing in 1983. Once again, in 1989, the veteran's right ankle was found to be essentially normal on a VA examination and the examiner stated that there were no detectable residuals of the fibular fracture. The ankle sprain that apparently gave rise to the veteran's claim for service connection occurred in early 1992 when, according to the record, he turned his ankle while walking. It was not until after that sprain that evidence of increased ankle mobility was found (on VA examination in July 1992). At that time, the examiner associated the instability with the ankle sprain and did not even diagnose any residuals of the old fibular fracture. Only the veteran has associated the post-service ankle sprains with the service connected disability, but he is not trained in medicine, and as a lay person, is not qualified to determine medical causation. See Espiritu v. Derwinski, 2 Vet.App. 492 (1992). There is no medical evidence or opinion establishing that the ankle sprains experienced long after service were the proximate result of the veteran's well healed, remote fibular fracture. Accordingly, the claim for service connection on a secondary basis is not well grounded. 38 U.S.C.A. § 5107(a). Increased Evaluation In claims for increased disability ratings, the Court has found that, within the confines of certain parameters, the allegation by a veteran that he has increased disability tends to establish a well-grounded claim. Proscelle v. Derwinski, 2 Vet.App. 629 (1992). In general, disability evaluations are determined by the application of a schedule of earnings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. When an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origins. 38 C.F.R. § 4.20. When 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. Where the minimum schedular evaluation requires residuals and the schedule does not provide for a zero percent evaluation, a zero percent evaluation will be assigned when the required residuals are not shown. 38 C.F.R. § 4.31. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In exceptional cases where the schedular evaluations are found to be inadequate, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability may be approved provided the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321 (b)(1). The Board has also considered all of the facets of the disorder including alternative provisions that may be applicable pursuant to Schafrath v. Derwinski, 1 Vet.App. 589 (1991). The Schedule for Rating Disabilities provides that impairment of the tibia and fibula, when there is malunion with slight knee or ankle disability, warrants a 10 percent rating; when moderate knee or ankle disability is present, 20 percent is assignable; and with marked knee or ankle disability, 30 percent is assignable. When there is nonunion with loose motion, requiring a brace, a 40 percent rating is assignable. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4, Diagnostic Code 5262. This is the diagnostic code under which the RO has rated the disability and it is the most appropriate. The record shows that the veteran's right fibular fracture healed well decades ago, as evidenced by the negative clinical findings over a lengthy period and the negative X-ray findings that continue to date. Specifically, there is no radiographic evidence of any residuals of the fracture, such as malunion or nonunion of the fibula or of arthritis of the ankle joint. In seeking an increased rating, the veteran has claimed, primarily, that ankle sprains with weakness constitute increased disability for which an increased rating is warranted. The veteran is not competent to determine that the sprains are the result of the service-connected healed fracture, as has been explained above. Were that the only basis for the increased rating claim, it would not be well grounded. However, he has also referred to ankle pain. There have been documented complaints of bilateral foot pain on several occasions, but they have been related to the service-connected trench feet for which a separate rating is in effect. His complaints of ankle pain have been in association with ankle sprains which are not shown by competent evidence to be the result of the healed ankle fracture. The medical evidence does not document identifiable residuals of the fractured fibula. While the veteran had some tenderness in the distal aspect of the lateral malleolus on VA examination in July 1992, this apparently is attributable to the recent injury rather than the old fracture inasmuch as the examiner made no diagnosis of fracture residuals. Although the veteran has argued that pain in his right lower extremity should be taken into consideration, the medical evidence does not show that any recent ankle pain is a manifestation of the old fracture rather than the ankle sprain. Some limitation of right ankle motion was noted on the July 1992 VA examination, but the examiner did not attribute it to the fibular fracture since the only ankle disability diagnosed was chronic ankle sprain. In summary, the evidence does not show that the remote fracture has resulted in malunion of the fibula with slight ankle disability or in disability more closely approximating those criteria. Accordingly, an increased rating under Diagnostic Code 5299-5262 is not warranted. 38 U.S.C.A. §§ 1155, 38 C.F.R. §§ 4.7, 4.31, Diagnostic Code 5299-5262. Moreover, the ankle fracture does not present an unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as required for an extraschedular evaluation under 38 C.F.R. 3.321(b)(1). The recent medical treatment administered has been for ankle sprain and not for the healed fracture. ORDER The claim for service connection for a right ankle sprain is dismissed. The claim for an increased (compensable) evaluation for residuals, fracture of the distal shaft, right fibula, is denied. 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 that 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.