BVA9500526 DOCKET NO. 92-02 022 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to a compensable evaluation for a right tibia disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Sandra L. Smith, Associate Counsel INTRODUCTION The veteran had active service from August 1987 to February 1989. This appeal is before the Board of Veterans' Appeals (the Board) from a July 1991 rating decision of the Regional Office (RO) which initially denied service connection for a left tibia disorder and granted service connection for a right tibia disorder with a noncompensable disability rating. Both issues were remanded by the Board in October 1993. A June 1994 rating decision granted service connection for the left tibia disorder as well and assigned a noncompensable rating to the disability. The veteran did not disagree with this decision; therefore, it is not subject to appellate review. The case is returned to the Board for resolution of the remaining issue. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that a compensable rating is warranted for his service-connected right tibia disability. Furthermore, the veteran's representative requests that any and all reasonable doubt be resolved in the veteran's favor. It is asserted that the veteran has objective symptoms after only minimal use, and that there is functional limitation warranting a compensable rating under 38 C.F.R. §§ 4.40, 4.45. 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 preponderance of the evidence is against the claim for an increased (compensable) rating for the veteran's service- connected right tibia disorder. FINDINGS OF FACT 1. All relevant available evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran's right tibia disability is manifested principally by subjective complaints of periodic pain and swelling with a normal physical examination; functional loss or joint instability due to pain have not been objectively shown. 3. The veteran's right tibia disability does not produce an exceptional or unusual disability picture with related factors such as need for frequent hospitalization or marked interference with employment. CONCLUSION OF LAW The criteria for a compensable evaluation for a right tibia disorder have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.31, 4.40, 4.45, 4.71a, Codes 5262 and 5271 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board finds that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented a claim which is plausible. The Board is also satisfied that all relevant facts have been properly developed. Moreover, there is no indication that there are other records available which would aid a decision. The Board concludes that the record is complete and there is no further duty to assist the veteran in developing his claim under 38 U.S.C.A. § 5107(a). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim must be denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity resulting from specific service-connected disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria that must be shown for specific ratings. 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. If the schedular rating criteria are inadequate, an extraschedular evaluation may be assigned commensurate with the impairment of average earning capacity if there is 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). In a July 1991 rating decision, the veteran was granted service connection for a right tibia disorder, and assigned a noncompensable rating for the disability. VA regulations provide that a malunion of the tibia and fibula of either leg warrants a 10 percent evaluation when the disability results in slight knee or ankle disability. A 20 percent evaluation requires that the malunion produce moderate knee or ankle disability. 38 C.F.R. § 4.71a, Code 5262. The regulations also state that moderate limitation of motion of either ankle warrants a 10 percent evaluation. A 20 percent evaluation requires marked limitation of motion. 38 C.F.R. § 4.71a, Code 5271. In addition, the regulations provide that in every instance where the minimum schedular evaluation requires residuals and the schedule does not provide a no-percent evaluation, a no-percent evaluation will be assigned when the required residuals are not shown. 38 C.F.R. § 4.31. A review of the veteran's service medical records reveals that he was treated in October 1987 for a stress fracture of the right tibia with bilateral shin splints. Pain was present on palpation of the shin area and edema was present on the posterior shin. The veteran was afforded a VA medical examination of his back in April 1990. A review of the examination report reveals that the veteran gave a history of shin splints during service and complained of leg pain in damp weather or when it rained so as to cause him to limp. He also stated that his left leg was the one that hurt. The examination was for the back and no physical findings referable to the legs were recorded. The veteran was afforded a VA medical examination of his lower legs in February 1991. A review of a VA medical examination report, with an amended report (requested for clarification) dated in March 1994, shows that the veteran gave a history of a stress fracture of the right tibia and complained of pain in the front of both legs since 1987. However, the physical findings as to the right leg were normal, although x-rays did reveal minimal cortical thickening of the left proximal tibia (per the clarification of the x-ray report). It was noted that the veteran had a normal gait, could walk on his toes and heals, and that his feet were well aligned. There was some complaint of pain on heel and toe walking on right ankle inversion, but no limitation of motion was reported. There were no reported of muscle atrophy or instability on the right. The relevant diagnosis was of painful legs with a history of a stress fracture of the right tibia, with a negative exam. A letter from the veteran, dated in July 1991, stated that he had pain in his legs on an average of tree times a week which caused him to limp. He also stated that his legs felt swollen at times. A review of VA outpatient treatment records, dated from 1989 to February 1992, revealed no evidence of any complaints, findings or treatment relevant to the veteran's service-connected right tibia disorder. The veteran testified at a personal hearing in April 1992. He stated that he first sought medical treatment at a VA clinic for his legs about three to six months after his discharge from service. He had continued to return to the clinic periodically since then. Treatment consisted of Motrin, heat and advice to take it easy on his legs. He self-medicated with Ben Gay and other similar ointments. The veteran further testified that he believed he had been denied employment by some potential employers because he had indicated that he had a leg problem. He stated that when the weather changed his legs would hurt. Also, when he stood for long periods of time or walked a long distance his legs would throb. They also swelled "off and on" at the end of the day. He had changed jobs because of his legs. He was currently working two jobs as a salesman and security guard. He experienced soreness at the end of his current work day. The Board finds, based on the evidence of record, that the veteran's service connected right tibia disorder does not warrant a compensable evaluation under Code 5262 as there is no medical evidence of a malunion. The Board further finds that a compensable evaluation under Code 5271 is not warranted. The Board notes that the findings of the VA medical examiner were normal. In reviewing the veteran's subjective complaints as stated during the medical examination and during his personal hearing, the Board finds that the veteran exhibits no more than mild symptoms. The VA physician noted the veteran had a normal gait, could walk on his heels and toes and stand without difficulty. There were no signs of instability or limitation of function. Thus the veteran's symptoms more nearly approximate the criteria for a noncompensable rating than that for a 10 percent rating. The provisions of 38 C.F.R. §§ 4.40, and 4.45 have been considered in making this determination. While the veteran has objective complaints of pain, there is no objective showing of functional limitation. He has reported that he thinks he has not gotten some employment because of this legs, but this is not otherwise confirmed. He was employed at the time of his hearing. Sore legs at the end of a day of work, especially if on one's feet all day, does not constitute a basis to grant a compensable rating, especially where, as here, there are no confirmatory objective findings. In reaching our decision consideration has 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). We also do not find that the evidence presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular criteria, so as to warrant the assignment of an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1). There is no evidence of frequent periods of hospitalization or marked interference with employment due to this disorder. ORDER Entitlement to a compensable evaluation for a right tibia disorder 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.