BVA9507932 DOCKET NO. 93-12 082 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an increased evaluation for residuals of left foot gunshot wound, muscle group X, with compound fracture of the first metatarsal, currently evaluated as 10 percent disabling. 2. Entitlement to an increased evaluation for traumatic synovitis of the left knee, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans INTRODUCTION The veteran served on active duty from March 1940 to September 1945. This appeal arises from an April 1992 rating decision of the Department of Veterans Affairs (VA) Muskogee, Oklahoma Regional Office (RO). On appeal the issues of entitlement to service connection for rib fracture residuals, foot fracture residuals, and toe fracture residuals, each secondary to left foot gunshot wound residuals. Additionally, the veteran has raised the issue of entitlement to a total disability evaluation on the basis of individual unemployability. These issues, however, are not currently developed or certified for appellate review. Accordingly, they are referred to the RO for appropriate consideration. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that increased evaluations for his service connected left knee and left foot disorders are warranted. Essentially, it is maintained that these disorders are more severely disabling that their current evaluations reflect. Specifically, it is argued that the veteran’s left foot gunshot wound residuals are productive of severe pain and discomfort, and that the service connected left knee is unstable. 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 increased evaluations for residuals of left foot gunshot wound, muscle group X, with compound fracture of the first metatarsal; and for traumatic synovitis of the left knee. FINDINGS OF FACT 1. The veteran’s residuals of left foot gunshot wound, muscle group X, with compound fracture of the first metatarsal, are not more than moderately disabling. 2. The veteran’s traumatic synovitis of the left knee is not productive of ankylosis, a limitation of leg flexion to 30 degrees, a limitation of leg extension to 15 degrees, more than slight recurrent subluxation, or more than slight lateral instability. CONCLUSIONS OF LAW 1. The schedular criteria for an evaluation in excess of 10 percent for residuals of left foot gunshot wound, muscle group X, with compound fracture of the first metatarsal, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.40, 4.73, Diagnostic Code 5310 (1994). 2. The schedular criteria for an evaluation in excess of 10 percent for traumatic synovitis of the left knee have not been met. 38 C.F.R. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.40, 4.71a, Diagnostic Codes 5003, 5020, 5256, 5257, 5260, 5261 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background In February 1943, while in combat near Gafsa, Tunisia, the veteran sustained a one centimeter, penetrating shell fragment wound to the lateral aspect of his left foot, with fracture of the first metatarsal head. X-ray examination of the left foot showed a comminuted fracture of the proximal half of the "fifth" metatarsal, with fragments in good alignment and position. Left foot surgery was performed during which a foreign body was removed. The veteran was returned to duty in April 1943. In September 1945 the veteran was seen for a separation examination. This revealed left knee traumatic synovitis, and evidence of an old left foot metatarsal fracture without loss of flexion. The veteran was seen for a VA compensation examination in July 1946. He reported left foot pain with prolonged standing of more than a few hours, nighttime cramping, and limping that interfered with walking and farm work. Physical examination disclosed a small callus over the lateral cuneiform, and left fifth metatarsal joint. Motion study disclosed normal findings. No residuals of left knee synovitis were apparent. X-ray study of the left foot disclosed no evidence of bone pathology, except for an old fracture of the proximal portion of the first metatarsal bone with moderate callus formation. There was no displacement, although the appearance of the bone indicated perforation by a small missile. No foreign body was observed. The diagnoses were mild traumatic left knee synovitis, and residuals of a left foot gunshot wound; fracture, compound, proximal portion, left first metatarsal with moderate callus formation, and subjective complaints of aching, pain and a slight limp. In an August 1946 rating decision service connection and a 10 percent disability evaluation was granted for mild, traumatic left knee synovitis; and for a moderate gunshot wound, muscle group X, penetrating intrinsic muscles of the left foot, with compound fracture of the proximal portion of the first metatarsal. The 10 percent evaluations for each of these disorders have remained in effect since. Between April 1990 and July 1991 the veteran received periodic VA outpatient neurological treatment for complaints of burning left foot pain. The distribution of the pain was described as sock- like. Various treatment regimens were offered but ultimately the examiner stated in July 1991 that there was little to offer the veteran to relieve his pain. The diagnoses during this period included vitamin B12 deficiency, left ankle causalgia, chronic pain syndrome, and left foot pain. In June 1992, James R. Turrentine, D.O., reported that the veteran was seen by VA for burning left foot pain which precluded sleep. The veteran was reported to have noted being evaluated by both orthopedists and neurologists, but he did not know why he was experiencing this symptomatology. On physical examination Dr. Turrentine did not see much either. The veteran showed good hair on the ankle, but there was no hair on the feet. The absence of hair was noted to be typical with men who have circulatory problems, however, the veteran showed a pretty fair posterior tibial pulse on both feet, and there was no discoloration. Dr. Turrentine offered that he did not know what the veteran’s problem was. With respect to the veteran’s left knee complaints of instability were reported. Medication was prescribed for the complaints of left foot pain, and anti- inflammatory medication was given to help the left knee. It was hoped that the anti-inflammatory drug would help the knee from giving way. The veteran presented sworn testimony before a hearing officer at the RO in July 1992. He reported continual, burning left foot pain at the site of his gunshot wound. The left foot was reported to become fatigued after walking less than a half mile. With respect to his left knee disorder the veteran presented testimony concerning complaints of knee pain, occasional instability, and the need to use a cane. In August 1992, James Vance Miller, M.D., reported that the veteran had never completely recovered from his service connected disorders. His joints were described as unstable, and pain and anesthesia were judged as being constant. Dr. Miller opined that the veteran was 100 percent disabled for the performance of ordinary manual labor. William B. Parsons, D.O., wrote a statement on the veteran’s behalf in August 1992, in which he offered that the veteran experienced chronic left knee pain, with occasional joint locking. Dr. Parsons also reported that the veteran suffers from some peripheral neuropathy symptoms manifested by a burning sensation in his left foot. The veteran was seen for a VA compensation examination in August 1992. He reported left knee and foot pain, and left knee instability. Physical examination disclosed that the veteran limped on his left knee. He was unable to walk on his toes or heels, and he was unable to squat. Left knee flexion was to 145 degrees, and extension was to 0 degrees. Range of motion study of the ankles disclosed plantar flexion to 50 degrees bilaterally, dorsiflexion to 0 degrees bilaterally, and supination to 20 degrees bilaterally. A one "inch," well healed scar was observed at the medial aspect of the left foot, and a tiny scar was seen at the lateral aspect. X-ray study of the left knee disclosed a comminuted fracture of the proximal left fibula with some callous formation. Left knee degenerative changes were also observed, including hypertrophic spurring, medial joint space narrowing, and chondrocalcinosis. X-ray study of the left foot showed an oblique fracture of the distal second and third metatarsals with evidence of callous formation. No other acute bony abnormalities were observed. The diagnoses were left knee "shrapnel" injury "with problems;" and left foot shrapnel wound with limping, but otherwise normal function. Analysis The veteran's claims are well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented claims which are plausible. The Board is also satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Disability evaluations are based on a comparison of clinical findings with the relevant schedular criteria. 38 U.S.C.A. § 1155. Where an increased rating is at issue it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet.App. 55, 58 (1994). I. Entitlement to an increased evaluation for residuals of left foot gunshot wound, muscle group X, with compound fracture of the first metatarsal. A moderate disability of the muscles consists of a through and through or deep penetrating wound of relatively short track by a single bullet or small shell or shrapnel fragment. The absence of explosive effect of a high velocity missile, residuals of debridement, or prolonged infection are also indicative of a moderate disability. Objective findings of a moderate disability of the muscle are linear or relatively small entrance and (if present) exit scars so situated as to indicate a relatively short track of the missile through muscle tissue; signs of moderate loss of deep fascia or muscle substance or impairment of muscle tonus, and definite weakness or fatigue in comparative tests. 38 C.F.R. § 4.56(b) (1994). A moderately severe disability is presented by evidence of a through and through or deep penetrating wound by a high velocity missile of small size, or a large missile of low velocity, with debridement or with prolonged infection or with sloughing of soft parts, intramuscular cicatrization. Objective findings of a moderately severe wound are relatively large entrance and (if present) exit scars so situated as to indicate the track of the missile through important muscle groups. Indications on palpation of moderate loss of deep fascia, moderate loss of muscle substance, or moderate loss of normal firm resistance of muscles compared with sound side. Tests of strength and endurance of muscle groups involved (compared with sound side) give positive evidence of marked or moderately severe loss. 38 C.F.R. § 4.56(c). Muscle group X involves the intrinsic muscles of the foot. The function of the muscle group is the control of forefoot and toe movement, and for providing propulsion thrust when walking. A moderate muscle group X disability warrants a 10 percent disability evaluation. A moderately severe muscle group X disability warrants a 20 percent disability evaluation. 38 U.S.C.A. § 4.73, Diagnostic code 5310. The veteran contends that an increased evaluation is warranted for left foot gunshot wound residuals. In this regard, physical examination in August 1992 revealed that veteran limped when he walked, that the left foot showed residual scars, and that he reported left foot pain. Significantly, however, the alteration in the veteran’s gait was not attributed to left foot gunshot wound residuals, the scars were described as well healed, and pain reported by the veteran was not clinically associated with the gunshot wound residuals. Moreover, while an x-ray study of the left foot showed an oblique fracture of the distal second and third metatarsal with evidence of callous formation, these fracture residuals are not service connected, and no other bony abnormality of the left foot was observed. In light of the foregoing, the Board concludes that an increased evaluation for residuals of left foot gunshot wound, muscle group X, with compound fracture of the first metatarsal, is not warranted. II Entitlement to an increased evaluation for traumatic synovitis of the left knee. Synovitis is rated on limitation of the affected part, as degenerative arthritis. Degenerative arthritis is rated on the basis of limitation of motion for the specific joint involved. If the limitation of motion is noncompensable under the under appropriate diagnostic code, a rating of 10 percent is for application for each such major joint. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5020. A limitation of leg flexion to 45 degrees warrants a 10 percent evaluation. A limitation of leg flexion to 30 degrees warrants a 20 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5260. A limitation of leg extension to 10 degrees warrants a 10 percent evaluation. A limitation of leg extension to 15 degrees warrants a 20 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Favorable ankylosis of the knee in full extension, or in slight flexion between 0 and 10 degrees warrants a 30 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5256. Slight recurrent subluxation or slight lateral knee instability warrants a 10 percent evaluation. Moderate recurrent subluxation or slight lateral knee instability warrants a 20 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The standard range of motion for the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II (1994). In this case, the evidence shows that the veteran complains of left knee pain and instability. Physical examination in August 1992 disclosed that the veteran limped on his left knee, and that he was unable to squat. Significantly, however, the veteran demonstrated a full range of left knee motion with 145 degrees of flexion, and 0 degrees of extension. While X-ray study of the left knee disclosed a comminuted fracture of the proximal left fibula with some callous formation, and degenerative changes, including hypertrophic spurring, medial joint space narrowing, and chondrocalcinosis; the Board observes that the veteran is not service connected for comminuted left fibula fracture residuals. With respect to the x-ray evidence of degenerative arthritis of the knee that disability is compensated based on any limitation of left knee motion which, as noted above is not shown. Accordingly, the Board finds that the preponderance of the evidence is against entitlement to an increased evaluation for left knee synovitis. Thus, the benefit sought on appeal is denied. In denying an increased evaluation for the veteran’s traumatic left knee synovitis the Board considered the complaints of left knee instability. Based on the lack of clinical evidence showing more than slight instability or subluxation, however, an increased evaluation is not warranted. In reaching both of the foregoing decisions the Board considered awarding compensation for functional disablement due to pain in light of 38 C.F.R. § 4.40 (1994), and the decision in Schafrath v. Derwinski, 1 Vet.App. 589 (1991). The currently assigned compensable ratings, however, encompass the veteran’s complaints of pain. Moreover, it is well to recall that the disability ratings themselves are a recognition that industrial capabilities are impaired. See Van Hoose v. Brown, 4 Vet.App. 361, 363 (1993). Finally, the Board considered the contention that the combination of the veteran’s left foot and left knee disorder precludes ordinary manual labor. This contention, however, presents a claim for individual unemployability, and as noted in the Introduction section above, such a contention presents an issue not currently certified or developed for appellate review. ORDER Entitlement to an increased evaluation for residuals of left foot gunshot wound, muscle group X, with compound fracture of the first metatarsal is denied. Entitlement to an increased evaluation for traumatic synovitis of the left knee is denied. DEREK R. BROWN 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.