BVA9507827 DOCKET NO. 93-10 795 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE 1. Entitlement to an increased rating for service-connected residuals of a left calcaneus fracture, currently evaluated as 0 percent disabling. 2. Entitlement to an increased rating for service-connected residuals of a left, second metatarsal fracture, currently evaluated as 0 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. J. Bohanan, Associate Counsel INTRODUCTION The appellant served on active duty from May 1981 to May 1984. This appeal arises from a June 1992 Department of Veterans Affairs Regional Office, St. Petersburg, Florida (VARO) rating decision, which denied the appellant's claim for increased ratings for his service-connected residuals of a left calcaneus fracture, currently evaluated as 0 percent disabling, and his service-connected residuals of a left, second metatarsal fracture, currently evaluated as 0 percent disabling. CONTENTIONS OF APPELLANT ON APPEAL In essence, the appellant contends that his service-connected residuals of a left, calcaneus fracture and a left, second metatarsal fracture, both currently evaluated as 0 percent disabling, are of sufficient severity to warrant increased ratings. 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 entitlement to increased ratings for the residuals of a left calcaneus fracture and residuals of a second metatarsal fracture is warranted. FINDINGS OF FACT 1. The appellant served on active duty from May 1981 to May 1984. 2. The appellant's service-connected residuals of a left calcaneus fracture are manifested by tenderness over the calcaneus and a mild limp. 3. The appellant's service-connected residuals of a left, second metatarsal fracture are manifested by tenderness on the dorsal portion of the left foot and a mild limp. CONCLUSIONS OF LAW 1. The appellant's residuals of a left calcaneus fracture are no more than 10 percent disabling according to the schedular criteria. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.321, 4.7, 4.71a, Diagnostic Code 5273 (1994). 4. The appellant's residuals of a left, second metatarsal fracture are no more than 10 percent disabling according to the schedular criteria. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.321, 4.7, 4.20, 4.71a, Diagnostic Code 5284 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this appeal, the appellant is seeking increased ratings for his service-connected residuals of a left calcaneus fracture, currently evaluated as 0 percent disabling, and his service- connected residuals of a left, second metatarsal fracture, currently evaluated as 0 percent disabling. In evaluating the appellant's request for increased ratings, the Board considers all of the medical evidence of record, including the appellant's relevant medical history. Peyton v. Derwinski, 1 Vet.App. 282 at 287 (1991). In so doing, it is our responsibility to weigh the evidence before us. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1994). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 (1994) requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 (1994) requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). Moreover, VA has a duty to acknowledge and consider all assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. The schedular criteria for malunion of the os calcis call for a 10 percent disability evaluation for moderate deformity and a 20 percent disability evaluation for marked deformity. 38 C.F.R. § 4.71a, Diagnostic Code 5273 (1994). The residuals of the appellant's left, second metatarsal fracture are rated by analogy to other foot injuries. 38 C.F.R. § 4.20 (1994). The schedular criteria for other foot injuries call for a 10 percent disability rating for moderate foot injury; a 20 percent disability rating for moderately severe foot injury; a 30 percent disability rating for severe foot injury; and a 40 percent disability evaluation for foot injury with actual loss of use of the foot. 38 C.F.R. § 4.71a, 5284 (1994). It must be noted that the terms "moderate", "marked" and "severe" are not defined in VA regulations. Rather than applying an inflexible formula, it is incumbent upon the Board to arrive at an equitable and just decision after having evaluated the evidence. 38 C.F.R. §§ 4.6 (1994). It should also be noted that the use of terminology such as "moderate" or "marked" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (1994). Arthritis due to trauma is to be rated as degenerative arthritis. 38 C.F.R. § 4.71a Diagnostic Code 5010 (1994). The criteria for degenerative arthritis calls for a 10 percent disability rating for degenerative arthritis with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups; a 20 percent disability rating is warranted for degenerative arthritis with x- ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5010, 5003 (1993). It is noted that the ratings based on x-ray findings will not be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a Diagnostic Code 5003 (1994). Before discussing the appellant's claim, the Board believes that an overview of the appellant's medical history is in order. Medical history Service medical records reveal that the appellant fractured his left calcaneus in June 1981 after he jumped 20 feet on an obstacle course. A cast was applied for 30 days. A July 1981 service treatment entry reported that the cast was removed and that the appellant was much improved with good healing. The examiner restricted the appellant's running. A September 1981 military treatment entry reported that the appellant complained of pain and swelling for 4 days in his left foot. The examiner observed edema and pain on palpation with limited motion due to pain. He assessed a left foot sprain. The appellant continued to complain of pain and swelling later that month, but denied any trauma. The examiner referred the appellant to the podiatry clinic, where x-rays revealed a healing fracture of the 2nd metatarsal. An October 1981 entry reported that the appellant was healing well. A May 1982 military treatment entry reported that the appellant complained of bilateral pain "shooting up from heels" after excessive walking. The examiner diagnosed Achilles tendonitis strain. The appellant's March 1984 separation examination was positive for broken bones. A VA examination was conducted in July 1984. The appellant reported a history of ankle injury with swelling and pain. The examiner observed no abnormal limitation of motion of the lower extremities. X-rays of the appellant's left foot and both ankles were normal. They revealed no significant bony abnormalities and well preserved joint spaces. An April 1992 medical treatment entry from the appellant's private physician, Bruce J. Holtzman M.D., reported that the appellant complained of pain in his left foot for 1 year. Dr. Holtzman observed that the appellant's skin was normal in texture and turgor. His toenails were normal. No circulatory or neurological abnormalities were observed. Dr. Holtzman noted a mild forefoot valgus bilaterally with tenderness over the mid tarsal joint of the left foot. He diagnosed traumatic arthritis of the left foot and recommended foot functional orthotics. VA outpatient treatment records dated from May 1992 to June 1992 reported that the appellant complained of left foot pain. The examiner assessed tendonitis and pes planus. A VA examination was conducted in October 1992. The appellant reported that he took medication and that, although he used to wear a cast occasionally, he now wore a "shoe insert." The examiner observed that the appellant had a minimal limp. His range of motion of the foot in flexion, extension, inversion and eversion was normal. There was tenderness on the dorsal portion of the foot and some tenderness over the calcaneus. His circulation was normal. No swelling or redness was observed. X- rays were within normal limits and failed to reveal any significant abnormality of visualized bones or joints. Analysis 1. Entitlement to an increased rating for service connected residuals of a left calcaneus fracture, currently evaluated as 0 percent disabling. After having carefully reviewed all of the medical records and evaluated all of the evidence, the Board is of the opinion that current manifestations of the appellant's residuals of a left calcaneus fracture, which include some tenderness over the calcaneus and a minimal limp, with normal range of motion, more nearly approximate the level of severity which calls for a 10 percent disability rating for moderate deformity. 38 C.F.R. § 4.71a, Diagnostic Code 5273 (1994). The Board bases this conclusion on all the evidence of record, with emphasis upon the appellant's most recent October 1992 VA examination, which reported that the appellant limped and complained of pain on use of his left foot, and that he had tenderness over the left calcaneus. There was no x-ray evidence of traumatic arthritis. In exceptional cases where the evaluations provided by the rating schedule are found to be inadequate, an extra-schedular evaluation may be assigned which is commensurate with the veteran's average earning capacity impairment due to the service-connected disorder. 38 C.F.R. § 3.321(b) (1994). However, the regular schedular standards applied in the current case adequately describe and provide for the appellant's condition. The Board, therefore, does not find any other unusual or exceptional circumstances, such as marked interference with employment or frequent periods of hospitalization for this disability, that would warrant the application of an extra- schedular rating. 2. Entitlement to an increased rating for residuals of a fracture of the left, second metatarsal fracture, currently evaluated as 0 percent disabling. Further, the Board is of the opinion that current manifestations of the appellant's residuals of a left, second metatarsal fracture, which include tenderness over the dorsal portion of the left foot and a mild limp, with no limitation of motion, more nearly approximate the level of severity which calls for a 10 percent disability rating. 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5284 (1994). The Board bases this conclusion on all of the evidence of record, with emphasis upon the appellant's most recent October 1992 VA examination, which reported tenderness on the dorsal portion of the appellant's foot and a minimal limp with no limitation of motion. Again the Board finds that the regular schedular standards applied in the current case adequately describe and provide for the appellant's condition. The Board, therefore, does not find any other unusual or exceptional circumstances that would warrant the application of an extra-schedular rating. ORDER An increased ratings for service-connected residuals of a left calcaneus fracture and residuals of a left second metatarsal fracture are granted subject to the governing regulations pertaining to the payment of monetary benefits. JAN DONSBACH 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.