Citation Nr: 0000312 Decision Date: 01/06/00 Archive Date: 01/11/00 DOCKET NO. 95-31 185 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to a compensable evaluation for residuals of crush injury of the left foot. 2. Entitlement to a compensable evaluation for residuals of fractured right pelvis and pubic ramus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Robinson, Associate Counsel INTRODUCTION The veteran had active service from July 1969 to July 1971. This matter comes before the Board of Veterans' Appeals (Board) from rating determinations of a Department of Veterans Affairs (VA) Regional Office (RO). In view of the Board's decision granting a 10 percent evaluation for the crush injury of the left foot; the issue of entitlement to a 10 percent evaluation for multiple noncompensable disabilities is rendered moot. 38 C.F.R. § 3.324 (1999). FINDINGS OF FACT 1. The service-connected residuals of crush injury of the left foot are manifested by mild tenderness on the under surface at the site of a scar, and complaints of occasional aching without limitation of motion, swelling or objective evidence of pain or other functional impairment. 2. It has not been objectively shown that there are residuals of fractured right pelvis and pubic ramus. CONCLUSIONS OF LAW 1. The criteria for a 10 percent rating for residuals of crush injury of the left foot have been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. 4.71a Part 4, Diagnostic Code 7104 (1999). 2. The criteria for a compensable rating for residuals of fractured right pelvis and pubic ramus have not been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71a, Part 4, Diagnostic Codes 5299-5250 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background The veteran's service medical records show that he sustained a crush injury of the left foot in July 1970, when he dropped a box on his foot while working in a warehouse. An X-ray examination revealed a fracture of the proximal and distal phalanges of the left first toe. On examination there was marked swelling and generalized tenderness of the entire left foot. There were lacerations on the sole of the foot and web space of the first and second toes. There was good artery and nerve function and no evidence of tendon damage. He was discharged to duty later in July 1970. In November 1970, it was noted that the veteran complained of pain over the lateral edge of the left foot. It was noted that the veteran had callus formation beneath the heal of the first metatarsal. The impressions included no organic pathology of significance. The service medical records also show that in May 1971, the veteran sustained a right orbital fracture, cerebral concussion, multiple contusions and lacerations and a closed fracture of the pubic ramus. The injuries were sustained when a camper in which the veteran was a passenger overturned while rounding a curve. It was noted that the fracture of the superior and inferior rami of the right pubic bone did not involve significant displacement. On orthopedic examination, it was believed that the veteran could be returned to light duty and to remain on crutches for six weeks. In July 1971, the veteran was noted to have minimal tenderness to adduction compression. On examination for separation from service in July 1971, the feet and lower extremities were noted to be normal. The veteran was accorded a VA examination in April 1980. At that time, he complained of pain in the insole of his left foot after prolonged walking. He also complained of weakness of the right hip and thigh after prolonged walking. On examination, the veteran walked with a normal gait, carriage, and posture. There was no obvious deformities, tenderness, or swelling of the joints of the extremities. Range of motion in all joints was normal. Walking on heels and toes were well performed. Squatting and recovery was normal and straight leg raising was to 90 degrees, bilaterally. Both feet showed no deformity, edema or trophic changes. X-rays of the left foot showed no arthritic changes, no intrinsic bony pathology, no evidence of any recent or old fractures or fracture deformity or other traumatic change. X-rays of the pelvis and hips showed no arthritis of the hips or sacroiliac joints, no pathology of pelvic bones, negative study. The impressions were crushing injury by history, left foot, and fracture, right pelvis, no evidence. VA hospital report dated in August 1993, shows that the veteran was admitted and treated for acute pancreatis. There were no complaints or findings referable to the veteran's left foot disability. A history of right pelvis fracture without current findings was noted. VA outpatient treatment records dated from May to September 1994 show treatment for conditions not currently at issue. In June and August 1994, the veteran was seen with complaints of an unsteady gait. A history of traumatic brain injury was noted as well as history of crushed injury of the left foot. VA outpatient treatment records dated from April 1995 to June 1996 show treatment for conditions not currently at issue. The veteran was seen on several occasions with complaints of difficulty with balance. X-rays of the left foot taken in April 1996 were within normal limits without evidence of fracture. The veteran was accorded a VA examination in March 1996. On examination, the veteran was observed to walk with a slight limp on the left. He was able to bend and touch the floor with minimal discomfort. He was able to flex his hips to about 19 degrees on both sides, but complained of tightness sensation of back of the left leg and thigh. There was no definite tenderness noted over the hip area. Range of motion was as follows: flexion was to 110 degrees, bilaterally; extension was to 10 degrees; abduction was to 30 degrees; and adduction was to 20 degrees. Examination of the feet revealed both diastolic pedis pulsation and posterior tibial on both feet. The veteran was able to walk to on his toes and heels. Squatting on his feet caused some discomfort. His gait appeared to be normal except for a small ligament on the left. X-rays of the left foot were within normal limits with no evidence of fracture, dislocation, or bony lesions. The impressions were history of crush injury to pelvis in 1970, and a history of a crushed injury to the left foot in 1970. The veteran was accorded a VA feet examination in September 1996. On examination, left foot inversion was to 5 degrees; eversion was to 3 degrees, extension was to 10 degrees, and flexion was to 80 degrees. The veteran's shoes were evenly worn in a pronation pattern. The veteran was accorded a VA examination in February 1998. Examination of the left foot revealed full range of motion, no swelling with mild tenderness on the under surface of the left foot. Examination of the right hip revealed a full range of motion with lateral rotation bilaterally to approximately 30 degrees and flexion to 90 degrees. Straight leg raising was normal with negative Lasegue sign, bilaterally. There was no tenderness in the right hip area noted. The diagnoses were status post history of crush injury, left foot, without any residual abnormalities and status post fracture, right pelvis without any present physical abnormalities. X-rays of the left foot were within normal limits. X-rays of the right hip showed mild osteophytosis of the right hip, surgical clip in the pelvis, calcifications in the pelvic vessels and vas deferens, and no evidence of fracture, dislocation, or subluxation. The veteran was accorded a VA examination in March 1998. At that time, he complained of numbness in the left lower extremity beginning at the sole of the left and passing upward to the knee. He also reported weakness and "giving way" of the left leg that resulted in falls. He reported a burning pain radiating from the hip passing down to the right ankle. He reported that the pain was intermittent in nature and improved with the application of analgesic cream. Examination of the left foot revealed a slightly depressed scar in the sole of the foot, slightly proximal to the metatarsal phalangeal joints in the center of the sole. There was tenderness to palpation in that area. The joints of the toes midfoot and hindfoot were equal in motion to those of the right. There was decreased pinprick sensation in the entire left leg beginning at the hip and passing distally. The circumferences of the thigh were 16 inches on the right and 15 1/2 inches on the left. Calf circumferences were equal, bilaterally. Reflexes at the knees and ankles were equal and hyperactive. The veteran's gait was described as somewhat staggered and widespread. The Romberg test was positive. Hip motion was as follows: flexion was to 120 degrees, abduction was to 30 degrees, adduction was to 20 degrees, inward rotation was to 20 degrees, outward rotation was to 30 degrees. The motions were the same, bilaterally. The veteran complained of tenderness to palpation posteriorly on the iliac crest on the right side. The diagnoses were history of crush injury of the left foot, scar sole of the left foot, history of pelvic fracture. The examiner noted that the veteran complained of numbness in the left lower extremity but the examination revealed numbness in the entire left lower extremity. It was also noted that the veteran complained of pain at the right lateral leg albeit normal range of motion of both hips, knees, and feet. The examiner reported that X-rays of the pelvis taken in February 1998 showed evidence of healed fracture of the inferior pubic ramus on the right side. There was no evidence of degenerative changes. X-rays of the left foot revealed no abnormality. The examiner opined that the veteran was developing a neurological disease affecting both lower extremities, which was not related to the injury sustained to the left foot or to the right hemipelvis. There was no orthopedic reason to explain the profound numbness in the left lower extremity nor was that an orthopedic reason to explain the veteran's altered gait. Pertinent Law and Regulations Disability evaluations are based, as far as practicable, upon the average impairment of earning capacity resulting from the disability. 38 U.S.C.A. § 1155. The average impairment as set forth in the VA Schedule for Rating Disabilities, 38 C.F.R. Part 4 (1999), includes diagnostic codes which represent particular disabilities. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries. Generally, the degrees of disability are specified adequate to compensate for a considerable loss of working time, from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (1999). 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. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. §§ 4.2, 4.41 (1999). An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment, and the effect of pain on the functional abilities. 38 C.F.R. §§ 4.10, 4.40, 4.45 (1999). The United States Court of Appeals for Veterans (Court) has held that, when a diagnostic code provides for compensation based upon limitation of motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 (1999) must also be considered, and that examinations upon which the rating decisions are based must adequately portray the extent of functional loss due to pain "on use or due to flare-ups." DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40 (1999). As regards the joints the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) Less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.). (b) More movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.). (c) Weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.). (d) Excess fatigability. (e) Incoordination, impaired ability to execute skilled movements smoothly. (f) Pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. 38 C.F.R. § 4.45 (1999). In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (1999). When all the evidence is assembled, VA is responsible for determining whether the evaluation supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1991). Analysis The Board has found that the veteran's claims are "well grounded" within the meaning of the statute and judicial construction. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). See Proscelle v. Derwinski, 2 Vet. App. 629 (1992) (a claim of entitlement to an increased evaluation for a service-connected disability generally is a well-grounded claim). VA, therefore, has the duty to assist the veteran in the development of facts pertinent to his claim. In this regard, the Board notes that the current evidence of record consists of a current VA examination dated in March 1998. Residuals of crush injury, left foot A review of the record shows that the RO rating decision dated in September 1980 granted service connection for residuals of crush injury of the left foot. The RO has evaluated the disability as noncompensable under the provisions of Diagnostic Code 5284. Under the provisions of Diagnostic Code 5284, foot injuries are ratable as 10 percent disabling when moderate, 20 percent when moderately severe, or 30 percent disabling when severe. For his part, the veteran has described his disability as "asymptomatic" until 1996 at which time he began to experience aching and numbness in his left foot. The March 1998 examiner opined that the veteran's numbness and his altered gait were not related to his service-connected left foot disability. Significantly, the left foot disability has required no recent treatment. The 1998 examination reports showed that the veteran had a normal range of motion, without any findings of functional impairment. X-rays of the left foot were shown to be within normal limits with no evidence of fracture, dislocation or subluxation. In accordance with Diagnostic Code 5284, a minimum 10 percent disability rating applies if the residuals of the foot fracture are moderate; residuals that are less than moderate are rated as noncompensable. 38 C.F.R. §§ 4.31, 4.71a. The Board finds that the residuals of crush injury of the left foot, including tenderness to palpation, are no more than mild. Fenderson v. West 12 Vet. App. 119 (1999) (the Board must consider the application of 38 C.F.R. § 4.40 in evaluating a complaint of foot pain). There is no objective evidence of pathology resulting from the fracture, with the exception of tenderness on the under surface that was described as mild. There is no question regarding which of two evaluations more properly classifies the severity of the left foot disability. 38 C.F.R. § 4.7. Because the residuals are not more than mild, and a compensable rating requires evidence showing that the residuals are moderate, the Board has determined that the preponderance of the evidence is against entitlement to a compensable disability rating for the residuals of a crush injury of the left foot. Since the there have been no clinical findings of pain on motion or other indicia of more than mild functional impairment, the veteran would not be entitled to a compensable evaluation on the basis of 38 C.F.R. §§ 4.40 or 4.45. The most recent examinations in February and March 1998, have revealed tenderness surrounding a scar at the site of the veteran's crush injury. Under the provisions of 38 C.F.R. § 4.118, Diagnostic Code 7804, scars that are tender and painful on objective demonstration warrant a 10 percent evaluation. The Board concludes that the symptomatology reported on the recent examinations approximates the criteria for a 10 percent evaluation. Residuals of fracture, pelvis and pubic ramus A review of the record shows that a RO rating decision dated in September 1980 granted service connection for residuals of fracture, right pelvis and pubic ramus, evaluated as noncompensable. The Diagnostic Codes which pertain to musculoskeletal disabilities of the hip and thigh are Diagnostic Codes 5250 to 5255. Under Diagnostic Code 5250, a 90 percent rating is warranted for extremely unfavorable hip ankylosis with the foot not reaching the ground and crutches necessary. When there is intermediate unfavorable ankylosis, then a 70 percent rating is assigned. When there is favorable ankylosis, in flexion at an angle between 20 and 40 degrees, and slight adduction or abduction, then a 60 percent rating is assigned. 38 C.F.R. § 4.71a. Under Diagnostic Code 5251, when extension of the thigh is limited to 5 degrees, a 10 percent rating is assigned. Diagnostic Code 5252 provides a 10 percent rating when thigh flexion is limited to 45 degrees, a 20 percent rating when such flexion is limited to 30 degrees, and a 30 percent rating when flexion is limited to 20 degrees. A 40 percent rating is assigned when flexion is limited to 10 degrees. Diagnostic Code 5253 pertains to impairment of the thigh. Under that provision, limitation of thigh rotation, with the loss of the ability to toe-out more than 15 degrees, or for the limitation of adduction, with the loss of the ability to cross the legs, warrants a 10 percent evaluation. A 20 percent evaluation requires limitation of abduction with motion lost beyond 10 degrees. Diagnostic Code 5254 provides an 80 percent rating for a flail joint of the hip. Diagnostic Code 5255 provides for a 30 percent rating for malunion of the femur with marked knee or hip disability. A 20 percent rating is assigned for moderate knee or hip disability and a 10 percent rating is assigned for slight hip or knee disability due to malunion of the femur. In this case, however, X-ray examinations have shown a normal hip and pubic rami. Because there is no evidence that the veteran has a flail joint of the hip or a malunion of the femur, an increased rating under these diagnostic codes is not warranted. The Board notes that the veteran has complained of pain at the right lateral leg. The March 1998 examiner opined that the veteran was developing a neurological disease in both lower extremities, which was not related to his service- connected right hip disability. In addition, the examiner indicated that the veteran had no physical abnormalities involving the status post fracture, right pelvis. Clearly, there is no indication of any ankylosis resulting from the fracture of right pelvis and pubic ramus. 38 C.F.R. § 4.71(a), Diagnostic Code 5250. On VA the examination in February 1998, the range of motion of the hips was described as full, with lateral rotation bilaterally to 30 degrees and flexion to 90 degrees. There was no tenderness in the right area. On most recent VA medical examination in March 1998, range of motion of the hips showed normal flexion from zero to 120 degrees, bilaterally. External rotation was to 30 degrees, bilaterally; internal rotation was to 20 degrees, bilaterally; abduction was to 30 degrees, bilaterally, and adduction was to 20 degrees, bilaterally. The examiner noted that the range of motions were normal for both hips. Considering the range of motion studies in the record, the veteran's right and left hip disabilities do not meet the criteria for a compensable rating for limitation of extension (Diagnostic Code 5251); limitation of flexion (Diagnostic Code 5252); or limitation of abduction, adduction, or rotation (Diagnostic Code 5253). 38 C.F.R. § 4.71a, Diagnostic Codes 5251, 5252, 5253. The Board concludes that the medical findings on examination are of greater probative value than the veteran's statements regarding the severity of his right hip disability. Accordingly, the weight of the evidence is against the claim for an increased rating. The Board has also considered whether factors including functional impairment and pain as addressed under 38 C.F.R. §§ 4.10, 4.40 and 4.45 would warrant a higher rating. See DeLuca, supra. However, the recent VA examination failed to demonstrate the presence of pain or weakness in the right hip. Therefore, a higher rating is not warranted under these provisions. ORDER Entitlement to a 10 percent evaluation for residuals crush injury of left foot is granted subject to the laws and regulations governing the payment of monetary awards. Entitlement to a compensable evaluation for residuals of fractured right pelvis and pubic ramus is denied. Mark D. Hindin Member, Board of Veterans' Appeals