Citation Nr: 0002950 Decision Date: 02/04/00 Archive Date: 02/10/00 DOCKET NO. 95-21 166 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES Entitlement to an increased (compensable) evaluation for a scar on the left knee Entitlement to an increased (compensable) evaluation for residuals of a gunshot wound of the right ring finger. Entitlement to an increased evaluation for hammertoes of the left foot, currently rated 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL The appellant and the appellant's spouse and daughter ATTORNEY FOR THE BOARD R. A. Caffery, Counsel INTRODUCTION The veteran had active service from June 1943 to October 1945. His decorations include the Combat Infantryman Badge and the Purple Heart Medal. By rating action dated in July 1992 the Department of Veterans Affairs (VA) Regional Office, Cleveland, Ohio, among other things, held that new and material evidence had not been submitted to reopen a claim of entitlement to service connection for residuals of frozen feet and confirmed and continued noncompensable evaluations for a scar on the left knee, left fifth hammertoe and residuals of a gunshot wound of the right ring finger. The veteran appealed from those decisions. In April 1994, the veteran, his spouse and his daughter testified at a hearing at the regional office. In September 1994, the regional office hearing officer held that new and material evidence had been submitted to reopen the claim of entitlement to service connection for residuals of frozen feet. However, service connection for that condition remained denied. The denials of the increased ratings were confirmed and continued. The case was initially before the Board of Veterans' Appeals (Board) in December 1997, when it was remanded for further action. The Board noted that the statement of the case that was sent to the veteran in December 1993 included the issues of whether new and material evidence had been submitted to reopen claims of entitlement to service connection for psychiatric disability and duodenal ulcer. However, in October 1996, the veteran withdrew his claim for service connection for a duodenal ulcer. In a June 1997 rating action, the regional office granted service connection for post-traumatic stress disorder and rated the condition 50 percent disabling. Thus, those issues were no longer in an appellate status. The Board further noted that the statement of the case also included the issue of entitlement to a compensable rating for multiple service-connected disabilities under 38 C.F.R. § 3.324 but noted that, in view of the compensable evaluation assigned for the veteran's service-connected psychiatric condition, that issue had become moot. In a March 1999 rating action, the regional office granted service connection for residuals of frozen feet, evaluated as 10 percent disabling from September 1993 and 30 percent disabling from January 1998. Thus, the question of service connection for residuals of frozen feet is no longer in appellate status. The regional office further granted service connection for peripheral neuropathy of the right foot and shin and peripheral neuropathy of the left foot and shin, each rated 20 percent disabling. The noncompensable evaluations for the scar of the left knee and gunshot wound residuals of the right ring finger were confirmed and continued. Action with regard to the claim for an increased rating for the left fifth hammertoe was deferred. In a September 1999 rating action, the regional office assigned separate 30 percent evaluations for residuals of a frozen right foot and residuals of a frozen left foot. The noncompensable evaluations for the scar on the left knee and residuals of the gunshot wound of the right ring finger were confirmed and continued. The grant of service connection for the left fifth hammertoe was expanded to include hammertoes of all toes of the left foot and rated 10 percent disabling, effective from January 10, 1992, the date of receipt of the claim for an increased rating. Service connection was also established for hammertoes of the right foot, and a separate 10 percent evaluation was assigned for that condition, effective from January 10, 1992. The combined rating for the service-connected disabilities was increased to 90 percent. A total rating based on individual unemployability due to service-connected disabilities was also granted. It was further found that the veteran was entitled to special monthly compensation from July to September 1996. The case is again before the Board for further appellate consideration. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the regional office. 2. The veteran has a scar near the left knee with some tissue loss. There is slight limitation of motion of the knee. 3. The veteran has painful motion of the toes of the left foot with flexion deformities of the toes. There are surgical scars on the toes that are well healed. 4. The veteran has a small scar on his right ring finger with osteophytic spurring involving the joints of the finger with some limitation of motion of the finger. CONCLUSION OF LAW Evaluations in excess of zero percent, 10 percent and zero percent, respectively, for the scar of the veteran's left knee, hammertoes of the left foot, and residuals of the gunshot wound of the right ring finger are not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, Codes 5282, 7805 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes that it has found the veteran's claims are "well grounded" within the meaning of 38 U.S.C.A. § 5107(a); effective on and after September 1, 1989. That is, the Board finds that he has presented claims which are plausible. The Board is also satisfied that all relevant facts regarding the claims have been properly developed. Background The veteran's service medical records reflect that, in December 1944, he sustained an accidental laceration of his left knee with an ax while digging a foxhole. He was also treated during service because of swelling, redness and soreness of the fifth toe of the left foot. When the veteran was examined by VA in May 1947, there were well-healed and nonsymptomatic scars over both knees. There was also a hammertoe of the left fifth digit. By rating action dated in July 1947, service connection was established for a scar of the left knee and a hammertoe of the fifth digit of the left foot, each rated noncompensably disabling. In an April 1948 rating action, service connection was granted for a gunshot wound scar of the right ring finger. In January 1992, the veteran submitted a claim for an increased rating for his service-connected disabilities. The veteran was afforded a VA examination in April 1992. Examination of the right ring finger showed a scar that overlaid the proximal phalanx and the proximal interphalangeal joint. It was slightly thickened and well healed. The veteran made a good fist. He complained that the joint would catch somewhat on occasion. There was slight enlargement of the proximal interphalangeal joint. On examination of the left knee, there was a 2-inch scar located almost in the mid-anterior region just above the patella. There was no limitation of motion. The knee flexed from 0 to 145 degrees. The examiner could not elicit any crepitus. The knee was stable. The left thigh measured 1 inch less than the right thigh. The veteran had hammertoe deformities of the 2nd, 3rd, 4th and 5th toes of both feet. Diagnoses were made of residuals of laceration of the left knee, hammertoe deformities of both feet, and scar from a gunshot wound of the right ring finger. The veteran was again examined by VA in February 1997. He stated that he still had some discomfort in the left knee area and left foot. It was indicated that he had also sustained a grazing bullet wound of the right fourth finger. He stated that the joint was enlarged. On examination, there was a 11/2 -inch scar that was slightly depressed on the anterior aspect of the left knee just above the patella. It was well healed. There was no tissue loss or atrophy noted. The calf and thigh measurements were about the same, bilaterally. The knee flexed from 0 degrees to 130 degrees without crepitus. There was a hammertoe deformity of all of the toes of the left foot with the exception of the great toe. The examiner stated that he could not see any scar from the bullet wound on the right fourth finger. However, the proximal interphalangeal joint was enlarged. The veteran made a poor fist with the right hand and brought the fingers only to within 1 inch of the palm. The diagnoses were residuals of laceration of the left knee, hammertoe deformity of the toes of the left foot, and residuals of a bullet wound to the right hand. When the veteran was examined by VA in February 1998, it was indicated that his feet and legs were extremely swollen. It was stated that he had had a marked hammertoe deformity involving all the toes of both feet and had had surgical procedures performed for the hammertoes. The veteran reported a second injury related to service where he accidentally struck his left distal thigh just above the knee with the blade of an ax while cutting wood for a foxhole. He noted some weakness of the knee at times. It was further indicated that the veteran had a gunshot wound to the radial aspect of the right ring finger at the level of the proximal interphalangeal joint. He stated that that was a superficial wound but that he did have some swelling of the joint at times. He stated that that was not a major problem for him. On physical examination, the veteran had multiple scars related to hammertoe surgery involving all toes of both feet. There was also a mild hallux valgus deformity. There was minimal evidence of erythema, warmth and tenderness involving the first metatarsophalangeal joint. On examination of the left knee, the veteran had a 5- centimeter scar just proximal to the patella over the distal anterior portion of the thigh. He had some obvious tissue loss beneath the scar. There was no evidence of associated weakness of the quadriceps muscles, and there was full extension of the left knee with flexion to 122 degrees. There was no evidence of ligamentous laxity, tenderness or crepitation with motion. There was no warmth, erythema or effusion involving the left knee. The veteran had a small, irregular scar measuring about 1 centimeter in length over the radial aspect of the right ring finger at the level of the proximal interphalangeal joint. He had some obvious osteophytic spurring involving the joints on the right with no evidence of joint effusion. The proximal interphalangeal joint showed full extension. He was able to flex the joint to 92 degrees. Examination of the distal interphalangeal joint was abnormal with a flexion contracture at 15 degrees and limited flexion to 25 degrees. The diagnoses were bilateral hammertoe deformities with surgical correction involving all 10 toes, mild hallux valgus deformity involving the right great toe, and ankylosis of the interphalangeal joint of the right great toe. The veteran was afforded a VA neurological examination in February 1998. The examiner commented that he did not observe any neurological deficits regarding the veteran's left knee and right ring finger. The veteran was again examined by VA in June 1999. He complained of persistent, progressive increase in pain in both feet and worsening of the hammertoes, bilaterally. He reported diminished toe ranges of motion. He stated that he had surgery on both feet but that his feet continued to have increasing amounts of pain. He reported stiffness and intermittent swelling of the toes but no heat or redness. On physical examination, there was objective evidence of painful motion when manipulating any of the toes, bilaterally. There was no edema. The skin was in good condition without significant hyperpigmentation or hypopigmentation. There were surgical scars on the toes that were all well healed without contracture, depression or fixation. There was weakness of the toes. The veteran was unable to curl the toes or extend the toes in a normal fashion. His gait was markedly antalgic, and he used a cane. There were no abnormal calluses or break down. There was a hallux valgus of the first toes. There were also flexion deformities of the toes. An impression was made of bilateral hammertoes with history of cold injury and with persistent pain and limitation as described. The examiner expressed an opinion that the bilateral hammertoes were due to the veteran's frostbite/cold injury. Analysis Slight impairment of either knee, including recurrent subluxation or lateral instability, warrants a 10 percent evaluation. 38 C.F.R. Part 4, Code 5257. Limitation of flexion of either leg to 60 degrees warrants a noncompensable evaluation. A 10 percent evaluation requires that flexion be limited to 45 degrees. 38 C.F.R. Part 4, Code 5260. Limitation of extension of either leg to 5 degrees warrants a noncompensable evaluation. A 10 percent evaluation requires that extension be limited to 10 degrees. 38 C.F.R. Part 4, Code 5261. Hammering of single toes warrants a noncompensable evaluation. A 10 percent evaluation requires hammering of all toes of one foot, without claw foot. 38 C.F.R. Part 4, Code 5282. A 10 percent evaluation is warranted for superficial, poorly nourished scars with repeated ulceration. 38 C.F.R. Part 4, Code 7803. A 10 percent evaluation is warranted for superficial scars that are tender and painful on objective demonstration. 38 C.F.R. Part 4, Code 7804. Scars may be evaluated on the basis of any related limitation of function of the body part which they affect. 38 C.F.R. Part 4, Code 7805. Favorable or unfavorable ankylosis of the ring finger of either hand warrants a noncompensable evaluation. 38 C.F.R. Part 4, Code 5227. In this case, the record reflects that the scar near the veteran's left knee is well healed, although there is some underlying tissue loss. The VA examinations have not disclosed any pain involving the scar. There is also no significant functional impairment as a result of the left knee scar. Thus, entitlement to a compensable evaluation under the rating schedule provisions pertaining to scars (Codes 7803, 7804, 7805) would not be in order. The veteran's left knee was stable, and a compensable evaluation under Diagnostic Code 5257 would not be warranted. Although there was slight limitation of flexion of the knee, the restriction was not to such an extent as to warrant entitlement to a compensable evaluation under Diagnostic Code 5260. Accordingly, under the circumstances, the Board is unable to conclude that a compensable evaluation is warranted for the scar involving the veteran's left knee. With regard to the hammertoes of the veteran's left foot, the record reflects that the veteran has had surgical procedures involving the toes of the foot. He still complains of pain involving the feet, however, and the VA examinations have disclosed painful motion when manipulating any of the toes. There are also flexion deformities of the toes. However, there is no edema, and the surgical scars are well healed. The veteran is in receipt of a 10 percent evaluation for the hammertoes of the left foot, which is the maximum provided under Diagnostic Code 5282 for hammering of all toes of one foot. Thus, entitlement to an increased evaluation for the hammertoes of the veteran's left foot would not be in order. The scar on the veteran's right ring finger has been described as small and well healed, although slightly thickened. There was some osteophytic spurring; however, there was no evidence of joint effusion. There was a flexion contracture of 15 degrees of the distal interphalangeal joint, and flexion was limited to 25 degrees. However, under Diagnostic Code 5227, a zero percent evaluation is provided for ankylosis of a ring finger. Accordingly, it follows that entitlement to a compensable evaluation for the gunshot wound scar of the veteran's right ring finger would not be warranted under any of the applicable diagnostic codes. The Board has carefully reviewed the entire record in this case, including the testimony by the veteran, his spouse and his daughter at the hearings on appeal; however, the Board does not find the evidence to be so evenly balanced that there is doubt as to any material issue. 38 U.S.C.A. § 5107(b). ORDER An increased (compensable) evaluation for a scar on the left knee is denied. An increased (compensable) evaluation for residuals of a gunshot wound of the right ring finger is denied. An increased evaluation for hammertoes of the left foot, currently rated 10 percent disabling, is denied. WILLIAM W. BERG Acting Member, Board of Veterans' Appeals