BVA9507704 DOCKET NO. 93-14 117 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Francisco, California THE ISSUE Entitlement to an increased evaluation for fracture residuals of the right tibia and fibula, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. P. Candelmo, Associate Counsel INTRODUCTION The veteran had active military service from January 1958 to November 1961. This matter came before the Board of Veterans' Appeals (hereinafter "the Board") on appeal from an April 1991 rating decision from the San Francisco, California Regional Office (hereinafter "the RO") which denied an increased rating evaluation for fracture residuals of the right tibia and fibula. The veteran has been represented throughout this appeal by the Disabled American Veterans. The veteran has advanced contentions on appeal which the Board has construed as a request for entitlement to service connection for the loss of his front teeth; a back disorder, a left knee disorder and a total rating for compensation purposes based on individual unemployment. As these issues have neither been developed nor certified for review on appeal, they are referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran asserts on appeal that the RO erred in denying an increased disability evaluation for his service connected right leg fracture residuals as that disability has increased in severity. He contends that his service connected injury has been shown to be manifested by a nonunion of the right fibula and requires the use of a leg brace. The Board's attention is directed to the provision of 38 C.F.R. § 4.7 (1994). DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of all evidence and material of record in the veteran's claims file, it is the Board's decision that the record supports the allowance of a 40 percent disability evaluation for fracture residuals of the right tibia and fibula. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal. 2. The veteran's right tibial and fibula fracture residuals have been shown to be manifested by a nonunion of the right fibula and requires the use of a leg brace. CONCLUSION OF LAW The schedular criteria for a 40 percent disability evaluation for fracture residuals of the right tibia and fibula have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, including § 4.3 and Diagnostic Code 5262 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, it is necessary to determine if the veteran has submitted a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), and if so, whether the Department of Veterans Affairs (hereinafter "VA") has properly assisted him in the development of his claim. A "well-grounded" claim is one which is not implausible. A review of the record indicates that the veteran's claim is plausible and that all relevant facts have been properly developed. Accordingly, a remand in order to allow for additional development of the record is not necessary. I. Historical Review The veteran's service medical records indicate that he fractured his right tibia and fibula in February 1960. In February 1960, the veteran underwent an open reduction of the right distal tibia and fibula with internal fixation. In February 1961, the veteran underwent a bone grafting procedure to correct his incomplete right tibial fracture. At the August 1962 VA examination for compensation purposes, the examiner diagnosed the veteran with a healed right tibia and nonunion of the right fibula. Contemporaneous X-ray studies of the tibia and fibula showed that a bone graft appeared to be broken at the fibula fracture site with slightly separated bony fragments. The examiner conveys that the right fibula fracture was not united. In September 1962, service connection was established for fracture residuals of the right tibia and fibula and a 10 percent disability evaluation was assigned to that disability. At the February 1986 VA examination for compensation purposes, the examiner reports that the veteran exhibited 5 degrees of dorsiflexion to 5 degrees plantar flexion of the right ankle; pain upon direct palpation of the right leg; and right thigh atrophy when compared to the left. The veteran walked with a limp and wore a right leg brace. In April 1986, the veteran's disability evaluation for his service- connected right leg disorder was increased from 10 to 20 percent. II. Increased Disability Evaluation Disability evaluations are determined by comparing the veteran's current symptomatology with the criteria set forth in the Schedule For Rating Disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1993). Malunion of the tibia and fibula of either lower extremity warrants a 20 percent evaluation when the disability results in moderate knee or ankle disability. A 30 percent evaluation requires that the malunion produce marked knee or ankle disability. Nonunion of the tibia and fibula of either lower extremity warrants a 40 percent evaluation if there is loose motion requiring a brace. 38 C.F.R. Part 4, Diagnostic Code 5262 (1994). Where there is a question as to which of two disability 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 (1993). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the 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 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. 38 C.F.R. §§ 4.40, 4.45 (1994). The report of the April 1991 VA examination for compensation purposes relates that the veteran exhibited tenderness around the lower one-third of his right leg and a range of motion of the right ankle of 35 degrees of plantar flexion to 10 degrees of dorsiflexion with 15 degrees of inversion and 5 degrees of eversion. The veteran showed an obvious deformity in the form of a large soft tissue bulge on the lateral aspect of the lower one- third of his right leg. A contemporaneous X-ray study of the right tibia and fibula revealed a healed fracture at the junction of the middle and distal thirds of the tibia. The veteran's right fibula showed a persistent lucency and nonunion at the fracture site with the prominence and overgrowth of callus suggestive of motion. At the April 1992 VA examination for compensation purposes, the veteran complained of constant right leg pain and swelling. The examiner noted that the veteran utilized a leg brace, Canadian crutches and elastic stockings. The veteran's right ankle's muscle strength consisted of "three out of five" dorsiflexion with "three out of five" plantar flexion. A contemporaneous X- ray study conveyed no significant change in the fracture sites of the tibia and fibula since the April 1991 VA X-ray studies. The Board has reviewed the probative evidence of the record including the veteran's argument on appeal. The veteran's service-connected tibial and fibular fracture residuals have been shown to be manifested by a non-union of the right fibula; progressive leg pain and swelling; and instability. Such symptoms merit the assignment of a compensable disability evaluation in excess of 20 percent. Given the non-union of the veteran's right fibula which requires the use of a brace, the Board finds that a 40 percent disability evaluation is now warranted. 38 C.F.R. Part 4 including Diagnostic Code 5262 (1994). A 40 percent rating is the maximum schedular rating assignable under Code 5262, and an evaluation in excess of 40 percent is not appropriately assignable under any other applicable code, on either a schedular or extraschedular basis. See 38 C.F.R. § 3.321(b)(1) (1994). ORDER A 40 percent disability evaluation for fracture residuals of the right tibia and fibula is granted subject to the laws and regulations governing the award of monetary benefits. JEFF MARTIN 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 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.