BVA9502257 DOCKET NO. 92-09 747 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an increased evaluation for right ankle disability, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. J. McCarty, Associate Counsel INTRODUCTION The veteran had active service from August 1945 to February 1947. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 1990 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In July 1994, the Board remanded the veteran's case to the RO for further development. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that an evaluation in excess of 10 percent for his service-connected right ankle disability is warranted. In support of this contention, he claims that he has swelling , occasional pain, limitation of motion and cramps in his right ankle. 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 the veteran's claim for entitlement to an evaluation in excess of 10 percent for his service-connected right ankle disability. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The veteran's service-connected right ankle disability is manifested by good range of motion and mild degenerative joint disease; it is not productive of more than moderate impairment. 3. No unusual or exceptional disability factors have been presented. CONCLUSION OF LAW The criteria for an evaluation higher than 10 percent for right ankle disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.71, Diagnostic Codes 5003, 5271 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board finds that the veteran's claim for an increased evaluation for right ankle disability is plausible or capable of substantiation, and thus well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); See Proscelle v. Derwinski, 2 Vet.App. 629 (1992). The Board is satisfied that all relevant facts have been properly developed, and that no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). In accordance with 38 C.F.R. §§ 4.1, 4.2 (1993) and Schafrath v. Derwinski, 1 Vet.App. 589 (1991), the Board has reviewed the service medical records and all other evidence of record pertaining to the history of the veteran's service-connected right ankle disability. The Board has found nothing in the historical record that would lead to a conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations that would warrant an exposition of the remote clinical histories and findings pertaining to the disability at issue. Disability evaluations are determined by application of the VA's Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4 (1993). The percentage ratings contained in the Rating Schedule represent, as far as can be practically determined, the average impairment in earning capacity resulting from diseases or injuries incurred in or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (1991); 38 C.F.R. Part 4 (1993). In a January 1948 rating action, the veteran was granted service connection for traumatic arthritis of his right knee as a residual of a fracture sustained in service, a 10 percent evaluation was assigned, effective from February 1947. Outpatient treatment reports, dated from June 1990 to August 1991, reveal that the veteran complained of intermittent pain in his right ankle for the preceding two years and nocturnal cramping. He was diagnosed as having arthritis of the right ankle related to prior trauma. X-ray examination revealed narrowing of the right ankle joint. An October 1991 VA examination report shows that the veteran reported that his right ankle was relatively asymptomatic until the preceding two to three year period. He complained of experiencing pain in his right ankle upon walking. He was vague about the time period and length of walking, but reported that if he was on his feet for most of the day, he would have pain and swelling in his ankle. He relieved the pain by elevating the right ankle and taking aspirin. Physical examination revealed that the veteran was able to ambulate without assistance and that he could walk on his toes and heels without complication. The examiner noted that both ankles were within normal limits regarding muscle size and contour, and that the veteran had full range of motion in the ankle joints and feet. Crepitus was noted in the right ankle with dorsiflexion of the foot. There was increased venous markings on both feet and ankles. Both feet were warm and had positive pulses. The examiner diagnosed a history of service-connected injury of the right ankle with probable degenerative joint disease. The veteran was found to be mildly symptomatic without functional impairment as a result of his right ankle disability. X-ray examination was negative for evidence of fracture, dislocation, or other joint or bone pathology. A September 1994 VA examination notes that the veteran complained of progressive right ankle pain which was worse after a full day of work. The veteran was found to be active and the symptomatology related to his right ankle disability did not limit him. Physical examination revealed that he had good range of motion of the ankle, dorsiflexion to 30 degrees, and good subtalar range of motion. X-rays showed degenerative joint disease of the right ankle evidenced by a narrowed joint space. Under the provisions of the Rating Schedule, arthritis established by x-ray findings is rated on the basis of limitation of motion of the specific joint or joints involved. Where, however, the limitation of motion is non-compensable, a rating of 10 percent is assigned for each major joint or group of minor joints affected by limitation of motion which is objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating will be assigned when there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups. If in addition to the foregoing, there are occasional incapacitating exacerbations, the applicable rating is 20 percent. 38 C.F.R. Part 4, Code 5003. Disability involving the ankle may be evaluated on the basis of limitation of motion. Moderate limitation of motion warrants a 10 percent evaluation, and marked limitation of motion warrants a 20 percent evaluation. 38 C.F.R. Part 4, Code 5271. As indicated above, the September 1994 VA examination shows that the veteran has good range of motion of the ankle, dorsiflexion to 30 degrees, and degenerative joint disease of the right ankle evidenced by a narrowed joint space. These findings were essentially the same as a 1991 VA examination. The Board finds that these findings are consistent with the assigned 10 percent evaluation under Code 5271. Moreover, the evidence does not demonstrate the presence of ankylosis or any other functional impairment indicative of more than the moderate ankle impairment contemplated by the assigned evaluation of 10 percent. Finally, the Board notes that no unusual or exceptional disability factors warranting extraschedular consideration have been presented. 38 C.F.R. § 3.321(b)(1). ORDER Entitlement to an evaluation higher than 10 percent for right ankle disability is denied. F. JUDGE FLOWERS 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.