BVA9505057 DOCKET NO. 92-55 166 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to a disability evaluation for service-connected residuals of a fracture of the right tibia, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Alan S. Peevy, Associate Counsel INTRODUCTION The veteran had active military service from June 1955 to April 1964. This case is before the Board of Veterans' Appeals (Board) on appeal from an August 1991 rating decision by the Chicago, Illinois, Regional Office (RO). By that rating decision, the RO granted entitlement to service connection for residuals of a fracture of the right tibia and assigned a noncompensable evaluation. The RO also denied entitlement to service connection for residuals of left foot injuries. In a notice of disagreement received in September 1991, the veteran indicated that he disagreed with the assignment of a noncompensable rating for right leg disability. A statement of the case was issued in October 1991, and a substantive appeal was received in November 1991. This case was previously before the Board and was remanded by Board decision dated in June 1993. The case is now again before the Board for further appellate review. The veteran is represented by the Veterans of Foreign Wars of the United States. By rating decision dated in July 1994, a 10 percent rating was assigned for the veteran's right leg disability. However, since the full benefit available was not granted, the increased rating issue remains in appellate status. In the July 1994 rating decision, the RO also denied a claim for entitlement to a total rating based on individual unemployability due to service- connected disability. A notice of disagreement has not been received with regard to that issue, and the issue of entitlement to a total rating based on individual unemployability due to service-connected disability is therefore not in appellate status. 38 U.S.C.A. § 7105(a) (West 1991). CONTENTIONS OF APPELLANT ON APPEAL The veteran and his representative contend that the severity of the veteran's service-connected right leg disability warrants a higher disability evaluation. The veteran maintains that he has no circulation in his right leg and that he has fallen several times. He further asserts that he is unable to walk properly and that he has suffered a blood clot in his right leg. It is contended that the veteran suffers constant pain and is not able to work full time as a result of right leg symptomatology. The veteran's representative directs the Board's attention to the fact that a vascular examination was not conducted although one was recommended by a Department of Veterans Affairs (VA) examining physician. 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 entitlement to a disability rating in excess of 10 percent for service-connected residuals of a fracture of the right tibia. FINDING OF FACT The veteran's service-connected residuals of a fracture of the right tibia are productive of complaints of pain, weakness and instability; muscle strength is normal, the right tibia is nontender to palpation and stable to stresses, and slight limitation of ankle motion is present; there is deformity of the distal tibia with polyneuropathy. CONCLUSION OF LAW An evaluation in excess of 10 percent for service-connected residuals of a fracture of the right tibia is not warranted. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.321 and Part 4, including 4.40 and Code 5262 (1994). REASONS AND BASES FOR FINDING AND CONCLUSION The issue before the Board involves the assignment of a disability evaluation to approximate the degree of impairment which the service-connected residuals of a fracture of the right tibia impart to the veteran. The VA assigns disability evaluations based upon the average impairment of earning capacity as contemplated by the schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1994). Under the rating criteria set forth in Diagnostic Code 5262, impairment of the tibia will be assigned a 10 percent evaluation when there is malunion with slight knee or ankle disability. The next higher rating of 20 percent is for application when there is malunion with moderate knee or ankle disability. Additionally, when evaluating a disability involving the musculoskeletal system, consideration should be given to impairment of the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance as well as to functional loss due to pain. 38 C.F.R. § 4.40 (1994). Turning to the record, the Board first emphasizes that the United States Court of Veterans Appeals (Court) has held that in order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet.App. 589, 594 (1991). In this regard, the record shows that the veteran sustained a spiral comminuted fracture of the right tibia in August 1962 after being run over by a truck. Treatment was by a long leg cast. On his initial application for disability compensation received in December 1990, the veteran reported no post-service medical treatment for right leg disability. On VA medical examination in March 1991, the veteran related complaints of leg and foot aches and pains after standing for long periods and running. Clinical examination showed that the veteran ambulated with an essentially normal gait and that he undressed without difficulty. He reportedly stood erect. No effusion or tenderness of the lower extremities was noted. Some mild pigmented deposits were noted in the anterior tibial areas bilaterally, more so on the right. Heel, toe and tandem gait were normal, coordination was good and tendon reflexes were intact. Radiological study of the left foot revealed some vascular calcification and it was noted that diabetes should be clinically excluded. Radiological study of the right lower leg showed deformity of the distal tibia due to a previous fracture, but no acute abnormality. Private medical records dated from 1991 to 1993 show treatment at The Schmidt Clinic, Ltd. for complaints related to the right lower extremity. Entries dated in September and October 1991 refer to a right thigh hematoma. Other entries document complaints of muscular weakness and pain. In August 1993, the veteran underwent a special VA bone and muscle examination. The veteran complained of weakness, episodic pain and giving out in his legs. It was noted that he used a cane. Examination of the right tibial area showed no evidence of an open wound scar. Some evidence of venostasis about the right and left pretibial areas was noted. Muscle strength was reported to be normal, but there was evidence of mild vascular compromise in both lower extremities evidenced by 1/4 peripheral pulses and atrophic changes within the skin and hair. The right tibia was nontender to palpation, and was stable to stresses in both varus and valgus, as well as anterior and posterior directions. There was no evidence of swelling, erythema or other difficulty. The muscle bulk of his right calf, thigh and foot showed no tissue loss and there was no evidence of adhesion damage to tendons. Slight limitation of ankle motion was reported, but there was no evidence of pain within the foot. Sensory examination and reflexes were reported to be within normal limits. The examiner's assessment was that the fracture of the right tibial had healed with good clinical alignment. The examiner expressed concern that the veteran could have suffered some sort of neurologic crush injury causing the episodes of pain and giving way. X-ray studies of the right tibia and fibula showed changes in the distal tibia which might represent post-operative changes in addition to a possible healed fracture. No acute fractures were identified. The veteran underwent a repeat VA examination by the same examiner in September 1993. Some pretibial edema on both the left and right tibia was noted with some chronic vascular venous stasis changes bilaterally. The veteran complained of pain to palpation over the mid third and distal third of the right tibia. Motor strength was intact, but sensory examination was decreased in a diffuse pattern over both the left and right foot. The examiner observed that a review of the August 1993 radiological studies showed no evidence for osteomyelitis. No loss of muscle strength at the fracture site was reported, and the tibiotalar joint had full range of motion. The examiner expressed his opinion that the source of the veteran's pain was very questionable. He further indicated that since the fracture was well-healed, he did not feel it was related to the fracture site. A bone scan was recommended to rule out the presence of infection. The possibility of a nerve entrapment or neuroma was also noted and the examiner reported that the veteran's pain with prolonged standing could be due to venous hypertension due to his chronic venous insufficiency as evidenced by the skin changes. The examiner further recommended that the veteran undergo a vascular examination if all orthopedic studies were normal. He also expressed his concern that the veteran may have neuropathy related to an underlying medical condition such as diabetes. A neurology EMG study of the right lower extremity conducted in October 1993 showed abnormal results which were interpreted as evidence of diffuse motor sensory polyneuropathy. It should be stressed that the issue before the Board concerns the impairment which results from the right leg fracture residuals. The recent medical evidence shows that the right tibia fracture which the veteran suffered more than 30 years ago has healed with good clinical alignment. There is, however, radiological evidence of suggesting some resulting deformity. Nevertheless, while the veteran does complain of pain, weakness and giving way, no tenderness was noted on examination. There has also been no demonstrated impairment of muscle strength, or objectively verified instability, despite the fact that the veteran reportedly uses a cane. It appears that the veteran suffers from some edema and vascular problems which have been suspected as being involved with his reported complaints. However, the suspected venous insufficiency is reported to be bilateral in nature. Moreover, other possible causes for the bilateral leg problems have been suspected, such as hypertension and diabetes. Again, it is only the impairment resulting from the service-connected right leg disability which is relevant for the issue before us. As noted in the introduction, entitlement to service connection for left foot disability was denied by the RO's August 1991 rating decision, but the veteran did not appeal that issue. After weighing the evidence in its entirety, the Board finds that the preponderance of the evidence is against entitlement to a disability rating in excess of the current 10 percent for right leg disability. The record does show some x-ray evidence of deformity or malunion and some slight limitation of motion of the ankles. However, clinical examination of the right tibia showed no loss of muscle mass or tenderness on palpation. While recognizing the veteran's complaints of pain and weakness, the Board nevertheless concludes that the 10 percent rating currently in effect contemplates such symptomatology. The Board notes here that the VA is under a statutory duty to assist the veteran with the development of evidence in connection with his claim. 38 U.S.C.A. § 5107(a) (West 1991). The Court has held that this duty includes adequate VA medical examinations. Littke v. Derwinski, 1 Vet.App. 90 (1990). Moreover, the duty to assist encompasses a special VA examination if one is recommended by a VA examining physician. The veteran's representative has pointed out that a VA examining physician recommended a special examination of the veteran's venous system. The Board further notes that a bone scan was recommended to rule out the possibility of infection. However, as shown by the references to other disorders, such as diabetes, these additional studies were recommended for the purpose of discovering the source of the bilateral leg symptomatology and were not designed to ascertain the current impairment resulting from the service- connected right leg disability. This case has been remanded once, and the duty to assist does not mandate additional development to include the recommended special tests under the limited circumstances of this case. The Board understands the veteran's contentions and does not doubt that his right leg disability results in some impairment in earning capacity. However, the evidence does not demonstrate that a schedular rating in excess of 10 percent is warranted at this time. Moreover, there is no showing of such an exceptional or unusual disability picture with frequent hospitalizations and interference with employment attributable to his service- connected right leg disability so as to warrant extraschedular consideration. 38 C.F.R. § 3.321 (1994). The veteran may always file a claim for an increased rating in the future if the symptomatology attributable to his right leg increases in severity. ORDER The appeal is denied. G. H. SHUFELT 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.