BVA9506171 DOCKET NO. 92-54 818 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for a shell fragment wound scar of the right lower extremity. 2. Entitlement to service connection for residuals of a shell fragment wound of the left lower extremity. 3. Entitlement to an increased evaluation for post-traumatic stress disorder, currently evaluated as 30 percent disabling. 4. Entitlement to an increased (compensable) evaluation for residuals of a fracture of the right fibula. 5. Entitlement to an increased (compensable) evaluation for residuals of a chip fracture of the left malleolus. REPRESENTATION Appellant represented by: Military Order of the Purple Heart ATTORNEY FOR THE BOARD Ronald R. Bosch, Counsel INTRODUCTION The veteran served on active duty from April 1960 to August 1965 and from June 1966 to June 1968. This appeal arose from a May 1991 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The RO granted entitlement to service connection for residuals of a fracture of the right fibula and residuals of a chip fracture of the left malleolus, each assigned a noncompensable evaluation; and denied entitlement to service connection for an acquired psychiatric disorder including post- traumatic stress disorder, and shell fragment wound residuals of both lower legs. The above determination was affirmed in November 1991. The Board of Veterans' Appeals (Board) REMANDED the case to the RO for further development in April 1993. In an January 1994 rating decision the RO granted entitlement to service connection for post-traumatic stress disorder which was assigned a 10 percent evaluation, and affirmed all determinations previously entered. The RO granted entitlement to an increased evaluation of 30 percent for post-traumatic stress disorder when it issued a rating decision in April 1994. The RO denied entitlement to service connection for chloracne due to exposure to Agent Orange in a February 1994 rating decision. A statement of the case as to this issue was provided to the appellant in May 1994. The RO denied entitlement to service connection for a liver disorder, respiratory disorder, and numbness of the fingers and toes as secondary to exposure to Agent Orange when it issued a rating decision in October 1994. No supplemental statement of the case was provided to the veteran by the RO as to the additional denial of entitlement to service connection for disabilities claimed to be the result of exposure to Agent Orange. The Board declines to adjudicate piecemeal the multiple disorders claimed by the appellant as related to his exposure to Agent Orange. The Board is therefore referring the issues of entitlement to service connection for multiple disorders claimed as secondary to exposure to Agent Orange to the RO for preparation of a supplemental statement of case with respect to the remaining issues claimed to have resulted from exposure to Agent Orange. In his May 1994 appeal statement to the Board, the veteran stated that he had not been able to work since December 1989. The RO recently denied his claim for entitlement to a permanent and total disability rating for pension purposes. It is not clear from the appellant's statement whether he continues to claim pension benefits or is claiming entitlement to a total disability rating for compensation purposes on the basis on individual unemployability. This matter is referred to the RO for clarification and appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he sustained shell fragment injuries of both lower legs as the result of combat action in Vietnam, thereby warranting entitlement to a grant of service connection. He further contends that his right fibula and left malleolus fracture residuals are sufficiently disabling as to warrant grants of increased (compensable) evaluations. The veteran further argues that his post-traumatic stress disorder is more disabling than currently evaluated. 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 grants of entitlement to service connection for residuals of a shell fragment wound of the left lower leg, and increased (compensable) evaluations for right fibula and left malleolus fracture residuals; and that the record supports grants of entitlement to service connection for a shell fragment wound scar of the right lower leg and an increased evaluation of 50 percent for post- traumatic stress disorder. FINDINGS OF FACT 1. The service medical records show the veteran sustained a shell fragment wound of the left leg, and a Western Union telegram shows the veteran sustained a fragmentation wound of the left lower extremity in May 1967, while serving in Vietnam. 2. No residuals of the shell fragment wound of the left leg have been demonstrated on the basis of post service VA examination. 3. The service medical records contain no findings of a shell fragment wound of the right leg; however, a Western Union telegram of record shows the veteran sustained a fragmentation wound of the right lower extremity in May 1967, while serving in Vietnam. 4. At a January 1991 VA examination, the veteran was noted to have a very faint 5 millimeter scar over the right anterior lower leg. 5. A January 1991 VA examination disclosed radiographic evidence of a deformed right distal fibula suggesting an old healed fracture. 6. There was no evidence of residual disability due to a previous chip fracture of the left malleolus when the veteran was examined by VA in January 1991. 7. Post-traumatic stress disorder is productive of not more than considerable social and industrial impairment. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of a shell fragment wound of the left lower leg are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. § 3.303(b) (1994). 2. A shell fragment wound scar of the right lower leg was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303(b). 3. The criteria for an increased (compensable) evaluation for residuals of a fracture of the right fibula have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.31, 4.40, 4.71(a), Diagnostic Code 5262. 4. The criteria for an increased (compensable) evaluation for residuals of a chip fracture of the left malleolus have not been met. 38 U.S.C.A. §§ 3.321(b)(1), 4.7, 4.31, 4.40, 4.71(a), Diagnostic Code 5271. 5. The criteria for an increased evaluation of 50 percent for post-traumatic stress disorder have been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.132, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially the Board finds that the veteran's claims are well grounded within the meaning of 38 U.S.C.A. § 5107(a), in that he has presented claims which are plausible. The Board is satisfied that as a result of the April 1993 remand of the case to the RO for further development, all relevant facts have been properly developed, and that no further assistance to the veteran is required in order to comply with 38 U.S.C.A. § 5107(a). I. Entitlement to service connection for residuals of shell fragment wounds of both lower legs. The service medical records contain no findings of a shell fragment wound of the right lower leg. However, the claims file contains a copy of a Western Union telegram noting that the veteran had sustained fragmentation wounds of both lower legs in May 1967 while serving in Vietnam. The May 1968 discharge examination report shows the veteran had 3 small shrapnel wound scars on the left lower leg which had not been recorded in his health record. The veteran's decorations include a Purple Heart Medal and a Gold Star. The VA examination conducted in January 1991 disclosed no evidence of a shell fragment injury of the left lower leg. The x-ray of the left lower leg was interpreted as negative for any abnormalities. The examiner noted a very faint 5 millimeter scar on the right lower leg. The x-ray of the right leg disclosed evidence suggesting a previous fracture of the fibula. The examination diagnoses included a finding of history of shell fragment wounds of both legs, no residuals. A VA hospital summary pertaining to an admission of the appellant in September and October 1991 disclosed no evidence of shell fragment injuries of either leg including an x-ray of the left lower leg which noted no signs of metallic or any other foreign body. The Board does not question the fact that the veteran did indeed sustain shell fragment injuries of both lower legs in Vietnam. However, a grant of service connection can only be predicated on a demonstration of identifiable, demonstrated residual disability shown to be related to disease or injury incurred in service. Rabideau v. Derwinski, 2 Vet.App. 141 (1992). No identifiable residuals of the shell fragment injury of the left lower leg have been shown on the basis of post service examination. There exists no basis upon which to predicate a grant of entitlement to service connection. As the VA examiner did identify a faint 5 millimeter scar on the right lower leg during the course of the January 1991 VA examination, the Board finds that service connection is warranted for that scar as a residual of a service incurred shell fragment wound of the right lower leg. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303(b). II. Entitlement to increased (compensable) evaluations for residuals of fractures of the right fibula and the left malleolus. The service medical records show the veteran sustained a chip fracture of the left malleolus in August 1960. There was no further mention of the chip fracture in the service medical records. In December 1963 he sustained a fracture of the right fibula when he slipped off a curb. In May 1964 he had few complaints concerning his right ankle. The January 1991 VA examination disclosed no deformity of the right fibula or ankle. There was a normal range of motion of both ankles. The veteran's gait was described as normal. The examiner noted there may be a suggestion of external rotation of the right foot although both feet were slightly externally rotated. Pedal pulses were present in both ankles. The examiner noted an old healed fracture of the distal fibula, right. An x- ray of the left lower leg was interpreted as negative for any abnormalities. An x-ray of the right lower leg disclosed deformities of the distal fibula most probably indicating an old healed fracture. The veteran's right fibula fracture is rated noncompensable under diagnostic code 5262 of the VA Schedule for Rating Disabilities. The noncompensable evaluation is predicated on the basis that no residual disability related to the previous fracture is shown. 38 C.F.R. § 4.31. A 10 percent evaluation under diagnostic code 5262 requires malunion of the tibia and fibula with slight knee or ankle disability. This has not been shown on examination. The veteran's chip fracture of the left malleolus is rated noncompensable under diagnostic code 5271. The noncompensable evaluation is predicated on the absence of any disability related to the previous chip fracture. 38 C.F.R. § 4.31. A 10 percent evaluation under diagnostic code 5271 requires moderate limitation of ankle motion. This has not been shown on examination. The healed chip malleolus and right fibula fractures are not shown to be productive of pain resulting in functional impairment. 38 C.F.R. § 4.40. No question has been presented as to which of two or more evaluations would more properly classify the severity of either fracture. 38 C.F.R. § 4.7. The fractures have not rendered the veteran's disability picture unusual or exceptional in nature and have not markedly interfered with employment. They have not required frequent inpatient care as to render impractical the application of regular schedular standards, thereby precluding a grant of increased evaluations on an extraschedular basis. 38 C.F.R. § 3.321(b)(1). The Board finds that no medical basis has been presented upon which to predicate a grant of an increased (compensable) evaluation for fracture residuals of either the right fibula or left malleolus. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.31, 4.40, 4.71(a), Diagnostic Codes 5262, 5271. III. Entitlement to an increased evaluation for post-traumatic stress disorder, currently evaluated as 30 percent disabling. Post-traumatic stress disorder was diagnosed in connection with a VA psychiatric examination conducted in November 1990. A generalized anxiety disorder was diagnosed when the veteran was examined by VA in January 1991. Private psychology studies dated in February 1992 resulted in a diagnosis of post-traumatic stress disorder. In a May 1993 letter, the veteran's brother described his personal knowledge and observations of the veteran's psychiatric symptomatology. A July 1993 report of psychiatric examination with psychology testing results included a diagnosis of mild post-traumatic stress disorder. In an October 1993 letter, a private social worker advised, among other things, that the veteran needed treatment. At an October 1993 VA psychiatric examination the veteran reported that he was nervous and depressed. Recently he had been having nightmares, at least three times a week. He had nightmares about friends getting blown up in Vietnam. He dreamt about fighting in Vietnam. When he awakened, he relived his experiences. He did not think of them during the day but sometimes had intrusive thoughts. When he had these thoughts he went to a cabin in the woods and sometimes spent a few hours or the whole day there. He refused to be around crowds and did not like to associate with many people. He did not watch movies or read books about the Vietnam conflict. The appellant was quite ambivalent about going to the Vietnam War Memorial in Washington, D.C. He had had trouble falling asleep until he was placed on medication. The veteran complained of poor concentration, sweating, and feeling jittery when things reminded him of Vietnam. He did not watch much of the Persian Gulf War on television. He worked as much as he could after service. He stated he could not work at this time because of his nervousness. The appellant did not think he could cope with people and concentrate on his job. He summarized his extensive combat experience. The veteran related he had been depressed on an intermittent basis since he had left service. He complained of nightmares and difficulty sleeping. He felt down in the dumps, blue, sad, and tearful. Sometimes he wished he were not alive. He talked about nightmares and night sweats and heard people yelling at him regarding his buddies in Vietnam. On mental status examination the veteran was oriented times four. Digit span was 4 forward and 3 backward. He could remember one of three objects after five minutes. Remote memory seemed to be intact. The appellant could not subtract $7.50 from $18.00. He had trouble with calculations. Judgment and insight were slightly impaired. Interpretation of proverbs was concrete. He seemed teary eyed and had tremors in his voice. He twisted a paper in his hands. Speech was hesitant. There were no delusions and looseness of ideations, but flashbacks were described. Suicidal ideations were denied. Fund of knowledge was below average. The veteran reported that after returning from Vietnam he worked as a firefighter for over a year. He worked in an ambulance. He often could not get anyone to help. He worked in the coal mining industry for 18 years until the mine shut down in 1989. He stated that he had tried to do his job and never had trouble with coworkers or supervisors but people sometimes asked him why he was so quiet. The appellant stated that when the mines closed down he could not get any work. The examiner noted that the veteran had chronic obstructive pulmonary disease, history of cardiac arrhythmias, bilateral ankle arthritis, sinusitis, hiatus hernia, residuals of hemorrhoid surgery, and frequent body rashes. The relevant diagnoses were post-traumatic stress disorder related to Vietnam; and major depressive disorder, recurrent. The veteran's post-traumatic stress disorder currently evaluated as 30 percent disabling is predicated upon definite social and industrial impairment under diagnostic code 9411 of the VA Schedule for Rating Disabilities. The next higher valuation of 50 percent requires considerable impairment of social and industrial adaptability. 38 C.F.R. § 4.132. In the case of Hood v. Brown, 4 Vet.App. 301 (1993), the United States Court of Veterans Appeals stated that the term "definite" in 38 C.F.R. § 4.132 was "qualitative" in character, and invited the Board to "construe" the term "definite" in a manner that would quantify the degree of impairment for purposes of meeting the statutory requirement that the Board articulate "reasons and bases" for its decision. 38 U.S.C.A. § 7104(d)(1). In a precedent opinion, the General Counsel of VA concluded that "definite" is to be construed as representing a degree of social and industrial inadaptability that is "more than moderate but less than rather large. The Board is bound by that interpretation of the term "definite." 38 U.S.C.A. § 7104(c). With these thoughts in mind, the Board will now consider whether a higher evaluation is warranted for the appellant's post- traumatic stress disorder. The most recent VA psychiatric examination of record disclosed that the veteran continues to experience flashbacks, intrusive thoughts, and nightmares pertaining to his extensive combat experiences in Vietnam. He has gone through recurrent depression and even on examination displayed sadness. He has been undergoing therapy and has not been shown to have any substantial social interaction. Since the closure of a coal mine, he has not engaged in any employment. He has not been able to obtain employment and it has not been shown that his psychiatric disorder has precluded employment. The veteran has had difficulty sleeping and has secluded himself when he has been unable to cope with manifestations of his psychiatric disability. The Board is of the opinion that his post-traumatic stress disorder exacerbations more closely approximate the level of severity contemplated in the next higher evaluation of 50 percent. 38 C.F.R. § 4.7. While the Board has determined that the claimant's post-traumatic stress disorder has increased in severity, the Board does not find that such increased impairment is compatible with more than considerable social and industrial impairment contemplated in the 50 percent evaluation. In other words, the appellant's psychiatric disability is not productive of severe impairment which would warrant assignment of a 70 percent evaluation. In this regard the Board observes that the veteran has not required inpatient care, is not under an unusual heavy quantity of medication, and is not otherwise severely disabled due to post- traumatic stress disorder. Post-traumatic stress disorder has not rendered the veteran's disability picture unusual or exceptional in nature and has not markedly interfered with employment. It has not required frequent inpatient care as to render impractical the application of regular schedular standards, thereby precluding a grant of an increased evaluation on an extraschedular basis. 38 C.F.R. § 3.321(b)(1). The Board concludes that the evidentiary record supports a grant of an increased evaluation of 50 percent for post-traumatic stress disorder. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.132, Diagnostic Code 9411. ORDER Entitlement to service connection for residuals of a shell fragment wound of the left lower leg is denied. Entitlement to service connection for a shell fragment wound scar of the right lower leg is granted. Entitlement to an increased (compensable ) evaluation for residuals of a fracture of the right fibula is denied. Entitlement to an increased (compensable) evaluation for residuals of a chip fracture of the left malleolus is denied. Entitlement to an increased evaluation of 50 percent for post- traumatic stress disorder is granted, subject to pertinent criteria governing the payment of monetary benefits. ALBERT D. TUTERA 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.