BVA9501846 DOCKET NO. 93-07 089 ) DATE ) ) On appeal from a decision by the Department of Veterans Affairs Regional Office in White River Junction, Vermont THE ISSUE Entitlement to an increased rating for postoperative residuals of a left ankle injury, rated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Keith W. Allen, Associate Counsel INTRODUCTION The veteran served on active duty from May 1968 to September 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 1992 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in White River Junction, Vermont, which denied the veteran's claim for an increased rating for postoperative residuals of a left ankle injury, rated as 30 percent disabling. That is the only issue properly before the Board at this time. The Board notes that the RO also denied an extension of a temporary total convalescent rating (38 C.F.R. § 4.30) beyond June 30, 1992, and this issue was covered in an August 1992 statement of the case. However, this issue is not on appeal, since the veteran's September 1992 substantive appeal does not address the issue, and, at his October 1992 hearing the veteran indicated he was satisfied with the RO's decision on the issue. Also at his hearing, he indicated his intention to file a claim for service connection for a nervous condition. The Board notes that the RO has since granted service connection for post- traumatic stress disorder (PTSD) in a January 1993 decision. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends the 30 percent rating assigned for postoperative residuals of his left ankle injury does not adequately reflect the current severity of his disability. He says there is no motion in his left ankle since he had surgery on his ankle in 1992 and that this and other symptoms significantly interfere with walking and many other activities. 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 an increased rating for postoperative residuals of a left ankle injury. FINDING OF FACT The postoperative residuals of a left ankle fracture include a solid surgical ankylosis (arthrodesis) of the joint in the neutral (90 degree) position; and the impairment does not exceed that for malunion of the tibia and fibula with marked ankle disability. CONCLUSION OF LAW The criteria for an increased rating for postoperative residuals of a left ankle injury have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4, Codes 5262, 5270 (1993). REASONS AND BASES FOR FINDING AND CONCLUSION I. Factual Background The file contains no service medical records from the veteran's 1968-1969 active duty. He reportedly fractured his left ankle during service in May 1969 while stationed in Vietnam, and he then underwent surgical repair. He was released from active service a few months later, in September of that year. In October 1969, the veteran filed a claim for VA compensation benefits, and he was given a VA orthopedic examination in February 1970. He complained of aching in his ankle joint. Healed post-surgical scars were noted on the inner and outer regions of his left ankle that were slightly adherent to the underlying structures. There was a slight degree of irregularity palpable about the site of the fracture, but no tenderness was elicited objectively. Gait was normal, but dorsiflexion was restricted. X-rays showed healed fractures of the medial malleolus and of the distal fibula shaft, with a screw inserted for fixation. It was noted that the fractures had healed in good position. The diagnosis was Pott's fracture, left ankle, with mild residuals (post operative repair). In April 1970, the RO granted service connection for postoperative residuals of the veteran's left ankle fracture and assigned a 10 percent rating. In March 1971, the veteran was hospitalized at a VA medical center, complaining of intermittent swelling and pain in his ankle. During his hospital stay, he had an operation to remove the screw in the medial malleolus and a rush pin in the lateral malleolus that had been inserted in his left ankle during service. There were no complications, and he was discharged the day following his surgery. The diagnosis was status post bi- malleolar fracture of the left ankle. The ankle was evaluated at a January 1975 VA compensation examination. In March 1975, the RO increased the rating assigned for the left ankle disability from 10 to 20 percent. In August 1975, the veteran was admitted to a VA hospital and underwent surgical fusion (arthrodesis) of the left ankle. In an October 1975 rating decision of the RO, a temporary total rating was assigned under the provisions of 38 C.F.R. § 4.30, covering the period of convalescence that the veteran had following his surgery. The 20 percent rating was reinstated, effective January 1976. While hospitalized at a VA medical facility in October 1976, the veteran had surgery to remove screws from his left ankle and to release peroneal tendons in this area. The final hospital diagnosis was status post bi-malleolar fracture of the left ankle. In December 1976, the RO assigned a temporary total rating covering the veteran's most recent period of convalescence related to his left ankle surgery. The 20 percent rating resumed, effective December 1976. Later medical records, including a January 1984 VA examination, show increased symptoms and the use of an ankle brace. The rating was increased to 30 percent in a February 1984 RO rating decision. Records on file show that the veteran received periodic treatment for his left ankle from the early 1980's to the early 1990's from a private orthopedic surgeon, Stanley E. Grzyb, M.D. On various occasions the ankle was injected, he was given pain medication and orthotics, and bone spurs were excised. Treatment records in 1991, from Dr. Grzyb, Saul G. Trevino, M.D., and others affiliated with University Orthopaedics, Inc., show the prior left tibiotalar ankle arthrodesis was intact, with the joint fused at 90 degrees, although the veteran had left hindfoot pain and subtalar arthritis for which a subtalar arthrodesis was recommended. In January 1992, the veteran was admitted to the Medical Center Hospital of Vermont, for one day, under the care of Dr. Trevino, and he underwent surgery on his left ankle, due to subtalar post- traumatic arthritis. The operation consisted of a left subtalar arthrodesis with left iliac crest bone graft and insertion of two screws in the ankle. There were no complications related to the procedure. He was discharged from the hospital in early February and told to refrain from heavy lifting or putting weight on his left leg. Medications were prescribed. The RO assigned a temporary total rating later in February 1992 covering the veteran's hospitalization and a period of post- surgical convalescence. In subsequent rating actions, this temporary total rating was extended. The 30 percent rating resumed effective July 1, 1992. In a February 1992 statement, Dr. Trevino reported that the veteran would be immobilized for three months following his 1992 surgery and that he would start weight bearing in a cast at the six-week mark. The cast was to be removed three months after the surgery was completed, at which time the veteran would begin using a removable brace. Dr. Trevino commented that the veteran would be able to walk around his house without his brace as soon as he felt comfortable and that he could start weaning from the brace for normal activity. Dr. Trevino expected the healing process to vary anywhere from four to six months. In a May 1992 statement, Dr. Trevino indicated that the veteran was experiencing some screw irritation on the lateral aspect of his left heel, that this would be monitored, and that additional surgery to replace the screw might be needed. It was noted that the veteran was currently using a removable cast brace to protect the healing arthrodesis site. At a May 1992 VA examination, the veteran presented wearing a removable cast brace to protect his arthrodesic site. He complained of screw irritation at the site of the left lateral heel. On physical examination of his ankle, there was a 23 cm J- shaped scar over the lateral malleolus, and an 11 cm scar over the medial malleolus. He had plantar flexion from 0-10 degrees. There was no dorsiflexion, and medial and lateral range of motion was 0 degrees. There was some postoperative swelling present, and measurement of the calves revealed a calf circumference of 33 cm for the left leg, compared to 39 cm for the right leg. X-rays showed post surgical changes with resultant fusion of the left ankle joint and tibia and fibula. The diagnosis was status post fracture with post-traumatic arthritis, with subsequent left ankle arthrodesis with iliac crest bone graft and screw placement; atrophy of the left calf. It was noted by the examining physician that the veteran was still convalescing at the time of his examination and that he was expected to remain in a short leg removable cast brace anywhere from six to nine months. It was also noted that additional surgery might be needed to remove the screws which were holding the arthrodesis in place. A subsequent May 1992 treatment record from Dr. Trevino indicates the veteran still had complaints of irritation from the surgical screw on the lateral aspect of the left ankle and that this area was tender, although most of the pain was located over the anterior aspect of the ankle joint. The veteran also complained of some trouble walking, although it was noted the ankle was fused. High-top sneakers were recommended, and possible replacement of the irritating surgical screw was planned. At an October 1992 hearing, the veteran testified that since his last ankle fusion, there was less flexibility or mobility of the ankle, which did not bend like a normal one. He said that this made walking more difficult, especially when going up and down stairs and hills; that he had to watch his step when walking, to avoid stumbling; and that it was difficult to operate pedals on vehicles. The veteran stated that the recent surgery had successfully eliminated pain in the subtalar joint, although he was experiencing discomfort from protruding surgical screws. He said that the screws were to be replaced by shorter ones in early November 1992 at the Medical Center of Vermont; that he had been told that the procedure would require that he remain in the hospital for less than a day; and that he would submit a medical record of the procedure once it was accomplished. He said he also would submit a letter from Dr. Grzyb. The veteran noted he was a vice president of a family owned building supply company (records show he has had this job for many years), and in this job he was up and down all day, working at the counter and supervising employees in the yard. He said he wore high-top sneakers, as recommended by his doctor, and that he once used a brace because of the left ankle disability, but he found it impractical when performing his job duties. An October 1992 statement from Dr. Grzyb was submitted, in which he reviewed the veteran's prior treatment and noted that the left ankle and subtalar joint were now fused in the neutral position. It was also noted that additional surgery by another doctor was planned for removal of surgical hardware from the subtalar joint. He indicated that, according to the American Medical Association (AMA) impairment guidelines, an ankle arthrodesis in the neutral position results in 30 percent impairment in function of the lower extremity, and a subtalar arthrodesis in the neutral position results in a 10 percent impairment of function of the lower extremity. He said that, after consulting an AMA combined impairment table, the result was a combined 37 percent impairment of function in his left lower extremity, and the whole body impairment was listed as 15 percent. The doctor further commented that over the years the disability had had a profound affect on the veteran's business and personal life. At a November 1992 VA examination, it was noted by the examining physician that the veteran had had surgery, about a week earlier, to remove a screw from his left ankle. The doctor noted the results of range of motion studies conducted at the veteran's last VA examination and compared them to the findings from the current examination. Use of a goniometer for measuring range of motion in the ankle currently showed that the veteran had 2 degrees of plantar flexion, with 0 degrees of dorsiflexion and medial and lateral motion. There was still some postoperative edema present, but the scars were unchanged. The diagnosis was status post fracture, with post traumatic arthritis, subsequent left ankle arthrodesis and iliac crest bone graft, with screw placement, a fixed ankle joint and atrophy of the left calf. A November 1992 report-of-contact form indicates that the veteran contacted his representative and said that he would not be submitting a report from the Medical Center of Vermont, as mentioned at his personal hearing (i.e., the report of the recent treatment for surgical screw replacement); the veteran related that he had been only briefly treated at the facility. II. Legal Analysis The veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented a claim which is not inherently implausible. All relevant facts have been properly developed and, therefore, the VA's statutory duty to assist him in developing evidence pertinent to his claim has been satisfied. Id. Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment in earning capacity a disability in question would cause. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Ankylosis of an ankle warrants a 30 percent evaluation if the ankle is fixed in plantar flexion at an angle between 30 and 40 degrees, or in dorsiflexion at an angle between 0 and 10 degrees. A 40 percent evaluation requires that the ankle be fixed in plantar flexion at an angle of more than 40 degrees; in dorsiflexion at an angle of more than 10 degrees; or with abduction, adduction, inversion, or eversion deformity. 38 C.F.R. Part 4, Code 5270. Malunion of the tibia and fibula of a lower extremity warrants a 30 percent evaluation when the disability results in marked knee or ankle disability. Nonunion of the tibia and fibula warrants a 40 percent evaluation if there is loose motion requiring a brace. 38 C.F.R. Part 4, Code 5262. Essentially, the veteran has no range of motion in his left ankle. His multiple surgeries, including the operation in early 1992, have fused his ankle (arthrodesis, or surgically produced ankylosis) in a fixed position at 90 degrees (i.e., in a favorable neutral position) to allow him to walk and function as best possible. Under the applicable rating criteria, his ankle would have to be locked in plantar flexion at an angle of more than 40 degrees, in dorsiflexion at an angle of more than 10 degrees, or with abduction, adduction, inversion, or eversion deformity, for a higher rating of 40 percent to be warranted. It is clear, however, that none of these criteria has been met. Following the latest ankle fusion in early 1992, all the private and VA medical evidence, especially after the ending to the temporary total convalescent rating, shows good surgical results, with a solid fusion in the neutral position. Under Code 5270, pertaining to ankylosis of the ankle, the veteran clearly does not qualify for an evaluation in excess of the current 30 percent rating. With regard to Code 5262, there is no evidence of nonunion of the tibia and fibula, with loose motion requiring a brace (the 40 percent criteria), despite the fact that he used a brace for support for a period after the 1992 fusion. As the veteran noted at his hearing, he no longer uses the brace, but rather wears high-top tennis shoes recommended by his doctor. X-rays have shown good anatomical alignment in the left ankle and foot area, with solid fusion and no nonunion of the tibia or fibula. The Board appreciates that the veteran has a marked degree of functional impairment from the postoperative left ankle disability, which is tantamount to malunion of the tibia and fibula, but Code 5262 provides that this level of disability is properly rated 30 percent. This rating also contemplates the functional limitations from pain (see 38 C.F.R. §§ 4.40, 4.59), although by the veteran's own hearing testimony it appears that pain has been greatly alleviated by the last fusion. As the veteran has pointed out, the most significant impairment is that the ankle does not bend, inasmuch as the joint has been fused and no longer functions like a normal joint. However, for the reasons already stated, the VA rating schedule does not permit an evaluation higher than 30 percent for this disability. The AMA evaluation guidelines, mentioned in Dr. Grzyb's letter, do not apply to the VA, which, pursuant to federal law and regulation, has its own rating schedule. The veteran's case does not present an exceptional or unusual disability picture, with such related factors as frequent periods of hospitalization or marked interference with employment, as to render impractical the application of the regular schedular rating standards; thus, an increased rating on an extraschedular basis is not warranted. 38 C.F.R. § 3.321(b). In this regard, the Board notes that, notwithstanding a significant left ankle disability, hospitalizations have been infrequent and the veteran continues to successfully perform the job which he has held for many years. The preponderance of the evidence establishes that the left ankle disorder is no more than 30 percent disabling. Thus, the benefit-of-the-doubt doctrine is inapplicable, and an increased rating must be denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER An increased rating for postoperative residuals of a left ankle injury is denied. L. W. TOBIN 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.