BVA9504915 DOCKET NO. 93-12 241 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to an increased (compensable) rating for residuals of a fracture of the left distal fibula. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD R. P. Harris, Counsel INTRODUCTION The appellant had active service from June 1981 to May 30, 1985, May 31, 1985 to June 1989, and August 1989 to May 1990. This matter came before the Board of Veterans' Appeals (Board) on appeal from an October 1991 rating decision of the Los Angeles, California, Regional Office (RO), which, in part, denied service connection for a back disability, and granted service connection and assigned a noncompensable rating for residuals of a fracture of the left distal fibula. Additionally, the appellant expressed disagreement with said October 1991 rating decision which, in part, also granted service connection and assigned a 10 percent rating for residuals, post dislocation of the left shoulder with deformity of the clavicle; and granted service connection and assigned noncompensable ratings for hypertension and scar from laceration of the forehead. In April 1991, a Statement of the Case was issued, which addressed these increased rating issues, and he was informed of the necessity to file a Substantive Appeal specifying, among other information, what benefits he wanted included in his appeal. However, since a timely Substantive Appeal is not of record with respect to the issues of increased ratings for residuals, post dislocation of the left shoulder with deformity of the clavicle, hypertension, and scar from laceration of the forehead, the Board lacks jurisdiction of these issues. Accordingly, the Board will render a decision restricted to the issues delineated on the title page of this decision. Statements by the appellant in his Substantive Appeal are construed as an intention to request service connection for headaches. Since this issue has not been developed, it is referred to the RO for appropriate action. Kellar v. Brown, 6 Vet.App. 157 (1994). CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in essence, that he has a chronic back disability manifested by painful restricted motion, and that this has been nearly continuous since he injured the back in military service. He argues that his left ankle disability warrants a compensable rating, since it is manifested by pain and swelling, which prevents prolonged standing and ambulation and adversely affects strenuous manual labor. It is contended that his ankle was not typically painful and swollen on the date of Department of Veterans Affairs (VA) examination, and that the examination did not assess the ankle under weight bearing or similar conditions. It is requested that the benefit of the doubt doctrine be applied. 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 appellant'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 appellant has not met the initial burden of submitting evidence to justify a belief by a fair and impartial individual that the claim for service connection for a back disability is well-grounded. Additionally, the preponderance of the evidence is against allowance of a compensable evaluation for residuals of a fracture of the left distal fibula. FINDINGS OF FACT 1. All available, relevant evidence necessary for disposition of the appeal has been obtained by the RO. 2. During service, the appellant was treated for back symptoms. However, a chronic back disability has not been clinically shown in service or subsequent thereto. 3. The appellant's residuals of a left ankle fracture are manifested primarily by normal plantar flexion, no more than moderate limitation of dorsiflexion of that ankle, and radiographic findings of an intact ankle mortise. No more than mildly restricted overall ranges of motion of that ankle have been clinically shown. There is no recent clinical evidence of gait impairment, or painful motion, swelling, deformity, or tenderness of that ankle. CONCLUSIONS OF LAW 1. The appellant has not submitted evidence of a well-grounded claim for entitlement to service connection for a chronic back disability. 38 U.S.C.A. §§ 1131, 5107(a) (West 1991); 38 C.F.R. § 3.303 (1994). 2. The criteria for a compensable evaluation for residuals of a fracture of the left distal fibula have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, 4.20, 4.40, 4.71a, Code 5271 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection for a Back Disability The threshold question to be answered is whether the appellant has presented evidence of a well-grounded claim with respect to the issue of service connection for a chronic back disability. A well-grounded claim is one which is plausible, meritorious on its own, or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78 (1990). In Tirpak v. Derwinski, 2 Vet.App. 609 (1992), the United States Court of Veterans Appeals (Court) held that the appellant in that case had not presented a well-grounded claim as a matter of law. The Court pointed out that "unlike civil actions, the Department of Veterans Affairs (previously the Veterans' Administration) (VA) benefits system requires more than just an allegation; a claimant must submit supporting evidence." Tirpak at 611. If a well-grounded claim has not been presented, the appeal with respect to that issue must fail. The Court in King v. Brown, 5 Vet.App. 19, 21 (1993) held that "evidentiary assertions [by the veteran] must also be accepted as true for the purpose of determining whether the claim is well grounded. Exceptions to this rule occur when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion." In this case, the evidentiary assertions as to the claim of service connection for a chronic back disability are either inherently incredible or beyond the competence of the person making the assertions, as will be explained. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by peacetime service. 38 U.S.C.A. § 1131. In pertinent part, for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 3.303(d). The appellant alleges that he has a chronic back disability related to military service. He had approximately nine years of military service, and it is uncontroverted that he sought medical treatment for his back on a few isolated occasions during service. A critical issue for resolution is whether there is competent evidence indicating that he has a chronic back disability in order to constitute a well-grounded claim. The appellant's service medical records reflect that in March 1982 he complained of a two-day history of upper back pain, apparently after lifting weights. Muscle strain was assessed. On follow-up visits that month, strain was noted to be resolving. In December 1982, he complained of a five-day history of low back pain. Clinically, low back muscle spasms were reported, and it was noted that he was obese with lack of muscle tone. Lower lumbar spasms were assessed. In September 1984, he complained of a one-day history of thoracic pain. Mild back strain was assessed. However, on examination for service separation in April 1985, there were no pertinent complaints, findings, or diagnoses. Significantly, in an attendant medical questionnaire dated in April 1985, the appellant denied having recurrent back pain, and a physician's elaboration made no reference to chronic back disability. In September 1985, the appellant complained of a three-day history of low back pain, after being very physically active. Clinically, there were muscle spasms in the lower thoracic and upper lumber region of the back. Neurologic and radiographic findings were negative. Low back pain with possible strain was assessed. However, during the remainder of his approximately four and a half years of service, when he sought and received treatment for various ailments, there were no complaints, findings, or diagnoses related to a chronic back disability. In fact, on an August 1989 reinlistment examination, there were no clinical findings of or diagnoses for a back disability, and, in an attendant medical questionnaire, he denied having recurrent back pain. Thus, the Board concludes that any back symptoms he may have had in service were acute and transitory, and resolved therein without residual disability. 38 C.F.R. § 3.303. The earliest postservice reference to a back disability was not until March 1991, when the appellant applied for VA disability benefits, and referred to a December 1982 back injury. He made no mention of any postservice treatment for his back. A VA examination report dated in May 1991 reflected that he complained of occasional back pain since experiencing low back strain while lifting in 1982. However, clinically, there was no evidence of tenderness or muscle spasm of the back. Back range of motion measurements were slightly decreased on extension and left lateral flexion but were otherwise normal; extremes of motion, except for rotation, were accompanied by complaints of discomfort. Nevertheless, a straight leg raising test was negative for any low back pain; and some discomfort was reported in the posterior thighs, not the back. Additionally, x-rays of the back revealed no pertinent abnormalities. Most importantly, the examiner's impression was low back pain. Service connection may be granted for chronic disease or disability, not subjective complaints or acute symptoms. Rabideau v. Derwinski, 2 Vet.App. 141 (1992). Since there are no clinical findings of back pathology, and low back pain is a subjective complaint, not a disease or disability, his claim that he has a chronic back disability is not shown to be well-grounded based upon this examination. The appellant is not qualified to offer medical opinion or diagnosis. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Since there is no competent or credible evidence of a chronic back disability, the claim is not well-grounded. Grottveit v. Brown, 5 Vet.App. 91 (1993); Grivois v. Brown, 6 Vet.App. 136 (1994). II. An Increased (Compensable) Rating for Residuals of a Fracture of the Left Distal Fibula The Board finds that the appellant's claim with respect to the issue of an increased (compensable) rating for residuals of a fracture of the left distal fibula is "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a), in that he has presented a claim which is plausible. This being so, the Board must examine the record and determine whether the VA has any further obligation to assist in the development of his claim. 38 U.S.C.A. § 5107(a). After reviewing the record, the Board is satisfied that all relevant facts have been properly developed and no useful purpose would be served by remanding the case with directions to provide further assistance to the appellant. A comprehensive medical history and detailed findings with respect to residuals of his fracture of the left distal fibula are documented in the medical evidence. The service medical records adequately detail the circumstances and nature of the fracture of the left distal fibula and treatment therefor. A VA examination was conducted in May 1991, which is sufficiently detailed and comprehensive regarding the nature and severity of the disability in issue, and provides a clear picture of all relevant symptoms and findings. Contrary to the appellant's assertions, that examination assessed the ankle disability under appropriate conditions, including weight bearing, as indicated by the examiner's assessment of his gait. Given the rather minor residuals of the fracture to the left distal fibula shown in service, the subsequent VA examination findings documenting a relatively static level of healing of the residuals thereof, and the fact that the appellant has not alleged that more recent, material treatment records exist, the Board concludes that the duty to assist the appellant as contemplated by the provisions of 38 U.S.C.A. § 5107(a) has been satisfied with respect to this issue on appeal. Disability evaluations are determined by application of a schedule of ratings which is based on average impairment of earning capacity under the VA's Schedule for Rating Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The Board has reviewed the entire history of the service-connected disability of the left distal fibula as it affects the ordinary conditions of daily life, including employment, as required by 38 C.F.R. §§ 4.1, 4.2, 4.10 and other applicable provisions. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). The appellant's service medical records reveal that in August 1983, he sustained a left ankle fracture due to a fall. X-rays revealed a minimally displaced fracture of the distal fibula with the fracture line extending into the joint. The leg was casted that month. Significantly, the remainder of his service medical records, over a several-year period, made no reference to symptomatic residuals of that left ankle fracture. A VA examination report dated in May 1991 reflects that the appellant complained of pain and swelling of the left ankle. However, he related these symptoms to prolonged standing more than two hours or jogging. Clinically, there was no evidence of tenderness, swelling, or deformity of that ankle. Moreover, gait was described as normal. X-rays of the ankle revealed an intact ankle mortise and no significant abnormalities. Plantar flexion was a normal 45 degrees, and dorsiflexion was to 10 degrees. Normal ranges of motion of the ankle are 0 to 45 degrees' plantar flexion and 0 to 20 degrees' dorsiflexion. 38 C.F.R. § 4.71 (1994), Plate II. While the 10 degrees dorsiflexion was described as full range of motion by the examiner, this degree of motion may more reasonably be characterized as moderate limitation of dorsiflexion, when utilizing the measurements of normal ranges of motion of the ankle set out in 38 C.F.R. § 4.71, Plate II. However, even assuming that the 10 degrees' dorsiflexion represented moderate limitation of that motion, when considered with the normal 45 degrees' plantar flexion, these ranges of motion combined represent no more than mild overall limitation of motion of the left ankle. Moderate limitation of motion of the ankle may be assigned a 10 percent evaluation. A 20 percent evaluation requires marked limitation of motion. 38 C.F.R. Part 4, Code 5271. Since no more than mild overall limitation of motion of the left ankle has been clinically shown, a higher evaluation for residuals of a left ankle fracture would not be warranted under Diagnostic Code 5271. The Board has considered the appellant's complaints referred to in the clinical evidence of record, pertaining to alleged pain and swelling of that ankle. However, the recent objective findings reflect no tenderness or swelling of the ankle, no more than mild overall limitation of motion of the left ankle, a normal gait, and clinical and radiographic evidence indicative of a healed ankle fracture without deformity or malunion. It should be pointed out that the provisions of Diagnostic Code 5262 for nonunion or malunion of the tibia and fibula are not applicable, since the service-connected fracture of the left ankle did not result in nonunion or malunion of the fracture site. The disability picture in question does not more nearly approximate the criteria for a compensable evaluation for the left ankle fracture, since no more than mild overall limitation of motion of that ankle has been demonstrated. 38 C.F.R. § 4.7. The Board has considered the provisions of 38 C.F.R. §§ 4.10 and 4.40, but there is no significant functional impairment (such as altered gait) attributable to the service-connected residuals of a fracture of the left ankle. The examination did not reflect any indicia of pain on walking and the examiner expressly stated that there was no painful ankle motion shown. See May 1991 VA examination report. An extraschedular evaluation is not warranted, since the evidence does not show that the residuals of a left ankle fracture present such an unusual or exceptional disability picture with marked interference with employment or frequent periods of hospitalization as to render the regular standards impractical. 38 C.F.R. § 3.321(b)(1). Given the fact that the service-connected left ankle disability does not produce more than mild overall restricted motion or any gait impairment, and he remains employed as a contract purchasing agent, it could not be reasonably characterized as markedly interfering with industrial functioning. On the recent examination he reported losing one weeks' work during his employment from May to August 1990, but that was due to dehydration, not to ankle disability. Additionally, that disability has not required frequent periods of hospitalization. Since the preponderance of the evidence is against allowance of this issue, the benefit of the doubt doctrine is inapplicable. 38 U.S.C.A. § 5107(b) (West 1991). ORDER The appellant's claim of entitlement to service connection for a chronic back disability is dismissed. A compensable evaluation for residuals of a fracture of the left distal fibula is denied. HOLLY E. MOEHLMANN 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.