BVA9502279 DOCKET NO. 93-05 924 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES Entitlement to an increased rating for the residuals of a gunshot wound of the left knee, currently rated as 10 percent disabling. Entitlement to an increased (compensable) rating for the residuals of a fracture of the left fibula. REPRESENTATION Appellant represented by: Georgia Department of Veterans Service ATTORNEY FOR THE BOARD Michael Martin, Counsel INTRODUCTION The veteran had active service from May 1942 to October 1945, from November 1945 to November 1948, and from February 1949 to January 1958. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of April 1991 by the Department of Veterans Affairs (VA) Atlanta, Georgia, Regional Office (RO). CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO made a mistake by failing to assign a rating higher than 10 percent for his residuals of a gunshot wound of the left knee. He asserts that the disorder is much more than 10 percent disabling. He reports that the disorder causes severe pain which prevents him from sleeping at night and from walking any distance. The veteran also contends that the RO made a mistake by failing to assign a compensable rating for his residuals of a fracture of the left fibula. He asserts that this disorder also is painful. 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 both of the veteran's claims. FINDINGS OF FACT 1. The residuals of a gunshot wound of the left knee are productive of no more than slight impairment of the knee. 2. The residuals of a fracture of the left fibula have not caused malunion and are not productive of functional impairment. CONCLUSIONS OF LAW 1. The criteria for a disability rating higher than 10 percent rating for the residuals of a gunshot wound of the left knee are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Code 5257 (1993). 2. The criteria for a compensable rating for the residuals of a fracture of the left fibula are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.31, 4.71a, Diagnostic Code 5262 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has found that the veteran's claims are "well-grounded" within the meaning of 38 U.S.C.A. § 5107 (West 1991). That is, his claims are not inherently implausible. The Board is also satisfied that all relevant facts have been properly developed. The veteran has been afforded a disability evaluation examination by the VA, and his medical treatment records have been obtained. The veteran has declined the opportunity to have a personal hearing. The Board knows of no additional evidence which is available. Therefore, no further assistance to the veteran with the development of evidence is required. I. Entitlement to an Increased Rating for Residuals of a Gunshot Wound of the Left Knee. The Board has considered the full history of the veteran's left knee disability. The veteran's service medical records show that in October 1943, he sustained a gunshot wound to the left knee. The wound entrance was described as being just medial to the popliteal space with the exit above and to the medial side of the knee. The veteran first filed a claim for disability compensation with the VA in February 1958. In a rating decision of June 1959, the RO granted service connection for a gunshot wound of the left knee, and assigned a noncompensable rating for the disorder. In June 1980, the veteran requested an increased rating. The veteran was afforded a disability evaluation examination in September 1980. Subsequently, in a rating decision of October 1980, the RO granted a 10 percent rating for the gunshot wound of the left knee. The 10 percent rating has since been confirmed by the RO in rating decisions of July 1981, and June 1982, by the Board in a decision of March 1983, by the RO in decisions of May 1984, October 1985, July 1986, August 1988, and June 1989, and again by the Board in a decision of January 1990. In November 1990, the veteran requested an increased rating. The RO denied that request, and the veteran perfected this appeal. Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity in civil occupations. See 38 U.S.C.A. § 1155 (West 1991). Separate diagnostic codes identify the various disabilities. Under 38 C.F.R. § 4.71a, Diagnostic Code 5257 (1993), a 10 percent disability rating is warranted where a knee disorder is productive of slight impairment of the knee. A 20 percent rating is warranted where there is moderate impairment. A 30 percent rating is warranted where there is severe impairment. After considering all of the evidence regarding the current severity of the veteran's residuals of a gunshot wound of the left knee, the Board finds that the disorder is not productive of more than slight impairment, and, therefore, that an increased rating is not warranted. Recent VA medical treatment records show that the veteran has reported complaints of pain in the left knee on a few occasions. For example, a VA medical record dated in April 1989 shows that the veteran reported a complaint of having pain in the left knee. A report of a disability evaluation examination conducted by the VA in September 1991 shows that the veteran gave a history of having a gunshot wound to the left knee during service. He said that he was hospitalized for 64 days at that time, but had no surgical repair. He complained of having morning stiffness and some swelling. He also stated that he had some pain at rest and pain on ambulation. He reported that he had ambulated with a cane for the past 18 months. Physical examination revealed no tenderness on palpation, but there was a small amount of effusion. The range of motion of the left knee was from 0 to 140 degrees. The diagnoses included status post gunshot wound to the left knee, and traumatic arthritis of the left knee. An X-ray of the left knee was interpreted as revealing a small spur noted at the peri-articular bone of the patella. There was also mild narrowing of the femoro-tibial joint. The findings may suggest minimal to mild osteolytic changes of the patellofemoral and femoro-tibial articulation. The suprapatellar bursa was within normal limits. When rating an injury to a joint, the rating should reflect the pain associated with movement of the joint. See 38 C.F.R. §§ 4.40, 4.45 (1993). The veteran's complaints of pain, however, are supported only by the small amount of effusion which was noted on the September 1991 VA examination and the X-ray of the veteran's knee which was interpreted as revealing "minimal" and "mild" changes. There was no tenderness, and the range of motion was full. The lack of significant objective findings on examination suggests that the disorder is less than moderate in degree. For these reasons, the Board finds that the residuals of a gunshot wound of the left knee are productive of no more than slight impairment of the knee. Accordingly, the Board concludes that the schedular criteria for a disability rating higher than 10 percent rating for residuals of a gunshot wound of the left knee are not met. The Board further finds that an increased rating is not warranted extra-schedular under 38 C.F.R. § 3.321(b)(1) (1993). The disorder is not shown to present an unusual or exceptional disability picture with such related factors as marked interference with employment or frequent periods of hospitalization so as to render impractical the application of the regular schedular standards. Accordingly, the Board concludes that a rating higher than 10 percent is not warranted on either a schedular or extra-schedular basis. II. Entitlement to an Increased Rating for Residuals of a Fracture of the Left Fibula. The Board has considered the full history of the veteran's residuals of a fracture of the left fibula. The veteran's service medical records show that in April 1945, he sustained a fracture of the lower end of the left fibula after being hit by a truck. The fracture was treated and apparently healed. The veteran first filed a claim for disability compensation with the VA in February 1958. In a rating decision of June 1959, the RO granted service connection for residuals of a fracture of the left fibula, and assigned a noncompensable disability rating. The rating has remained at that level since that time. The rating was confirmed by the Board in a decision of January 1990. In November 1990, the veteran requested increased disability compensation. The RO denied that request, and the veteran perfected this appeal. Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity in civil occupations. See 38 U.S.C.A. § 1155 (West 1991). Separate diagnostic codes identify the various disabilities. Impairment of the tibia and fibula is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5262 (1993). Under that diagnostic code, a 10 percent disability rating is warranted where there is malunion of the tibia and fibula with slight knee or ankle disability. Under 38 C.F.R. § 4.31 (1993), a noncompensable rating is warranted where the residuals required for minimum schedular evaluation are not shown. After considering all of the evidence regarding the current severity of the residuals of a fracture of the left fibula, the Board finds that a compensable rating is not warranted. Some VA medical treatment records show that the veteran has complained of pain in his left leg. Under 38 C.F.R. § 4.40 (1993), a rating should reflect pain associated with a service- connected injury. The complaints of pain, however, must be supported by adequate pathology. Id. Such pathology is not shown in this case. In this regard, the Board notes that a report of a VA disability evaluation examination shows that an X- ray of the left fibula was interpreted as showing no bone abnormalities or fracture of the fibula of the left leg. Following physical examination, no abnormalities pertaining to the left lower fibula were noted in the VA examination report. Thus, the residuals of a fracture of the left fibula have not caused malunion and are not shown to be productive of functional impairment. Accordingly, the Board concludes that the criteria for a compensable rating for residuals of a fracture of the left fibula are not met. The Board also finds that a compensable rating is not warranted on an extra-schedular basis under 38 C.F.R. § 3.321(b)(1) (1993). The disorder is not shown to present an unusual or exceptional disability picture with such related factors as marked interference with employment or frequent periods of hospitalization so as to render impractical the application of the regular schedular standards. Accordingly, the Board concludes that a compensable rating is not warranted on either a schedular or extra-schedular basis. ORDER An increased rating for residuals of a gunshot wound of the left knee, currently rated as 10 percent disabling, is denied. An increased (compensable) rating for residuals of a fracture of the left fibula is denied. JACQUELINE E. MONROE 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.