BVA9501831 DOCKET NO. 93-06 860 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to an increased evaluation for arthrodesis of the right ankle, residuals of shell fragment wounds, currently evaluated at 20 percent. 2. Entitlement to an increased evaluation for shell fragment wound scars of the medioposterior right knee joint, currently evaluated at 10 percent. 3. Entitlement to a compensable evaluation for residuals of fractures of the 4th and 5th metatarsals of the right foot. 4. Entitlement to a compensable evaluation for residuals of shell fragment wounds of the soft tissue of the left foot. 5. Entitlement to a compensable evaluation for residuals of shell fragment wounds of the soft tissue of the left hip. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Raymond F. Ferner, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a May 1991 rating decision of the Department of Veterans Affairs (VA) Regional Office in Phoenix, Arizona (RO), which denied the benefits sought on appeal. The veteran, who had active service from August 1966 to September 1969 appealed that decision to the BVA, and the case was received at the Board in March 1993. In a statement submitted by the veteran and his representative in February 1991, the veteran requested a reevaluation of all of his service-connected disabilities. Not all of the veteran's service-connected disabilities were reevaluated, but at a personal hearing no objection was raised by the veteran's representative or the veteran when the hearing officer specified the issues on appeal as those set forth on the title page of this decision. In any event, the matter of an increased evaluation for any of the veteran's other service-connected disabilities has not been prepared or certified for appellate review. Should the veteran desire a reevaluation of any of those other disabilities, he or his representative should so inform the RO. In a VA Form 21-4138 (Statement in Support of Claim) submitted in January 1992, the veteran requested consideration of additional claims for service connection and an increased evaluation for his service-connected left arm disability. In an October 1992 letter the RO requested medical evidence pertaining to one of the claims for service connection and the claim for an increased evaluation. In December 1992 the RO informed the veteran that those two claims had been denied because the requested evidence was not submitted. A notice of disagreement is not of record with respect to the denial of those two claims, but further action is necessary with respect to the other two claims for service connection submitted in January 1992. This matter is referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran essentially contends that the RO was incorrect in not granting the benefits sought on appeal. The veteran essentially contends that the evaluations assigned for the service-connected disabilities at issue on appeal do not accurately reflect the severity of those disabilities. He asserts that his disabilities have increased in severity and produce more pain and functional impairment than is reflected by the evaluations. Reference is made to the evidence of record as supporting these contentions. Therefore, a favorable determination has been requested. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed all of the evidence of record. Based on a review of the evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence supports the assignment of a 30 percent evaluation for arthrodesis of the right ankle, residuals of shell fragment wounds; is against the claim for an evaluation in excess of 10 percent for shell fragment wound scars of the medioposterior right knee joint; supports the assignment of a compensable evaluation for residuals of fractures of the 4th and 5th metatarsals of the right foot; supports the assignment of a 10 percent evaluation for shell fragment wounds of the soft tissue of the left foot; and supports the assignment of a 10 percent evaluation for shell fragment wounds of the soft tissue of the left hip. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The recent VA and private examinations disclosed the veteran's right ankle is fused with no more than 5 degrees of motion. 3. The veteran's right ankle arthrodesis is comparable to ankylosis of the ankle in plantar flexion between 30 degrees and 40 degrees, or in dorsiflexion between 0 degrees and 10 degrees. 4. The veteran's right knee shell fragment wounds are not shown to produce limitation of right knee extension to 15 degrees, limitation of flexion to 30 degrees or moderate recurrent subluxation or lateral instability. 5. Fractures of the 4th and 5th metatarsals of the right foot manifest tenderness and are productive of moderate impairment of the foot. 6. Shell fragment wound residuals of the left foot manifest tenderness at the metatarsophalangeal joint, metallic fragments in the soft tissues of the foot, and damage to Muscle Group X, and are productive of moderate impairment of the foot. 7. Shell fragment wound residuals of the left hip manifest retained metallic foreign bodies, and slight limitation of motion, which is compatible with or analogous to moderate damage to Muscle Group XIV. CONCLUSIONS OF LAW 1. The schedular criteria for a 30 percent evaluation for arthrodesis of the right ankle, residuals of shell fragment wounds, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1-4.14, 4.40-4.56, 4.71, 4.71a, Diagnostic Codes 5270, 5271 (1993). 2. The schedular criteria for an evaluation in excess of 10 percent for shell fragment wound scars of the medioposterior right knee joint have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1-4.14, 4.40-4.56, 4.71, 4.71a, Diagnostic Codes 5257, 5260, 5261, 4.118, Diagnostic Code 7805 (1993). 3. The schedular criteria for a 10 percent evaluation for residuals of fractures of the 4th and 5th metatarsals of the right foot have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1-4.14, 4.40-4.56, 4.71a, Diagnostic Code 5284 (1993). 4. The schedular criteria for a 10 percent evaluation for residuals of shell fragment wounds of the soft tissue of the left foot have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1-4.14, 4.40-4.56, 4.71a, Diagnostic Code 5284, 4.73, Diagnostic Code 5310 (1993). 5. The schedular criteria for a 10 percent evaluation for residuals of shell fragment wounds of the soft tissue of the left hip have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1-4.14, 4.40-4.56, 4.71, 4.71a, Diagnostic Codes 5251, 5252, 4.73, Diagnostic Code 5314 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a preliminary matter, the Board finds the veteran's claims are "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990); Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). That is, the Board finds the veteran's claims are not implausible when his contentions and the evidence of record are viewed in the light most favorable to those claims. The Board is also satisfied that all relevant facts have been properly and sufficiently developed. I. Background While serving in Vietnam the veteran sustained multiple injuries in August 1968 when he was wounded by a booby trap. Those injuries included multiple shell fragment wounds of his lower extremities and fractures of the 4th and 5th metatarsals of his right foot. Service medical records indicate that the wounds were debrided on the day of the injury and that by mid-October 1968 all of the wounds had healed with the exception of two small wounds on the anterior aspect of the right ankle. The veteran was described as having a considerable decrease in the range of motion of his right foot and a considerable amount of pain and discomfort in the right ankle. In March 1969 the veteran underwent a Charnley compression arthrodesis of the right tibiotalar joint, and 10 weeks post fusion of the right ankle there was a clinical union of the tibiotalar joint and X-rays confirmed a satisfactory union. A hospital record pertaining to the hospitalization of the veteran from September 1968 to June 1969 described the veteran's lower extremity scars as consisting of: "Five scars of the left anterior thigh, measuring 1 inch to 3 inches, all well healed and nontender. There is a 7-inch, well-healed scar in the right medial thigh. There is a 6-inch, well-healed scar in the right medial calf. There is a 1-inch, tender scar over the right medioposterior knee joint, indurated and adherent to underlying tissues. There is a 5 3/4-inch scar transversely across the right foot and a 3-inch scar over the anterior right ankle; well healed and nontender." The veteran was also noted to have 1/2-inch quadriceps atrophy on the right and 7/8-inch atrophy on the right calf, and increased soft tissue edema of the right ankle. There was also an absent dorsalis pedis pulse on the right. The arthrodesis of the tibiotalar joint resulted in the foot being in the neutral position with a full range of motion of the subtalar joint and forefoot joints. The veteran was separated from service due to his multiple wounds which were listed in the medical board proceedings as: (1) Multiple fragment wounds of all four extremities with loss of left testicle, (2) absence of the left testicle secondary to diagnosis number one; (3) absence, surgically acquired, small finger, left, dominant as a result of wounds and surgical treatments, (4) arthrodesis, right ankle, favorable, surgically acquired treatment of multiple fragment wounds, (5) cicatrix, adherent to deep tendons, knee joint, right posterior with tenderness, (6) laceration, femoral artery, left, treated by saphenous vein graft, (7) fracture, compound, comminuted, articular surface, left radius, healed with grip weakness, (8) laceration of extensor tendons, left forearm, and (9) weakness, flexor muscles, forearm and hand, left. Following service, a January 1970 rating decision granted service connection for five disabilities based on a review of the service medical records, including limitation of motion of the right ankle, residuals of shell fragment wounds, evaluated as 20 percent disabling and scars of the right medioposterior knee joint, evaluated as 10 percent disabling. A VA examination performed in March 1970 disclosed the veteran's pertinent complaints included fatigue-type pain in the right leg and an inability to bend the right ankle. Physical examination of the veteran's lower extremities disclosed extensive, but superficial, skin scars in the posteromedial aspect of the right thigh which did not interfere with muscle action or knee or hip joint motion. There was slight irregularity and tenderness in the lower third of the right tibia and two scars on the right calf. The right calf was approximately 1 inch greater in circumference than the left which was due to edema rather than muscle size. There was one incisional scar over the anterior aspect of the right ankle and there was no tibiotalar motion present and the ankle was described as in solid fusion. The fracture of the tibia in the lower third of the right side was described as practically solid. There were two incisional scars on the inner surface of the thighs which were the site of vascular transplants which were described as well healed and nontender. The dorsalis pedis pulsation was lost in the right foot, but the posterior tibial pulsation was present. Heel and toe walking could not be performed because of fusion of the right ankle. There was minimal shortening of the right lower extremity present. The pertinent diagnoses following that examination were of a healed fracture of the lower third of the right tibia, surgical arthrodesis of the right ankle, scars of the medial aspect of both thighs with multiple scars of the right lower extremity, and loss of right dorsalis pedis pulsation. The examiner commented that there was moderately severe limitation of use of the right lower extremity. Following that examination, a June 1970 rating decision reevaluated the veteran's multiple disabilities and added one disability pertinent to the present appeal. Service connection was added for residuals of fractures of the 4th and 5th metatarsals of the right foot, with a noncompensable evaluation assigned. These evaluations have remained in effect since that evaluation, but following a March 1991 VA examination a May 1991 rating decision conceded service connection for shell fragment wounds of the soft tissue of the left foot and shell fragment wounds of the soft tissue of the left hip and assigned a noncompensable evaluation for each disability. II. Right Ankle Arthrodesis The veteran is currently assigned a 20 percent evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5271 (1993) for marked limitation of ankle motion. It is apparent from service medical records that the veteran underwent a surgical fusion in his right ankle apparently in a neutral position. Recent VA and private examinations of the right ankle had disclosed there is little, if any, motion in the right ankle. The private examination of the veteran performed in October 1990 performed in connection with the veteran's employment with the U.S. Postal Service by David A. Rand, M.D., revealed no ankle motion at all with "a small jog" in dorsiflexion, plantar flexion, inversion and eversion. During a VA examination performed in March 1991 the veteran was described as having the right ankle fused with only 5 degrees of motion and no motion of the right subtalar joint. There was also a bony enlargement of the right ankle. The Board is of the opinion that this disability picture is more compatible with a 30 percent evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5270 (1993) than with the currently assigned evaluation under Diagnostic Code 5271. Accordingly, a 30 percent evaluation for the veteran's right ankle disability is established. III. Right Knee Shell Fragment Wound Scars The veteran is currently assigned a 10 percent evaluation under 38 C.F.R. § 4.118, Diagnostic Code 7805 (1993) for right knee shell fragment wound scars. The examination performed by Dr. Rand contains no pertinent information concerning the veteran's right knee disability and the VA examination indicates that the right knee is normal. As such, the Board finds that there is no evidentiary basis for an increased evaluation for the veteran's right knee disability. A 10 percent evaluation is provided for scars under 38 C.F.R. § 4.118, Diagnostic Codes 7803 and 7804, and a higher evaluation provided for under Diagnostic Code 7805 would be based on limitation of function of the veteran's right knee. Since physical examination did not disclose any limitation of motion, 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261, or any recurrent subluxation or lateral instability of the knee, 38 C.F.R. § 4.71a, Diagnostic Code 5257, a higher evaluation for the veteran's right knee disability is not shown to be warranted. IV. Fractures of the 4th and 5th Metatarsals of the Right Foot The veteran is currently in receipt of a noncompensable evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5284 (1993) for fractures of the 4th and 5th metatarsals of his right foot. While the VA examination performed in March 1991 contains no pertinent information concerning the residuals of the fractures, the examination by Dr. Rand indicated that there was tenderness of the metatarsal head in the area of the 3rd and 4th toes. As such, resolving reasonable doubt in the veteran's favor, the Board concludes the veteran is entitled to a 10 percent evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5284 (1993). C.f. 38 C.F.R. § 4.59 (1993) ("It is the intention to recognize actual painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.") The Board would also note that the veteran reported that he experienced swelling and pain in his right foot. Transcript at 6-7. Therefore, a 10 percent evaluation is established for this disability. V. Shell Fragment Wound Residuals of the Left Foot A similar analysis would be applied to the shell fragment wound residuals of the veteran's left foot as was applied to the fractures of the toes of the right foot. The examination by Dr. Rand contained no pertinent information pertaining to the left foot, but the VA examination disclosed there was tenderness, but a full range of motion, at the metatarsophalangeal joint of the second toe of the left foot. X-rays disclosed metallic fragments in the soft tissues of the left foot and what appeared to be a flexion abnormality of the fifth toe on the left. Resolving all reasonable doubt in the veteran's favor, the Board finds that the veteran is entitled to a 10 percent evaluation for this disability under either 38 C.F.R. § 4.71a, Diagnostic Code 5284 or by analogy 38 C.F.R. § 4.73, Diagnostic Code 5310. VI. Shell Fragment Wound Residuals of the Left Hip The physical examination performed by Dr. Rand revealed a decreased range of motion of the left hip in all planes. Adduction was performed to 60 degrees, flexion to 90 degrees, extension to 10 degrees, internal rotation to 10 degrees and external rotation to 45 degrees. X-rays disclosed the presence of minimal degenerative changes and what appeared to be retained metallic foreign bodies. The VA examination indicated that there was scarring present in the left hip region with muscle strength described as normal. VA X-rays revealed a large accessory ossicle at the superolateral aspect of the acetabulum and multiple metallic shrapnel fragments in the soft tissues. The Board is of the opinion that the veteran's left hip shell fragment wound residuals warrant a compensable evaluation, and while the limitation of motion reported on the private examination does not appear to warrant a compensable evaluation under 38 C.F.R. § 4.71a, Diagnostic Codes 5251, 5252 or 5253, the Board finds that a 10 percent evaluation may be assigned under 38 C.F.R. § 4.73, Diagnostic Code 5314 (1993). Accordingly, a 10 percent evaluation for the veteran's left hip disability is established. VII. Conclusion In reaching these decisions, the Board has considered the complete history of the disabilities in question as well as the current clinical manifestations and the affect these disabilities may have on the earning capacity of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (1993). The nature of the original injuries has been reviewed and the functional impairment which can be attributed to pain and weakness has been taken into account. 38 C.F.R. § 4.40 (1993). The veteran's disabilities are simply not so severe or productive of such impairment as to warrant a higher evaluation under the applicable diagnostic codes of the Schedule for Rating Disabilities. Furthermore, the Board finds that the disability picture with respect to each of the veteran's disabilities at issue is not so exceptional or unusual so as to warrant evaluations in excess of those currently assigned or to be assigned through implementation of this decision on an extra- schedular basis. There has been no showing that the veteran's disabilities have caused marked interference with employment or necessitated frequent periods of hospitalization, or otherwise "render[s] impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1) 1993). ORDER Subject to the provisions governing the award of monetary benefits, a 30 percent evaluation for arthrodesis of the right ankle, residuals of shell fragment wounds, is granted. An evaluation in excess of 10 percent for shell fragment wound scars of the medioposterior right knee joint is denied. Subject to the provisions governing the award of monetary benefits, a 10 percent evaluation for fractures of the 4th and 5th metatarsals of the right foot is granted. Subject to the provisions governing the award of monetary benefits, a 10 percent evaluation for shell fragment wound residuals of the soft tissue of the left foot is granted. Subject to the provisions governing the award of monetary benefits, a 10 percent evaluation for shell fragment wound residuals of the soft tissue of the left hip is granted. WARREN W. RICE, JR. 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.