BVA9502613 DOCKET NO. 93-10 430 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased evaluation for traumatic osteomyelitis in the left tibia with subsequent tibial partial resection and skin grafting of the posterior calf, currently rated 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. S. Freret, Counsel INTRODUCTION The appellant had active military service from June 1954 to May 1956. This appeal comes before the Board of Veterans' Appeals (Board) from a February 1993 rating decision by the Department of Veterans Affairs (VA) St. Petersburg, Florida, Regional Office (RO), which denied entitlement to an evaluation in excess of 10 percent for traumatic osteomyelitis in the left tibia with subsequent tibial partial resection and skin grafting of the posterior calf. CONTENTIONS OF APPELLANT ON APPEAL The appellant asserts that his traumatic osteomyelitis in the left tibia with subsequent tibial partial resection and skin grafting of the posterior calf is more severely disabling than currently evaluated, thereby warranting the assignment of a higher rating. 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 preponderance of the evidence is against the appellant's claim of entitlement to an evaluation in excess of 10 percent for his service-connected traumatic osteomyelitis in the left tibia with subsequent tibial partial resection and skin grafting of the posterior calf. FINDING OF FACT Traumatic osteomyelitis in the left tibia with subsequent tibial partial resection and skin grafting of the posterior calf is shown to be manifested by nighttime pain in the midtibial region and left ankle swelling, without frequent episodes, and without definite involucrum or sequestrum, or discharging sinus or other evidence of active infection. CONCLUSION OF LAW The schedular criteria for an evaluation in excess of 10 percent for traumatic osteomyelitis in the left tibia with subsequent tibial partial resection and skin grafting of the posterior calf are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.2, 4.7, 4.10, 4.71a, Diagnostic Code 5000 (1994). REASONS AND BASES FOR FINDING AND CONCLUSION The provisions of 38 U.S.C.A. § 5107(a) (West 1991) have been met, in that the appellant's claim is well-grounded and adequately developed. Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1994). Separate rating codes identify the various disabilities. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history. 38 C.F.R. § 4.2 (1994). An evaluation of the level of disability present also includes consideration of the functional impairment of the appellant's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (1994). Acute, subacute, or chronic osteomyelitis of the pelvis, vertebrae, or extending into major joints, or with multiple localization or with long history of intractability and debility, anemia, amyloid liver changes, or other continuous constitutional symptoms is assigned a 100 percent evaluation. When osteomyelitis is manifested by frequent episodes, with constitutional symptoms, a 60 percent evaluation is assigned. Osteomyelitis with definite involucrum or sequestrum, with or without discharging sinus, is assigned a 30 percent evaluation. A 20 percent evaluation is assigned for osteomyelitis with discharging sinus or other evidence of active infection within the past five years. When osteomyelitis is inactive, following repeated episodes, without evidence of active infection in the past five years, a 10 percent evaluation is assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5000 (1994). Service medical records show treatment in August and September 1954 for a lacerated wound of the left shin, without artery or nerve involvement, and cellulitis without lymphangitis of the left shin, after being struck by a car on August 24, 1954. W. D., A.G.O. Form NO. 8-24, dated September 25, 1954. VA medical records show that the veteran was hospitalized in October and November 1972 for treatment of his left lower leg, which was covered with an area of thin skin that had developed into what appeared to be a small water blister that would break down frequently from minor trauma, resulting in the drainage of purulent fluid. He gave a history of having been struck by a car in 1954, which had caused blunt trauma to the anterior aspect of the left leg. The diagnosis was a chronic leg ulcer, and the appellant underwent excision of the pretibial ulcer with bi- pedicle flap closure. Split thickness skin grafts were made to the donor sites. VA Form 10-1000, Hospital Summary, for the period from October 5 to November 7, 1972. At a VA medical examination conducted in February 1982, the appellant complained of intermittent swelling of his left leg and occasional sharp pain, 2 to 3 times a week. He indicated that his symptoms sometimes interfered with work, but that he was not taking any medications for his disability. The examination of the left leg revealed normal deep tendon reflexes, a small (3-4 cm.) linear scar in the anterior shin, a skin graft scar (6-7 cm) on the posterior calf, normal strength, slight weakness with flexion of the left lower extremity (considered minimal in nature), complete range of motion in both knees and both ankles, and no evidence of swelling or ulceration. The impression was a history consistent with traumatic osteomyelitis with subsequent tibial partial resection and skin grafting of the posterior calf. VA Form 21-2545, Report of Medical Examination, conducted on February 27, 1982. The appellant underwent a VA examination for his left leg disability in December 1992, at which time he complained of nighttime pain in the midtibial region and moderately severe left ankle swelling from activities and on prolonged standing. He reported no drainage from his wound since his surgery in 1972. Physical examination of the left lower leg revealed evidence of an old anterior extensive wound, as well as a split longitudinally in the "gastroc," with flaps brought up bilaterally to help with soft tissue coverage in the anterior region, leaving an approximately 1 cm. deep defect in the longitudinal raphe of his "gastroc." Range of motion in the left knee was from 0 to 135 degrees, with no tenderness or ligamentous instability in the knee. There was mild tenderness to palpation over the midtibial region without evidence of a sinus or draining region. The left ankle could be dorsiflexed to 20 degrees above neutral and plantar flexed to 45 degrees. Muscle strength was normal in the quadriceps, hamstrings, ankle dorsiflexors, and toe flexor and extensors. The only muscle defect was good plantar flexion, consistent with the disruption of the "gastroc" soleus with a flap. There was some mild sensory deficit in the medial aspect of the left ankle, with no additional neurological deficit noted. X-ray examination revealed a very well-healed midtibial shaft fracture, in about five degrees of apex anterior angulation, with no significant varus/valgus angulation. The examiner stated that he did not see any evidence of involucrum or sequestrum that would be suggestive of osteomyelitis radiographically. The impressions were left tibial open fracture that has healed without current evidence of osteomyelitis and mild "gastroc" soleus muscle strength loss, secondary to flap placement with occasional ankle swelling, secondary to the ensuing venous insufficiency of the surgeries. Report of VA orthopedic examination conducted on December 5, 1992, by K. Rongstad, M.D. The X-rays taken of the left tibia and fibula on December 5, 1992 were also read by the resident radiologist, C. Carruthers, M.D., who indicated that four views of the knee would be helpful to evaluate for osteoarthritis, because the mild loss of articular cartilage demonstrated on the single AP view included in the leg films could not be evaluated adequately on the films provided. The radiologist's impression was mild deformity of the mid-shaft of the left tibia and fibula that was most likely due to prior trauma, with the presence of osteoarthritis unable to be adequately evaluated on the available films. Report of X-ray examination of left tibia and fibula by C. Carruthers, M.D., dated December 9, 1992. After careful and longitudinal review of the medical findings presented in this case, the Board finds that the preponderance of the evidence is against a finding that the appellant's left lower leg disability warrants an evaluation in excess of 10 percent. The clinical findings from the most recent medical evaluation, conducted by the VA in December 1992, show that he had good range of motion in both the left knee and left ankle, and that there was no evidence of a sinus or draining region. The appellant reported that he had not experienced any drainage from the wound since the 1972 surgery. The examiner at the examination stated that there was no evidence of involucrum or sequestrum noted on an X-ray of the left lower leg. Absent evidence of definite involucrum or sequestrum in the left lower leg, or evidence of discharging sinus or other evidence of active infection within the past five years, the Board is unable to identify a basis to grant a higher evaluation for traumatic osteomyelitis in the left tibia with subsequent tibial partial resection and skin grafting of the posterior calf. Although the Board is cognizant of the representative's request for additional examination of the appellant's left lower leg to reconcile the perceived differences or inconclusiveness regarding the readings of the December 5, 1992, X-rays by two VA physicians, we note that Dr. Rongstad reported that he felt there was no evidence suggestive of osteomyelitis, while Dr. Carruthers stated that additional X-rays would be helpful to evaluate whether there was osteoarthritis in the left knee. Osteomyelitis involves inflammation of a bone, whereas osteoarthritis is a non inflammatory degenerative joint disease characterized by degeneration of the articular cartilage, hypertrophy of bone at the margins, and changes in the synovial membrane, with accompanying pain and stiffness. Inasmuch as the issue before the Board at this time is whether the appellant's osteomyelitis deserves a higher evaluation, not whether he has osteoarthritis in the left knee, the Board believes that the evidence now of record is sufficient to evaluate the claim now before us. Consideration has been given to the potential application of the provisions of 38 C.F.R. Parts 3 and 4, whether or not they were raised by the appellant, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). In particular, the evidence does not suggest that the appellant's traumatic osteomyelitis in the left tibia with subsequent tibial partial resection and skin grafting of the posterior calf presents such an exceptional or usual disability picture as to render impractical the application of the regular schedular standards so as to warrant the assignment of an extraschedular evaluation for the disability under 38 C.F.R. § 3.321(b)(1) (1994). For example, it has not required frequent periods of hospitalization, nor does it present marked interference with employment. ORDER An evaluation in excess of 10 percent is denied for traumatic osteomyelitis in the left tibia with subsequent tibial partial resection and skin grafting of the posterior calf. BETTINA S. CALLAWAY 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 so assigned. 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 that 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 that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.