BVA9501540 DOCKET NO. 93-08 473 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Francisco, California THE ISSUE Entitlement to an increased rating for residuals of a fracture of the right malleolus, currently rated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. E. Coppola, Associate Counsel INTRODUCTION The veteran served on active duty from March 1964 to March 1967. This matter came before the Board of Veterans' Appeals (Board) on appeal from a rating decision of October 1992 from the San Francisco, California, Regional Office (RO), which denied a rating in excess of 20 percent for service-connected residuals of a fracture of the right malleolus with traumatic arthritis. The RO also denied the claim for a rating in excess of 10 percent for service-connected psoriasis. The veteran did not appeal the latter determination. In May 1990, the RO deferred consideration of a claim for service connection for residuals of Agent Orange exposure pending final regulations governing such claims. This issue is not inextricably intertwined with the issue currently on appeal, and is referred to the RO for further action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO committed error in not granting a rating in excess of 20 percent for service-connected residuals of a fracture of the right malleolus because it did not take into account or properly weigh the evidence of record, including service medical records, Department of Veterans' Affairs (VA) clinical evidence and statements submitted in support of the claim. He maintains that his disability causes constant pain, spasm and aching with walking or standing. He also maintains that the pain and swelling caused by his service-connected disability has resulted in a significant loss of time from employment. He argues that he is not adequately compensated by the current 20 percent rating; therefore, an increase in disability benefits is warranted. 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 claim for a rating in excess of 20 percent for residuals of a fracture of the right malleolus. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the instant appeal has been requested or obtained. 2. Residuals of a fracture of the right lateral malleolus with traumatic arthritis include limitation of ankle motion, crepitus and mild ligamentous laxity with complaints of pain. The ankle is not ankylosed. The evidence does not support a showing of significant functional impairment due to pain. 3. The facts of this case do not present an unusual disability picture with such factors as marked interference with employment or frequent periods of hospitalization. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for residuals of a fracture of the right malleolus have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 3.321(b)(1), Part 4, § 4.71a, Diagnostic Code 5010-5271 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Based upon the veteran's statements in support of increased symptomatology, the Board finds that the claim is well-grounded within the meaning of 38 U.S.C.A. § 5107(a). The evidence of record includes VA medical evidence and statements submitted in support of the claim. The Board finds that all relevant evidence necessary for an equitable disposition of the instant appeal has been requested or obtained. The veteran has not indicated that additional, relevant evidence has not yet been obtained. The facts relevant to the issue on appeal have been properly developed and the statutory obligation of the VA to assist the veteran has been satisfied. Id. The service records show that the veteran was seen for an injury to the right ankle in April 1965. X-ray examination confirmed a fracture of the right ankle for which he was treated with closed reduction and a cast. Follow-up examination in July 1965 revealed that the veteran's condition was asymptomatic and he was discharged to full duty. Examination in December 1965 showed minimal swelling with an impression of possible arthritis. On post-service VA examination in September 1972, there was full range of motion of the ankle and no palpable deformity. X-ray examination revealed a healed fracture of the lateral malleolus of the right ankle. The diagnosis was status-post fracture of the right ankle with minimal persistent traumatic arthritis. Based on these findings the RO granted service connection in November 1972 and assigned a noncompensable disability rating from May 31, 1972. In May 1978, the RO increased the veteran's disability rating to 10 percent. A VA examination at that time showed slight residual symmetrical enlargement of the right ankle as compared to the left. Examination showed 10 degrees of decreased dorsiflexion and 10-to-15 degrees of decreased active plantar flexion as compared to the range of motion of the left ankle. In February 1988, the RO increased the veteran's disability rating to 20 percent. The evidence included a May 1980 report of VA examination which contained a single notation that the right ankle was larger than the left ankle. VA outpatient treatment records dated in December 1987 indicate that the veteran complained of right ankle pain and instability. Examination revealed crepitus on movement but the ligaments were intact. Range of motion was 10 degrees of dorsiflexion and 20 degrees of plantar flexion. X-ray examination revealed traumatic arthritis. The RO concluded that these findings supported an evaluation based on marked limitation of motion. In February 1990, the RO confirmed and continued the 20 percent disability rating. The evidence included a VA outpatient treatment record dated in December 1989. Range of motion testing revealed 10 degrees of dorsiflexion, 30 degrees of plantar flexion and inversion and eversion that were 30 percent of normal. The diagnosis was traumatic arthritis of the right ankle. Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The Board notes that where an increase in a service-connected disability is at issue, the present level of disability is of primary concern. Although review of the recorded history of a service-connected disability is important in making a more accurate evaluation, see 38 C.F.R. § 4.2 (1993), the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, No. 93-76 (U.S. Vet. App. Sept. 27, 1994). The Schedule for Rating Disabilities provides that arthritis due to trauma will be rated on limitation of motion of the affected parts as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Degenerative arthritis, established by X-ray findings, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joints involved. 38 C.F.R. § 5003. Moderate limitation of motion of the ankle warrants a 10 percent rating and marked limitation of motion of the ankle warrants a 20 percent rating, the maximum schedular rating for limitation of motion. 38 C.F.R. §4.71a , Diagnostic Code 5271. The Schedule also provides for a disability rating in excess of 20 percent where there is ankylosis of the ankle. See 38 C.F.R. §4.71a , Diagnostic Code 5270 (1993); see also 38 C.F.R. §4.71, Plate II (1993) (providing a standard measurement for ankylosis and joint motion). The most recent medical evidence includes VA outpatient treatment records which are dated from 1990 to June 1992. The same physician who treated the veteran in December 1989 also examined the ankle in March 1990 and concluded that the examination was unchanged. In April 1990, the veteran complained of worsening symptoms exacerbated by motion and weight bearing. The physician noted mild atrophy of the right calf and crepitus on flexion and extension, but reported that strength was 5/5 in that extremity. Range of motion testing revealed 20 degrees of flexion and extension and 15 degrees of inversion and eversion. The physician commented that aside from the status-post ankle fracture, the right ankle was otherwise within normal limits without objective findings of note or impairment. The remainder of these records do not show treatment of the right ankle until 1992, when the veteran was seen by the same physician who again concluded that the examination was unchanged. These outpatient records show no more than marked limitation of motion of the right ankle on repeated examinations over the course of several years. There is no medical evidence of ankylosis and in April 1990 the physician specifically ruled out objective findings of impairment other than mild atrophy of the right calf, crepitus on flexion and extension and some limitation of motion. This evidence supports the view that the residuals of the service- connected right ankle disability do not warrant more than the current 20 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5010-5271. The veteran also underwent VA orthopedic examination in September 1992. The examination report lists the veteran's complaints and a history of the right ankle disability. He was described as "poorly cooperative." The report shows that X-rays and a complete physical examination of the ankle were performed. The Board finds that the examination report is probative evidence of the current status of the right ankle disability. The Board finds that it is also persuasive evidence that the disability warrants no more than the current 20 percent rating. Examination showed no tenderness, swelling or deformity of the right ankle. Passive range of motion of the right ankle showed dorsiflexion of 10-out-of-10 degrees and plantar flexion of 35-out-of-35 degrees. Inversion was 20-out-of-30 degrees and eversion was 15-out-of-20 degrees. Although there was mild laxity of the lateral collateral ligament, the examiner did not report significant right ankle instability. X-ray examination revealed a well-healed fracture of the distal fibular shaft without evidence of degenerative change or other abnormality of the ankle joint. These findings are consistent with the most recent VA outpatient treatment records and establish that the service- connected residuals include limitation of motion which is no more than marked. 38 C.F.R. §4.71a , Diagnostic Code 5271; see 38 C.F.R. §4.71, Plate II. Although the interpretations of X-rays over the years have been inconsistent at times as to the presence of arthritis, arthritis is service-connected as part of the ankle disability. Inasmuch as arthritis is to be rated on the basis of limitation of motion, the veteran now has the highest schedular rating provided for arthritis of the ankle. 38 C.F.R. Diagnostic Code 5010-5271. Clearly, the ankle has motion in all planes. Accordingly, there is no basis for awarding an increased rating due to ankylosis. For the sake of thoroughness, consideration has also been given to rating the disability under Diagnostic Code 5262 (impairment of the tibia and fibula). Under that code, a 30 percent rating is warranted when there is malunion of the tibia and fibula with marked knee or ankle disability. In this case, there is no evidence of malunion of the tibia and fibula. Moreover, the evidence does not show more than moderate ankle disability, consistent with a 20 percent rating under Diagnostic Code 5262 if that code were to be used. The requirement of marked ankle disability for a 30 percent rating is not met or approximated. With relatively good ankle motion, findings of only mild ligamentous laxity, no recent objective findings of tenderness or swelling, and radiographic findings (in September 1992) of the well-healed fracture, the preponderance of the evidence shows that no more than moderate ankle disability exists. Accordingly, the evidence supports the conclusion that the veteran is adequately compensated by the current 20 percent rating and is not entitled to additional compensation on the basis of functional impairment due to pain. 38 C.F.R. §§ 4.40, 4.45 (1993). The Board finds that the evidence is not evenly balanced and the criteria for a rating in excess of 20 percent for residuals of a fracture of the right malleolus have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, § 4.71a, Diagnostic Codes 5003, 5010, 5271 (1993). The veteran maintains that he is employed in an occupation that requires prolonged standing. He argues that he has lost at least six months of work "over the years" due to pain and swelling of the right ankle. The evidence indicates that the veteran has been employed as a silk screen painter since August 1978. The veteran's statement appears to be made from recollection for a period spanning approximately fifteen years. Apparently, he did not relate this information to the medical professionals who have examined and treated him during that time, and he has not identified or submitted objective evidence in support of his statement. On a VA examination form, apparently prepared in 1984, the veteran did not report any time lost from work during the past 12 months. In 1987, when he was seen at a VA facility complaining of episodes of ankle pain and popping, it was noted that his occupation had been stable for 10 years, with no indication of time lost from work. Medical records created subsequently do not reflect any reference to time lost from work due to the ankle disability. Additionally, the evidence shows that he has not been hospitalized for residuals of his right ankle fracture since active service and that he has sought and received only infrequent medical treatment for the ankle. Consequently, the Board finds that the veteran's right ankle disability does not cause an unusual disability picture (with such factors as marked interference with his employment or frequent hospitalization or treatment for his right ankle disorder) and that an extra-schedular rating is not warranted. 38 C.F.R. § 3.321(b)(1). ORDER Entitlement to a rating in excess of 20 percent for residuals of a fracture of the right malleolus is denied. JANE E. SHARP 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. (Continued on next page) 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.