Citation Nr: 0001174 Decision Date: 01/13/00 Archive Date: 01/27/00 DOCKET NO. 97-06 422 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for bilateral pes planus. 2. Entitlement to an increased rating for residuals of fracture of the distal right radius, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant INTRODUCTION The veteran had active service from April 1985 to March 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 1991 and June 1995 decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. FINDINGS OF FACT 1. The claims of entitlement to service connection for bilateral pes planus and an increased rating for residuals of a fracture of the distal right radius are plausible and all relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The veteran's bilateral pes planus preexisted service, but underwent an increase in severity during service. 3. The veteran's service-connected residuals of a fracture of the distal right radius are manifested by decreased grip strength of 50 percent, tenderness, soreness, fatigability and weakness in movement secondary to pain approximating favorable ankylosis; unfavorable ankylosis or nonunion of the radius with loss of bone substance are not demonstrated. CONCLUSIONS OF LAW 1. The claims of entitlement to service connection for bilateral pes planus and an increased rating for residuals of a fracture of the distal right radius are well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. Bilateral pes planus preexisted active service and was aggravated during such service. 38 U.S.C.A. §§ 1110, 1153, 5107 (West 1991); 38 C.F.R. § 3.306(b) (1999). 3. The criteria for a 30 percent evaluation for residuals of a fracture of the distal right radius have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, Part 4, Diagnostic Codes 5210, 5212, 5213, 5214, 5215 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Pes Planus As a preliminary matter, the Board finds that the veteran's claim for service connection for bilateral pes planus is plausible and capable of substantiation, and thus well grounded within the meaning of 38 U.S.C.A. § 5107(a). When a veteran submits a well-grounded claim, VA must assist her in developing facts pertinent to that claim. 38 U.S.C.A. § 5107(a). The veteran has been afforded a VA examination and a personal hearing, and treatment records have been obtained. The Board is satisfied that all available relevant evidence has been obtained regarding this claim, and that no further assistance to the veteran is required to comply with 38 U.S.C.A. § 5107(a). The report of the veteran's October 1984 service entrance examination reflects that she had pes planus that was asymptomatic. A November 1990 service medical record reflects that the veteran was seen with complaints of sore arches. Examination showed moderate bilateral pes planus. The assessment included that the pes planus should respond well to arch supports. She was given sneakers to wear for two months and placed on a profile of no prolonged walking, running or aerobics. She was seen again in December 1990 for follow-up for painful arches. Her arch supports were in and she was having them fitted. She was seen again in February 1991 with complaints of painful feet. Her right arch was painful and her right foot was swollen. The assessment was plantar fascia strain and she was given a wooden shoe to wear. The report of her January 1991 service separation examination reflects that she had pes planus. The report of an August 1991 VA orthopedic examination reflects that the veteran had Grade 3 flat feet with rather marked pronation. A July 1992 VA outpatient treatment record reflects the impression of pes planus with plantar fascia strain. Service connection may be granted for disability resulting from disease or injury incurred or aggravated by wartime service. 38 U.S.C.A. § 1110. Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during wartime service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b). At the time of the veteran's entrance into service her pes planus was noted to be asymptomatic. In the fall of 1990 the veteran's pes planus became symptomatic and even though she received inservice treatment, the level of her pes planus disability continued to be greater than it was prior to service because it continued to be symptomatic as is demonstrated by the post service VA examination and treatment record. Since the pes planus underwent an increase in severity during wartime service there is a presumption of aggravation. The record does not contain any evidence to rebut this presumption, noting that during and subsequent to service the veteran's pes planus continued to be symptomatic. Therefore, service connection may be granted for bilateral pes planus on the basis of aggravation. Verdon v. Brown, 8 Vet. App. 529 (1996). II. Right Wrist The Board finds that the veteran's claim for an increased rating for residuals of a fracture of the distal right radius is plausible and capable of substantiation, and thus, well grounded within the meaning of 38 U.S.C.A. § 5107(a). The veteran has been afforded multiple VA examinations and a personal hearing, and treatment and vocational rehabilitation records have been obtained. The Board is satisfied that all available relevant evidence has been obtained regarding the claim, and that no further assistance to the veteran is required to comply with 38 U.S.C.A. § 5107(a). In accordance with 38 C.F.R. §§ 4.1, 4.2 and Schafrath v. Derwinski, 1 Vet. App. 589, (1991), the Board has reviewed the service medical records and all other evidence of record pertaining to the history of the veteran's service-connected disability. The Board has found nothing in the historical record that would lead to the conclusion that the current evidence of record is not adequate for rating purposes. The Board is of the opinion that this case presents no evidentiary considerations, except as noted below, which would warrant an exposition of the remote clinical history and findings pertaining to the disability at issue. Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4. The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The report of an August 1995 VA orthopedic examination reflects that the veteran reported persistent problems with her wrist including aching, pain, soreness, tenderness, occasional swelling, and sometimes paresthesia. Overuse and a lot of repetitive grip and grasping were hard and difficult for her. At times she wore a brace and weather changes bothered it. On examination there was no swelling or deformity. There was some tenderness and soreness over the radial aspect of the wrist. There was excellent full range of motion with excellent grip and grasp. The diagnosis was residuals of fracture of the right wrist. The report of a March 1997 VA orthopedic examination reflects that the veteran continued to report aching, soreness, pain, and tenderness in the radial aspect of the wrist. She was right-handed. She reported difficulties using the wrist and could not do a lot of heavy repetitive grip and grabbing of objects. She wore a brace at times and took medication, including Motrin. On examination there was pain, soreness, aching and tenderness to palpation and pain with motion. Dorsiflexion of the wrist was accomplished to 60 degrees, palmar flexion was to 75 degrees and radial ulnar deviation was to 20 degrees. There was approximately 50 percent reduction in strength in the right hand grip. The diagnosis included residual fracture of right radial styloid. The report of a May 1999 VA orthopedic examination reflects the veteran's complaints of pain, swelling, stiffness, and limited motion. With heavy repetitive use the veteran had increasing soreness and tenderness. The veteran worked as a social worker and was able to do her job. She was able to perform normal daily activities. She wore a brace. On examination there were tenderness and soreness over the distal radius. Dorsiflexion was accomplished to 65 degrees, palmar flexion was to 65 degrees, radial deviation was to 20 degrees, and ulnar deviation was to 40 degrees with pain at the extremes of motion. She had good grip grasp with a 50 percent decrease in grip strength. The diagnosis included residual postoperative fracture of the right wrist. The examiner indicated that the fracture and resulting pain could cause functional limitations with heavy and repetitive use and any change in range of motion could not be recorded unless it was measured at the time of the flare-up. The veteran did have fatigability and weakness in movement secondary to pain. The veteran's service-connected right wrist disability has been evaluated under the provisions of Diagnostic Code 5215 of the Rating Schedule. Diagnostic Code 5215 provides that limitation of motion of the wrist to less than 15 degrees of dorsiflexion or where palmar flexion is limited in line with the forearm, a 10 percent evaluation is for assignment. Diagnostic Code 5214 provides that if there is ankylosis of the wrist of the major extremity that is favorable in 20 to 30 degrees of dorsiflexion, a 30 percent evaluation is for assignment. Unfavorable ankylosis in any position other than palmar flexion or with ulnar or radial deviation warrants a 40 percent evaluation. Diagnostic Code 5213 provides that with loss of supination and pronation with the hand fixed, a 40 percent evaluation is for assignment. Diagnostic Code 5212 provides that a 40 percent evaluation may be assigned for nonunion of the radius in the lower half with false movement. Diagnostic Code 5210 provides that a 50 percent evaluation may be assigned for the major extremity if there is nonunion of the radius and ulna with flail false joint. The 10 percent evaluation assigned under Diagnostic Code 5215 is the maximum schedular evaluation that may be assigned under this diagnostic code. In evaluating the veteran's right wrist disability the Board has considered the provisions of 38 C.F.R. §§ 4.40, 4.45 and 4.59. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. The Board has considered the veteran's testimony and has reviewed records relating to VA treatment. The VA treatment indicates the veteran's ongoing complaints and limitations with respect to her right wrist. With consideration that competent medical evidence indicates that the veteran does experience functional limitations with repeated use and does have fatigability and weakness as well as indicating that she experiences a 50 percent loss of grip strength, and with consideration that the veteran wears a splint on her wrist a substantial portion of time, the Board concludes that the evidence indicates that symptoms associated with the service-connected right wrist disability exceed those symptoms that are provided for in Diagnostic Code 5214. Further, the Board concludes that the evidence is in equipoise with respect to whether or not the symptoms associated with the right wrist disability more nearly approximate the criteria for favorable ankylosis of the right wrist. Diagnostic Code 5214 provides that a 30 percent evaluation will be assigned for favorable ankylosis of the major wrist. In resolving all doubt in the veteran's behalf, a 30 percent evaluation for residuals of a fracture of the distal right radius is warranted. However, a preponderance of the evidence is against an evaluation higher than the 30 percent assigned. In this regard, there is no competent medical evidence that the veteran experiences unfavorable ankylosis of the right wrist, or that she has nonunion with loss of bone or flail false joint. Therefore, a preponderance of the evidence is against an evaluation greater than the 30 percent that has been assigned herein under any other applicable diagnostic code. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board is required to address the issue of entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1999). Only in cases where the issue is expressly raised by the claimant or the record before the Board contains evidence of "exceptional or unusual" circumstances indicating that the rating schedule may be inadequate to compensate for the average impairment of earning capacity due to disability. In this case, consideration of an extraschedular rating has not been expressly raised. Further, the Board has reviewed the veteran's vocational rehabilitation file and the claims file and the record does not contain evidence of "exceptional or unusual" circumstances that would preclude the use of the regular rating schedule. In this regard, the record does not indicate that the service-connected disability has required frequent hospitalizations and the record does indicate that the veteran is employed and maintaining her job. ORDER Service connection for bilateral pes planus based on aggravation is granted, subject to the laws and regulations governing the payment of monetary benefits. An increased rating of 30 percent for residuals of a fracture of the distal right radius is granted, subject to the laws and regulations governing the payment of monetary benefits. MILO H. HAWLEY Acting Member, Board of Veterans' Appeals