BVA9505150 DOCKET NO. 93-10 850 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an increased rating for right below-the-knee amputation, currently rated as 40 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Michele M. Florack, Associate Counsel INTRODUCTION The veteran served on active duty from June 1966 to September 1968. In addition to the issue on the title page, the veteran may be raising the issue of entitlement to a total disability rating based upon individual unemployability in a statement dated in November 1992. He or his representative have also raised claims for service connection for back, shoulder (previously denied, August 1982), skin condition of underarms, and joints disorders in a statement dated in April 1993. As these particular issues have not been developed for appellate review, and they are not inextricably intertwined with the current appeal, they are not for consideration at this time. Grivois v. Brown, 6 Vet.App. 136 (1994). Thus, they are referred to the Regional Office (RO) for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that an increased rating for his service- connected right below-the-knee amputation is warranted. He claims that since 1991 he has been unable to wear his prosthesis for more than a few days without developing pain, soreness, and ulcerations on his stump. DECISION OF THE BOARD The Board of Veterans' Appeals (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 an increased rating for right below-the-knee amputation. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the instant appeal has been obtained by the RO. 2. The veteran's right below-the-knee amputation permits a prosthesis controlled by natural knee action and has occasional blisters. No thigh amputation has been recommended. CONCLUSION OF LAW The criteria for a disability evaluation in excess of 40 percent for right below-the-knee amputation are not met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. § 3.321(b)(1) and Part 4, Diagnostic Code 5165 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board finds initially that the veteran's claim is "well grounded" or plausible within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). The Board also finds that the facts relevant to the issue on appeal have been properly developed and that the statutory obligation of the VA to assist the veteran in the development of his claim has been satisfied. 38 U.S.C.A. § 5107(a) (West 1991). In that regard, the Board notes that all outpatient treatment records identified by the veteran were sought by the RO. Outpatient treatment records for the period January 1993 through January 1994 were received directly by the Board in February 1994. A waiver of RO consideration was obtained from the veteran's representative, Disabled American Veterans, in February 1995. On appellate review, there appear to be no areas in which further development might be fruitful. Any analysis and evaluation of disability must begin with a historical review of the extent of the original traumatic injury, and the course of the residual disability in the ensuing years. 38 C.F.R. §§ 4.1, 4.2, 4.40, 4.41 (1994); Schafrath v. Derwinski, 1 Vet.App. 589 (1991). The veteran's right leg was amputated below the knee in February 1968 as a result of a two truck collision in service. In addition to the amputation of the right leg, the veteran sustained a fracture to the left 2nd metatarsal. Service connection has been in effect since September 1968 for the right below-the-knee amputation, evaluated as 40 percent disabling. The veteran has also been in receipt of special monthly compensation pursuant to 38 U.S.C.A. § 1114(k) (West 1991) for the anatomical loss of a foot since September 1968. See 38 C.F.R. § 3.350(a) (1994). The veteran now seeks an increased rating for his right below- the-knee amputation based on his report of difficulty with wearing his prosthesis. VA outpatient treatment records from February 1992 reflect that the veteran complained of "blisters" on his stump. He was treated with antibiotic ointment. In a statement from D. Heasley, a certified prosthetist, dated in March 1992, epidermis cysts were described on the veteran's right leg, above the thigh lacer of his prosthesis and at the knee joint. However, neither cyst was at a contact point with the prosthesis. VA outpatient treatment records from an orthopedic clinic dated in April 1992 show that the veteran had developed sores on his stump and was unable to wear his prosthesis for 4 weeks while they healed. A physical examination revealed a well-healed stump, pitted scarring and sebaceous-type cysts extruding "cheesy material" on the posterior distal medial thigh. The impression was that the cysts developed under the leather straps of the prosthesis. A skin condition was diagnosed, and an antibiotic and topical medications were prescribed. On VA examination in May 1992, the veteran complained of a recent inability to wear his prosthesis due to a cyst. The cyst was not apparent to the examiner at the time of the examination. Pain was reported on the posterior thigh above the contact of the prosthesis. On examination, the stump measured approximately 9 cm from the posterior mid-knee. There was redness over the patellar area without any actual cellulitis. No ulceration was noted and minimal soreness was reported. There was an essentially normal range of motion of the right hip. The diagnosis was right below-the-knee amputation with recent history of pain disability and inability to wear his artificial leg (as reported by the veteran.) An undated letter received in September 1992 from I. Levenson, M.D., reported the fee-basis physician's evaluation of the veteran's right below-the-knee amputation. On physical examination the veteran had double comedos and deep atrophic scars on the right thigh and erosions with redness in a line on the inner right thigh in the pattern of the prosthesis strap. There were also three erosions of the tip of the stump and one erosion on the bend of the knee on the right medial side. The stump otherwise worked well. The recommendation was that the prosthesis be adjusted to be more comfortable for the veteran. Evidence submitted directly to the Board includes VA outpatient treatment records from January 1993 to January 1994. In January 1993, the veteran's stump was described as cold and "purplish in color" with 3 superficial ulcerations. The veteran reported the condition "on and off" for 4 weeks. The problem was identified as an ill-fitting prosthesis, possibly due to weight gain. He was fitted for a new prosthesis. In June 1993, adjustments to the prosthesis were made, and in September 1993, the prosthesis was reviewed and deemed acceptable. In January 1994, the prosthesis fit was good, but the right leg length was identified as 1 1/2 inch too short. A heel wedge was proposed. Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1994). Separate diagnostic codes identify the various disabilities. Amputations of the lower extremity are evaluated under 38 C.F.R. § 4.71 (1994). A 60 percent evaluation is assigned for a leg amputation when there is a defective stump and a thigh amputation is recommended, or when the leg amputation is not improvable by a prosthesis controlled by natural knee action. 38 C.F.R. Part 4, Codes 5163 and 5164 (1994). A 40 percent evaluation is assigned for a leg amputation at a lower level, permitting prosthesis. 38 C.F.R. Part 4, Code 5165 (1994). In addition, pursuant to the amputation rule, the combined evaluation for disabilities below the knee shall not exceed the 40 percent evaluation. Painful neuroma of a stump after amputation shall be assigned the evaluation for the elective site of reamputation. 38 C.F.R. § 4.68 (1994). Although the veteran has described occasional blisters or cysts with his right below-the-knee amputation, the Board finds that the clinical evidence does not demonstrate the stump to be defective, thereby necessitating amputation at the thigh, nor does it indicate that the amputation is unimproved by a prosthesis controlled by natural knee action. Rather, the veteran's prosthesis is now shown, after adjustment, to work fairly well. There is no evidence in the claims file of any neuroma associated with the veteran's stump. The veteran's complaints of occasional blisters and pain associated with his stump do not make the amputation unimprovable by prosthesis. Furthermore, the veteran was refitted for a new prosthesis and followed for adjustments as shown by the VA treatment records of January through September 1993. Therefore, as the recent clinical findings do not show a defective stump, a neuroma, and do not indicate that the amputation is unimproved by prosthesis controlled by natural knee action, the Board finds that the preponderance of the evidence is against the claim for a higher evaluation for the veteran's right below-the-knee amputation. Without addressing the question of whether the application of an extraschedular evaluation would be in violation of the amputation rule, the Board makes an independent finding of the question of the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they were raised by the veteran, as required by Schafrath. The provisions of §§ 4.40, 4.45 and 4.59 regarding impairment due to painful motion have also been considered in the conclusion that the rating currently in effect compensates for painful motion, and that the evidence discussed above does not suggest that the veteran's service-connected right below-the-knee amputation presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards so as to warrant an assignment of an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) (1994). For example, the disability did not recently require frequent periods of hospitalization, nor does it present marked interference with employment that is not already contemplated by the current evaluation. ORDER An increased evaluation for a right below-the-knee amputation is denied. WILLIAM J. REDDY 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.