Citation Nr: 0004188 Decision Date: 02/16/00 Archive Date: 02/23/00 DOCKET NO. 97-11 376 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia THE ISSUES 1. Entitlement to a higher rating than 10 percent for residuals of a laceration of the right forearm. 2. Entitlement to a compensable rating for residuals of a fracture of the right tibial plateau. 3. Entitlement to a compensable rating for residuals of a fracture of the pubic arch. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. T. Jones, Counsel INTRODUCTION The veteran served on active duty from May 1966 to April 1969, July 1970 to July 1973, March 1976 to January 1981, and from November 1981 to November 1984. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 1996 RO decision that, in pertinent part, granted service connection and noncompensable ratings for residuals of fractures of the pubic arch and right tibial plateau, and residuals of a laceration of the right forearm. The veteran appealed for higher ratings. In November 1997 the RO assigned a higher rating of 10 percent for the residuals of a laceration of the right forearm. In August 1998 the Board remanded the issues currently on appeal. FINDINGS OF FACT 1. The residuals of a laceration of the right forearm are manifested by a well-healed asymptomatic scar overlying the right ulna, with no related muscle damage. 2. The veteran has no disabling residuals of a fracture of the right tibial plateau. The condition does not produce any limitation of motion or instability of the right knee. 3. The veteran has no disabling residuals of a fracture of the pubic arch. CONCLUSIONS OF LAW 1. The criteria for rating in excess of 10 percent for residuals of a laceration of the right forearm have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.31, § 4.73, Diagnostic Codes 5308, § 4.118, Codes 7803, 7804 (1999) 2. The criteria for a compensable rating for residuals of a fracture of the right tibial plateau have not been met. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.31, § 4.71a, Diagnostic Codes 5257, 5260, 5261. 3. The criteria for a compensable rating for residuals of a fracture of the pubic arch have not been met. 38 U.S.C.A. § 1155 (West 1991 & Supp. 1998); 38 C.F.R. § 4.31, § 4.71a, Diagnostic Code 5251. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Background The veteran served on active duty from May 1966 to April 1969, July 1970 to July 1973, March 1976 to January 1981, and from November 1981 to November 1984. His service medical records show he sustained a laceration of the right forearm and bruises along the right hip and thigh when struck on the right side by a jeep in September 1971. He was hospitalized for treatment. The laceration of the right forearm reportedly was through the periosteum of the ulna, but the muscle was largely intact. The right forearm wound was cleaned and sutured. Service records show the veteran is right-handed. X-rays of the right knee showed a fracture of the lateral tibial plateau. There was effusion of the right knee. X-rays of hip showed a questionable congenital or traumatic lesion of the posterior pubic arch. He was hospitalized to January 1972 for a broken right leg and pelvis. He was placed on a physical profile for limited duty because of his right knee condition in March 1972. His June 1973 physical examination for service separation noted status post fractures of the right tibia and pelvis; clinical examination of the spine and upper and lower extremities was normal; and a 4-inch scar was noted on the right forearm. On the history portion of the veteran's last (October 1984) service separation examination, he indicated that he had fractured his right tibia and pelvis. Clinical examination of the spine and upper and lower extremities was normal. In September 1995 the veteran filed a claim for service connection for residuals of fractures of the right leg and pelvis. (He had earlier filed a claim for these conditions in 1974, but this claim was abandoned by the veteran.) On a December 1995 VA orthopedic examination, the veteran reported that he fractured his right tibia and "cracked" his pelvis in a jeep accident in Vietnam in the early 1970s. He said he had a closed reduction of the fracture of the right tibia and was off duty for a number of months. He gave a history of a post-service injury in 1987 in which he fell 35 feet off of a scaffold, sustaining a severe contusion of the left buttock and a fractured left heel. He said his right leg and pelvis were okay. There was no swelling, deformity, angulation, false motion, shortening, or intra- articular involvement of the right knee or tibia. X-rays of pelvis showed no evidence of fracture, and X-rays of the right tibia and fibula showed no apparent deformities except for very little deformity of the lateral tibial plateau which could on the basis of old trauma or degenerative change. The diagnoses included old healed fracture of the right tibial plateau with no residuals, and history of fracture of the pelvis with no residuals. On a December 1995 VA examination of the muscles and VA examination for scars, no pertinent findings were noted. At a June 1997 hearing at RO, the veteran testified that he had increasing swelling of the right knee in the past few years and said that he weakness of the right arm after prolonged use. No specific allegations regarding the fracture of the pubic arch of the pelvis were reported. Medical records show right elbow complaints, and service connection is in effect for right elbow bursitis. The service-connected right elbow bursitis is not involved in the present appeal and is separate from the service-connected right forearm laceration residuals. On a November 1998 VA examination of the bones, the veteran said he had no symptoms from the fracture of the pelvis and that his right tibial plateau (knee) was okay except that when it rained he would get a knot in the side of the knee. He walked without a limp and had full range of motion of the knee (0 to 140 degrees) without complaints of pain. It was reported that that X-rays of the pelvis showed no signs of a fracture and that X-rays of the right knee showed no evidence of a fracture, arthritis, or deformity. The diagnoses were history of a healed pelvis fracture, asymptomatic, and history of a healed fracture of the lateral tibial plateau with minimal symptoms. The doctor noted that the veteran had only minimal knee symptoms secondary to rainy weather, which could be due to the old tibial fracture, which was healed and not visible on X-ray. On a November 1998 VA scar examination, a right forearm scar was briefly noted, and it was noted that such would be evaluated as part of a separate muscle examination. At a November 1998 VA muscle examination, the veteran described a rather deep laceration over the right ulna during service, which had been left open to heal by secondary healing. He said that if he bumped the scar it would split and bleed, and said that when his hand got tired he could not hold a hammer well. He also said he had weakness in his fingers when pulling on a hunting bow. He said his main problem was with bursitis of the right elbow. Examination showed a 9-cm long by 1-cm wide slightly depressed scar over the right ulna. The scar was freely movable and nontender, and there was no scar ulceration or drainage. There was no evidence of muscle involvement from the right forearm laceration, and the examiner noted the laceration was directly over the ulna in an area in which there were no muscles. He had a strong grip and normal range of motion. The diagnosis was healed severe lacerated wound of the right forearm, with no muscle involvement. The examiner commented it was doubted that there was much disability from this injury, and it was again pointed out that the laceration was over the ulna bone and did not involve a muscle group but only skin and subcutaneous tissue. Another VA examination was performed in January 1999 to determine if there was any hip disability from the service- connected pubic arch fracture of the pelvis. The examiner noted the veteran's history, included the reported pelvis injury in service, and a post-service injury involving a fall of 30 feet with trauma to the buttocks and sciatic nerve. The veteran chiefly complained of recurrent back pain radiating to the left hip, and he indicated such episodes were present since his post-service injury. Current examination showed some limitation of motion of the hips. It was noted that X-rays of the hips were negative, and X-rays of the pelvis showed no evidence of an old or recent fracture and no misalignment of the pelvis. The examiner commented that any hip disability or pain was radicular in nature, originating in the back, and had nothing to do with the alleged hairline fracture of the pelvis which, if it ever occurred, had healed without X-ray evidence of fracture. II. Analysis The veteran's claims for higher ratings for his service- connected residuals of a laceration of the right forearm, and residuals of fractures of the pubic arch and right tibial plateau, are well grounded, meaning plausible. The RO has properly developed the evidence, and there is no further VA duty to assist the veteran with his claims. 38 U.S.C.A. § 5107(a). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. A. Residuals of a laceration of the right forearm The RO rated has assigned a 10 percent rating for the residuals of a laceration of the right forearm under Diagnostic Code 5308 for muscle injury to Muscle Group VIII, which includes forearm muscles affecting movement of the fingers, thumb, and wrist. For the major extremity, a slight disability of Muscle Group VIII warrants a 0 percent evaluation, a moderate disability warrants a 10 percent evaluation, and a moderately severe disability warrants a 20 percent rating. 38 C.F.R. § 4.73, Diagnostic code 5308. The veteran is right-handed. Service medical records show that he sustained a deep laceration of the right forearm, with the cut going down to the periosteum of the ulna. However, the service and post-service medical records show no muscle damage from the laceration. As explained by the recent VA examiner, the site of the laceration is over an area of the ulna in which there are no muscles, and the laceration involved only the skin and subcutaneous tissue. The medical evidence does not show even slight (0 percent) injury to Muscle Group VIII, let alone moderate (10 percent) injury as found by the RO in assigning the current 10 percent rating; and there certainly is no moderately severe muscle injury as required for the next higher rating of 20 percent under Code5308. The medical evidence shows the right forearm laceration scar is well-healed and asymptomatic, and there is no basis for a compensable rating under scar codes. 38 C.F.R. § 4.31, § 4.118, Codes 7803, 7804. The preponderance of the evidence is against a rating in excess of 10 percent for residuals of a laceration of the right forearm. Thus, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). B. Residuals of a fracture of the right tibial plateau The veteran is currently assigned a 0 percent rating for residual of a fracture of the right tibial plateau under 38 C.F.R. § 4.71a, Code 5257. This code provides a 10 percent rating for slight recurrent subluxation or lateral instability of the knee. The medical evidence shows that the veteran does not have even slight recurrent subluxation or lateral instability of the left knee, which is required for a 10 percent under Code 5257. If this code were used for rating a knee, a 0 percent rating would be assigned, in accordance with 38 C.F.R. § 4.31. The medical evidence also shows full painless range of motion of the right knee, and thus a 0 percent rating is warranted under limitation-of- motion codes. 38 C.F.R. § 4.71a, Codes 5260, 5261. There is no evidence of limitation of right knee motion due to pain on use or during flare-ups, and certainly not to a degree as would support a compensable rating. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet.App. 202 (1995). The preponderance of the evidence is against a compensable rating for residuals of a fracture of the right tibial plateau. Thus, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert supra. C. Residuals of a fracture of the pubic arch The veteran apparently sustained a fracture of the pubic arch of the pelvis when he was struck by a jeep in service. He has no current complaints relative to this injury, and the recent VA examiner noted that residuals of the claimed fracture were not visible by X-ray and said the condition was asymptomatic. The RO has assigned a 0 percent rating for the condition under 38 C.F.R. § 4.71a, Diagnostic Code 5251, which provides that limitation of thigh extension to 5 degrees warrants a 10 percent rating. A noncompensable rating is not provided by this code. As noted at the latest VA examination, there is some limitation of motion of the hips, but such is due to a post-service injury and is not due to the now-healed pubic arch fracture in service. The medical evidence demonstrates that the service-connected residuals of a pubic arch fracture are asymptomatic and cause no functional impairment. Accordingly the current 0 percent rating pursuant to 38 C.F.R. § 4.31 is proper. The preponderance of the evidence is against a compensable rating for this condition. Thus, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert supra. ORDER A higher rating for residuals of a laceration of the right forearm is denied. A higher rating for residuals of a fracture of the right tibial plateau is denied. A higher rating for residuals of a fracture of the pubic arch is denied. L. W. TOBIN Member, Board of Veterans' Appeals