BVA9505875 DOCKET NO. 93- 10 729 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to restoration of a 40 percent rating for a service- connected right tibia and fibula fracture residuals. ATTORNEY FOR THE BOARD L. M. Barnard, Counsel INTRODUCTION The veteran served on active duty from February 1988 to April 1989. This appeal arises from a May 1992 rating decision of the St. Petersburg, Florida, Department of Veterans Affairs (VA), Regional Office (RO), which proposed to reduce the veteran's disability evaluation from 40 to 20 percent. A rating action was issued in September 1992, which promulgated the proposed reduction, making it effective January 1, 1993. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that his disability evaluation for his right tibia and fibula fracture residuals should not have been reduced. He asserts that he still experiences pain on walking, standing or upon exertion, as well as limited motion. Therefore, he believes that his 40 percent disability evaluation should be restored. 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 evidence supports a restoration of the 40 percent rating for the veteran's service-connected right tibia and fibula residuals. FINDINGS OF FACT 1. The evidence does not establish that a stable reunion of the veteran's right tibia and fibula fracture has occurred. 2. There has not been an improvement in the appellant's disability that is demonstrated to be permanent. CONCLUSIONS OF LAW The 40 percent evaluation for the veteran's service-connected right tibia and fibula fracture residuals is restored. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. § 3.321, Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.40, Code 5262 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, we find that he has presented a claim which is plausible. We are also satisfied that all relevant facts have been properly developed. The record is devoid of any indication that there are other records available which should be obtained. Therefore, no further development is required in order to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Facts The service medical records revealed that the veteran suffered an open fracture of the right tibia and fibula after a skiing accident in October 1988. He underwent various surgical procedures, and a metal plate was inserted. He was subsequently found to be unfit for further service, and was transferred to the Temporary Disability Retired List. A VA examination performed between June and July 1989 noted detachment of the internal fixation plate which implied nonunion to the proximal tibia. It was noted that, because of complications at the fracture site, along with sclerosis along the fracture line, further surgery may be required in the very near future. Another VA examination was conducted in August 1990. An x-ray revealed further healing since May 1990. Some linear lucencies persisted throughout the proximal tibia, suggesting that union might not have been complete. There was a scar on the right upper leg anteriorly from the skin transplant. There was extensive scarring on the medial surface of the right knee, and right lower leg, upper third. Flexion of the knee was only 0 to 90 degrees. Pain on palpation of the medial and lateral surface of the knee was present. A minimal decrease in pinprick sensation surrounding the scar tissue on the anterior aspect of the right leg was noted, as was minimal weakness of the quadriceps muscle of the right leg. The diagnosis was fracture right tibia and fibula, nonunion. VA outpatient treatment records developed between June and December 1991 included an April 1991 x-ray, which showed that there was satisfactory position at the fracture site, which was healing. A VA examination was then performed in April 1992. The extensive surgical scars were noted. No inflammation, swelling or ulceration was found, nor was any tenderness or pain. Range of motion of the right knee was noted to be from 0 to 90 degrees. The objective examination revealed no swelling at the fracture site, although there was some deformity. There appeared to be some angulation, with possible shortening of the right leg. There was no interarticular involvement except for limitation of motion. An x-ray did not describe nonunion of the fracture site. The diagnosis was status post right knee, tibia and fibula fracture with chronic pain. According to a VA outpatient treatment report dated in June 1992, the veteran complained of pain and there was recurrent swelling. It was noted that it would be risky to remove the hardware because of soft tissue condition and vascularity as well as weakening of the bone. Analysis 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 (West 1991); 38 C.F.R. Part 4 (1993). When a question arises as to which of two evaluations shall be assigned, the higher evaluation will be assigned of 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 (1993). VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons used to support the conclusion. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). These regulations include, but are not limited to, 38 C.F.R. § 4.1, that requires that each disability be viewed in relation to its history and that there be an emphasis placed upon the limitation of activity imposed by the disabling condition, and 38 C.F.R. § 4.2 which requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.10 states that, in cases of functional impairment, evaluations are to based upon lack of usefulness, and medical examiners must furnish, in addition to etiological, anatomical, pathological, laboratory and prognostic data required for ordinary medical classification, full description of the effects of the disability upon a person's ordinary activity. This evaluation includes functional disability due to pain under the provisions of 38 C.F.R. § 4.40. These requirements for the evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decision based upon a single, incomplete or inaccurate report and to enable VA to make a more precise evaluation of the disability level and any changes in the condition. Diagnostic Code 5262 states that a 40 percent disability evaluation is warranted when the residuals of an impairment of the tibia and fibula are manifested by nonunion, with loose motion which requires a brace. A 30 percent disability evaluation requires malunion with a marked knee or ankle disability, while a 20 percent rating requires malunion with a moderate knee or ankle disability. 38 C.F.R. Part 4, Code 5262 (1993). In the instant case, the veteran was awarded a 40 percent disability evaluation for his service-connected tibia and fibula fracture residuals by a rating action issued in August 1989. This evaluation was confirmed and continued by a rating action issued in August 1990. This was based upon an examination which demonstrated nonunion of the fracture site. In May 1992, following the receipt of VA outpatient treatment records developed between June and December 1991, and a VA examination conducted in April 1992, the RO proposed to reduce his rating to 20 percent. These records showed that there was improvement in his condition; namely, that the fracture site was in satisfactory position and was healing. Thus, nonunion was no longer demonstrated. However, VA outpatient reports dated in June 1992 show that the healing process is not completed and that it would be risky to remove the hardware from the appellant's right leg. The report also states that there is weakening of the bone at the fracture site. Thus it is not clear that a satisfactory reunion of the fracture site has occurred. Under these circumstances the 40 percent rating should not have been reduced. Accordingly the 40 percent rating is restored. ORDER The benefit sought on appeal is granted. G. H. SHUFELT 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.