Citation Nr: 0002098 Decision Date: 01/27/00 Archive Date: 02/02/00 DOCKET NO. 99-00 947 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to restoration of a 20 percent evaluation for postoperative osteomyelitis of the left ankle, noncompensable since November 1998. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Marisa Kim, Associate Counsel INTRODUCTION The veteran had active military service from August 1973 to August 1985. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 1998 rating decision from the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO) that decreased the rating for osteomyelitis of the left ankle from 20 percent to noncompensably disabling since November 1998. Service-connected residuals of a fracture of the left ankle with atrophy of the ankle and foot and traumatic arthritis are currently evaluated as 40 percent disabling. FINDINGS OF FACT 1. The medical evidence does not show active infection or nonunion of the fracture of the fibula since 1992. 2. The medical evidence does not show constitutional symptoms of osteomyelitis. CONCLUSION OF LAW The criteria are not met for restoration of a compensable evaluation for osteomyelitis of the left ankle since November 1998. 38 U.S.C.A. §§ 1155, 5107(b) (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Code 5000 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background The veteran was thrown from a motor vehicle in September 1984 and sustained several injuries including an open fracture of the left ankle. He underwent several surgical procedures including fusion of the left ankle. The veteran developed osteomyelitis, and from 1984 to 1992, he was unemployed and on the temporary disability retirement list. The veteran underwent a private examination in January 1985. The examiner noted that he reviewed medical records and x- rays that the veteran brought. There was evidence of a nonunion of the fracture of the fibula that had been secured with two plates and screws fixation. The examiner stated that the diagnosis was a very severe problem with the left ankle and foot on account of an ununited osteomyelitis of the left fibula compounded by a severe causalgia or Sudeck's atrophy of the left ankle and foot. The examiner stated that attention should be geared primarily to the treatment of osteomyelitis of the left foot for which the veteran would need to have his ununited, infected fracture of the fibula exposed, the hardware removed, and the deep cultures obtained. In addition, medical records in September 1984, March 1986, April 1986, June 1987, January 1988, July 1988, January 1989, and October 1990 stated that the veteran had osteomyelitis of the left ankle, and he reported a history of osteomyelitis in January 1991, April 1992, February 1994, and October 1995. The claims folder contained color photos of the veteran's left ankle, including scars, changes in pigmentation, and grafts, from several angles. Since May 1992, the veteran worked as a counselor. The veteran, assisted by his representative, provided sworn testimony at the February 1997 hearing. He testified that x-rays showed that his left fibula was completely separated from the section of bone. Transcript (February 1997), page 8. The veteran underwent a VA examination in November 1997, and the examiner noted a history from the veteran's medical records. Over the years since the vehicle accident, the veteran had chronic recurrence of osteomyelitis from difficulty healing a fracture of the left ankle. His last left ankle surgery was in 1992. He had approximately 13 procedures to include the procedures for drainage and debridement secondary to osteomyelitis. He has chronic pain and chronic weakness in the left ankle. Prior to his 1992 surgery, he had frequent flare-ups of osteomyelitis with conditions severe enough to have drainage from the wound sites. The examiner noted that there was no active infection at the present time, and the veteran reported that he had not had any infection since the surgery of 1992. The examiner noted that there were no constitutional symptoms of bone disease at this time. During the time of chronic infections, multiple procedures, and nonhealing, the veteran's medical problems had a terrific impact on the veteran's life because he could not work. Today, he still had some problems because he was significantly limited by what he could do with his ankles because of pain. This affected both his occupational and home life. There was no drainage noted at this examination. The diagnosis was status post fracture of the left ankle and subsequent chronic osteomyelitis; and status post left ankle fusion. Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Schedule). 38 C.F.R. Part 4 (1999). The percentage ratings contained in the Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (1999). Regulations require the evaluation of the complete medical history of the veteran's condition. 38 C.F.R. §§ 4.1, 4.2 (1999). In determining the disability evaluation, the 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 and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Osteomyelitis, acute, subacute, or chronic, of the pelvis, vertebrae, or extending into major joints, or with multiple localization or with long history of intractability and debility, anemia, amyloid liver changes, or other continuous constitutional symptoms, is entitled to a 100 percent evaluation. Frequent episodes of osteomyelitis with constitutional symptoms is entitled to a 60 evaluation. Osteomyelitis with definite involucrum or sequestrum, with or without discharging sinus, is entitled to a 30 evaluation. Osteomyelitis, with discharging sinus or other evidence of active infection within the last 5 years, is entitled to a 20 percent evaluation. Inactive osteomyelitis, following repeated episodes, without evidence of active infection in the past 5 years, is entitled to a 10 percent evaluation. Note (1): A rating of 10 percent, as an exception to the amputation rule, is to be assigned in any case of active osteomyelitis where the amputation rating for the affected part is no percent. This 10 percent rating and the other partial ratings of 30 percent or less are to be combined with ratings for ankylosis, limited motion, nonunion or malunion, shortening, etc., subject, of course, to the amputation rule. The 60 percent rating, as it is based on constitutional symptoms, is not subject to the amputation rule. A rating for osteomyelitis will not be applied following cure by removal or radical resection of the affected bone. Note (2): The 20 percent rating on the basis of activity within the past 5 years is not assignable following the initial infection of active osteomyelitis with no subsequent reactivation. The prerequisite for this historical rating is an established recurrent osteomyelitis. To qualify for the 10 percent rating, 2 or more episodes following the initial infection are required. This 20 percent rating or the 10 percent rating, when applicable, will be assigned once only to cover disability at all sites of previously active infection with a future ending date in the case of the 20 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5000 (1999). Chronic, or recurring, suppurative osteomyelitis, once clinically identified, including chronic inflammation of bone marrow, cortex, or periosteum, should be considered as a continuously disabling process, whether or not an actively discharging sinus or other obvious evidence of infection is manifest from time to time, and unless the focus is entirely removed by amputation will entitle to a permanent rating to be combined with other ratings for residual conditions, however, not exceeding amputation ratings at the site of election. 38 C.F.R. § 4.43 (1999). According to the amputation rule, the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed. For example, the combined evaluations for disabilities below the knee shall not exceed the 40 percent evaluation, Diagnostic Code 5165. This 40 percent rating may be further combined with evaluation for disabilities above the knee but not to exceed the above-the-knee amputation elective level. See 38 C.F.R. § 4.68 (1999). Thus, the combined rating for the left below- the-knee disability cannot exceed 40 percent. Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). Analysis The veteran's claims are well grounded. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78 (1990). A veteran's assertion that the disability has worsened serves to render the claim well grounded. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Normally, a 10 percent evaluation would be warranted because, although examiners noted repeated episodes of osteomyelitis prior to 1992, the medical evidence does not show that the veteran had an active infection in the past 5 years. In November 1997, there was no active infection, and the veteran reported having no infection since 1992. Restoration of a 20 percent rating is not warranted because the medical evidence does not show that the veteran had an active infection within the last 5 years. A 30 percent rating is not warranted because the medical evidence does not show that the nonunion noted in January 1985 still exists. Rather, the veteran underwent surgery in 1992, and since then, he was able to secure and retain employment. Although a 10 percent rating would normally be warranted for osteomyelitis of the left ankle, the amputation rule prohibits a combined rating in excess of 40 percent for service-connected disabilities of the left ankle. A noncompensable rating for osteomyelitis of the left ankle must continue because residuals of the fracture of the left ankle are already evaluated as 40 percent disabling. Finally, in Smallwood, the Court held that the Board should have addressed an extraschedular rating under 38 C.F.R. § 3.321(b) since that appellant's foot disability was excreting a particularly foul-smelling drainage that seems to suggest that he may qualify as an exceptional case under section 3.321. See Smallwood, 10 Vet. App. at 97-98; 38 C.F.R. § 3.321(b)(1999). Extraschedular considerations do not apply in this case because exceptional circumstances have neither been claimed nor demonstrated. ORDER Entitlement to restoration of a compensable evaluation for osteomyelitis of the left ankle since November 1998 is denied. V. L. Jordan Member, Board of Veterans' Appeals