BVA9504933 DOCKET NO. 93-10 531 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an increased evaluation for residuals of a fracture of the right leg and ankle with degenerative changes, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Auer, Counsel INTRODUCTION The veteran served on active duty from October 1949 to October 1953 and from July 1956 to December 1957. This appeal arises from an October 1991 rating decision of the Department of Veterans Affairs (VA) Detroit, Michigan, Regional Office (RO). In that decision, an increased evaluation for the veteran's right ankle and leg disorder was denied. The veteran's representative has requested consideration of a claim for secondary service connection for a right hip disorder, as well as consideration of a claim of clear and unmistakable error in a rating decision dated in January 1986. However, these matters are not before the Board because they have not been prepared for appellate review. These matters are referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran essentially contends that he is entitled to an increased evaluation for his service-connected right leg and ankle disorder because it is more disabling than presently evaluated. 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 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 an increased rating above 10 percent for the veteran's right leg and ankle disorder. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran's right ankle is not ankylosed; plantar flexion was to 30 degrees and ankle dorsiflexion was to 10 degrees. More than moderate disability has not been demonstrated. 3. The veteran's service-connected right leg and ankle disorder does not present an exceptional case which would warrant the grant of an extra-schedular evaluation. CONCLUSION OF LAW An evaluation in excess of 10 percent is not warranted for the veteran's service-connected right leg and ankle disability. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.10, 4.40, 4.41, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5262, 5270, 5271 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board notes that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, the veteran has presented a claim which is not implausible when his contentions and the evidence of record are viewed in the light most favorable to him. The Board is also satisfied that all relevant facts have been properly developed. In this case, based on review of the evidence of record, the Board concludes that the veteran is not entitled to an increased evaluation above 10 percent for his service-connected right leg and ankle disorder. During service, the veteran received treatment for a fracture of the right leg and ankle in 1950. Following separation from service, service connection was granted in January 1986 for residuals of a fracture of the right leg and ankle, evaluated as noncompensable. The veteran was examined by the VA in November 1985. At that time, his gait was described as normal and he could perform a complete squat. Toe and heel gait was intact and there was no deformity of the leg upon inspection. Slight prominence of the right medial malleolus was noted. Dorsiflexion of the ankle was reported as 20 degrees; plantar flexion was 55 degrees, and inversion and eversion were described as normal. No edema of the right foot or ankle was observed. The dorsalis pedis pulse was good and the DT pulse was described as fair. The veteran was examined by the VA in October 1987. The veteran complained of increasing pain in the right leg and ankle and claimed to require a TENS unit. At that time, X-ray study showed slight widening and deformity of the distal fibular shaft with minimal ossification. Range of motion of the veteran's right ankle was described as full. By rating decision of December 1987, the veteran's evaluation for his right leg and ankle disorder was increased to 10 percent. A 10 percent evaluation has been in effect ever since. In June 1991, a VA orthopedic examination was accomplished. The veteran gave a history of refracture of the right ankle in 1950 and complained of increased pain with activity and weight bearing. He also noted swelling and instability of the ankle. Physical examination revealed plantar flexion to 30 degrees and dorsiflexion to 10 degrees. Crepitance was noted on range of motion. No swelling was noted. X-ray examination showed a post- traumatic deformity of the ankle with healed fracture of the distal fibula and additional small bony fragments in the region of the medial malleolus. Slight calcification in the region of the interosseous ligament was seen. Mild widening of the medial aspect of the ankle mortise was also noted. The assessment was advanced degenerative joint disease of the ankle. In a letter from J. B. Shaw, M.D., dated in May 1991, it was reported that the veteran suffered from arthritis of the right hip, lower leg, and ankle. It was stated that this disorder drastically limited his ambulation, standing, lifting, bending or prolonged sitting. Dr. Shaw stated that the pain resulting from the described condition was undoubtedly secondary to the veteran's documented service-connected injuries. X-ray reports were attached to this letter. The veteran's right leg and ankle disability is presently evaluated as 10 percent disabling under the provisions of 38 C.F.R. § 4.71a, Diagnostic Codes 5262, 5271, 5270, and 5003 or 5010. Under Diagnostic Code 5262, a 20 percent rating is warranted with moderate ankle or knee disability for impairment of the tibia and fibula. Under Diagnostic Code 5271, moderate limitation of motion of the ankle warrants a 10 percent rating and marked limitation of motion of the ankle warrants a 20 percent rating. Under Diagnostic Code 5270 which applies to ankylosis of the ankle, a 20 percent rating is warranted if plantar flexion is less than 30 degrees. At the most recent VA examination, plantar flexion was to 30 degrees and dorsiflexion was to 10 degrees; hence, a rating under Diagnostic Code 5270 for ankylosis of the ankle would not be appropriate. Under 38 C.F.R. § 4.71, the measurement of joint motion is described in Plate II. Normal range of motion for ankle dorsiflexion is described as from 0 to 20 degrees. Normal plantar flexion of the ankle is described as from 0 to 45 degrees. Under Diagnostic Code 5003 for degenerative arthritis, it is noted that when degenerative arthritis is described on X-ray findings it will be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. On VA examination in June 1991, X-ray study showed a post-traumatic deformity of the ankle with healed fracture of the distal fibula and additional small bony fragments in the region of the medial malleolus. Based upon these findings, the Board finds that moderate knee or ankle disability has not resulted from impairment of the tibia and fibula with malunion and that the limitation of motion of the ankle cannot be described as more than moderate. The Board acknowledges the representative's suggestion that the veteran's disability should be evaluated under 38 C.F.R. § 4.73, Diagnostic Code 5312 (1994). However, in view of the veteran's service medical records and the report of the VA examination performed in November 1985 which do not report any damage to Muscle Group XII, there does not appear to be any basis for evaluating the veteran's disability under 38 C.F.R. § 4.73, Diagnostic Code 5312 (1994). In reaching this decision, the Board has considered the complete history of the disability in question as well as the current clinical manifestations and the affect this disability may have on the earning capacity of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (1994). The nature of the original injury has been reviewed and the functional impairment which can be attributed to pain and weakness has been taken into account. 38 C.F.R. § 4.40 (1994). The veteran's right leg and ankle are simply not impaired to a degree to warrant a higher evaluation under the applicable diagnostic codes. Furthermore, the Board finds that the service- connected disability picture is not so exceptional or unusual as to warrant an evaluation in excess of 10 percent on an extra- schedular basis. There has been no showing that the veteran's right leg and ankle disability has caused marked interference with employment or necessitated frequent periods of hospitalization, or otherwise "render[s] impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1) 1994). ORDER An evaluation in excess of 10 percent for a right leg and ankle disorder is denied. WARREN W. RICE, JR. 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.