BVA9508378 DOCKET NO. 93-15 898 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to an increased evaluation for a service connected fracture of the right ankle, currently evaluated at 20 percent. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James Douglas, Associate Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (BVA) on appeal from a rating decision dated in September 1992 which denied the benefit sought on appeal. The veteran had active service from April 1967 to March 1969. CONTENTIONS OF APPELLANT ON APPEAL The veteran essentially contends that the RO is incorrect in not granting the benefit sought on appeal. The veteran maintains that the current evaluation assigned for his right ankle disability does not accurately reflect the severity of this disability. Specifically, the veteran states that he suffers significant pain, swelling, and limited motion of the ankle to the extent it affects his ability to stand for long periods of time and climb stairs. Therefore, a favorable determination has been requested. 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 preponderance of the evidence is against the assignment of an evaluation in excess of 20 percent for residuals of his right ankle fracture. 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 disability is currently manifested by an antalgic gait, some limitation of dorsiflexion and plantar flexion, and moderate degenerative joint disease; the fractures are healed and the joint is not ankylosed. CONCLUSION OF LAW The schedular criteria for an evaluation in excess of 20 percent for residuals of a right ankle fracture have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1-4.14, 4.40- 4.46, 4.71a, Diagnostic Code 5262 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, The Board finds that the veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990); Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). That is, The Board finds that 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 that claim. The Board is also satisfied that all relevant facts have been properly and sufficiently developed. Based upon a review of the veteran's service medical records, the July 1969 rating decision indicated that the veteran had sustained a fracture of his right ankle while on maneuvers in 1968. Following a VA examination, service connection for residuals of a fractured right ankle was granted and a 20 percent evaluation was assigned under 38 C.F.R. § 4.71a, Diagnostic Code 5262, based on X-ray evidence showing an old ununited fracture of the medial malleolus and a healed fracture of the lower fibula with swelling of the right ankle and restriction of motion of the right foot and ankle. Similar X-ray findings were reported on a VA examination in June 1971. The 20 percent evaluation has remained in effect through this appeal. The August 1992 VA examination following the veteran's claim for increase revealed that he walked with an antalgic gait. He lacked 10 degrees full dorsiflexion, and plantar flexion was to 30 degrees. Supination and pronation motions of the ankle were described as normal, as was the veteran's ability to walk on his toes and heels and accomplish deep knee bending. There was no reported evidence of obvious deformity of the right ankle, or any malunion or nonunion of the tibia and fibula. The impression following the examination and X-rays described a healed right ankle fracture with moderate degenerative changes. At a January 1993 hearing at the RO, the veteran testified that his condition had worsened over the previous year. He related that he could spend only a few hours on his feet before the onset of painful swelling, which caused him to limp. Although the swelling and the pain did not necessitate the use of a cane or brace, the veteran indicated that high-top boots and aspirin helped him deal with the pain. While most of the pain was brought on by the standing required by his job, he stated that his employers were aware of his disability and accommodated him by assigning him tasks that did not require painful movement. Under 38 C.F.R. § 4.71a (1994) a higher evaluation for the veteran's ankle disability could be assigned in cases of marked ankle disability with evidence of a malunion or nonunion of the tibia and fibula, Diagnostic Code 5262; or for ankylosis of the ankle, Diagnostic Code 5270. Recent examination no loner demonstrates any bony malunion or nonunion and given the range of motion reported on examination, it is clear that the veteran's right ankle is not ankylosed or fixed in one position. Inversion and eversion were normal and the only limitation of motion was on dorsiflexion (normal being from 0 to 30 degrees) and plantar flexion (normal range from 0 to 45 degrees). See 38 C.F.R. § 4.71, Plate II (1994). A 20 percent rating is contemplated for Diagnostic Code 5271 for marked limitation of range of motion, but that is the maximum rating for assignment based on limited motion of the ankle. Therefore, The Board concludes that criteria for a rating in excess of 20 percent have not been met or approximated. 38 C.F.R. § 4.7 (1994). In reaching this decision, the Board has considered the history of the veteran's right ankle disability as well as the current clinical manifestations and the effect this disability may have on the veteran's earning capacity. 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). Although the veteran has testified that he has painful swelling of the ankle, there was no swelling reported on the August 1992 VA examination. The circumference measurement of both ankles was the same. In any event, pain is contemplated in the 20 percent rating currently assigned. Furthermore, the Board finds that the disability is not so exceptional or unusual so as to warrant an evaluation in excess of 20 percent on an extra-schedular basis. The veteran's employers appear to have accommodated his right ankle disability, so it has not caused marked interference with employment, necessitated frequent periods of hospitalization, or otherwise rendered impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (1994). ORDER An evaluation in excess of 20 percent for residuals of a right ankle fracture is denied. CHARLES E. HOGEBOOM 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.