Citation Nr: 0300112 Decision Date: 01/03/03 Archive Date: 01/15/03 DOCKET NO. 97-00 141 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for degenerative joint disease of the right ankle postoperative with internal fixation, prior to November 20, 2000. 2. Entitlement to an evaluation in excess of 30 percent for degenerative joint disease of the right ankle from November 20, 2000, to March 5, 2002. 3. Entitlement to an increased evaluation for a right below the knee amputation, currently evaluated as 40 percent disabling. As to the issues of entitlement to increased evaluations for left knee patellofemoral pain syndrome; right knee patellofemoral pain syndrome; and residuals of a fracture of the right ulna (major), the Board is undertaking additional development pursuant to authority granted by 67 Fed. Reg. 3,099, 3,104 (Jan. 23, 2002) (to be codified at 38 C.F.R. § 19.9(a)(2)).) REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The veteran service on active duty from October 1991 to October 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 1996 rating determination of the Montgomery, Alabama, Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. Prior to his below the knee amputation, the veteran's right ankle disability was akin to a malunion of the tibia and fibula resulting in marked ankle disability. 2. The right leg is amputated below the knee. 3. The surgical stump scar resulting from the below-the- knee amputation is tender and painful. CONCLUSIONS OF LAW 1. The criteria for a 30 percent evaluation for degenerative joint disease of the right ankle postoperative with internal fixation have been met from October 28, 1995, to March 5, 2002. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.71a, Diagnostic Codes 5262, 5270, 5271 (2001). 2. The criteria for an evaluation in excess of 40 percent for a right below the knee amputation have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.68, 4.71a, Diagnostic Codes 5165 (2001). 3. The criteria for a 10 percent evaluation for a painful scar as a residual of a right below the knee amputation have been met from March 5, 2002. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1-4.14, 4.118, Diagnostic Codes 7804 (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS There has been a significant change in the law during the pendency of this appeal with the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). The law and regulations eliminate the concept of a well-grounded claim, redefine the obligations of VA with respect to the duty to assist, and supersede the decision of the United States Court of Appeals for Veterans Claims in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, 14 Vet. App. 174 (2000) (per curiam order) (holding that VA cannot assist in the development of a claim that is not well grounded). The new law also includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. See 66 Fed. Reg. 45,620 (Aug. 29, 2001)(to be codified as amended at 38 C.F.R. §§ 3.156, 3.159). See also Quartuccio v. Principi, No. 01-997 (U.S. Vet. App. June 19, 2002). Hereinafter known collectively as VCAA. The VCAA is applicable to all claims filed on or after the date of enactment, November 9, 2000, or filed before the date of enactment and not yet final as of that date. Veterans Claims Assistance Act of 2000, Pub. L. No. 106- 475, § 7, subpart (a), 114 Stat. 2096, 2099 (2000). See also Karnas v. Derwinski, 1 Vet. App. 308 (1991). In this case, VA's duties have been fulfilled. First, VA has a duty to notify the appellant and his representative, if represented, of any information and evidence needed to substantiate and complete a claim. The Board concludes the discussions in the April 1996, August 1997, March 2001, and August 2002 rating determinations, the September 1996 SOC, and the August 1997, October 1999, and March 2001 SSOCs informed the appellant of the information and evidence needed to substantiate this claim. Moreover, in an August 2002 letter, the RO informed the veteran of the laws and regulations of the VCAA. Second, VA has a duty to assist the appellant in obtaining evidence necessary to substantiate the claim. The RO requested all relevant records identified by the appellant, and the appellant was informed in various letters what records the RO was requesting and he was asked to assist in obtaining the evidence. This matter was also remanded by the Board for further development with the requested development being performed as thoroughly as possible. The veteran has also been afforded VA examinations with regard to his claim. Moreover, the veteran testified at a hearing before a local hearing officer in June 1997. VA has met all VCAA duties. In the circumstances of this case, a remand would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). VA has satisfied its duties to notify and to assist the appellant in this case. Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Schedule), 38 C.F.R. Part 4 (2001). 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 their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2001). In determining the disability evaluation, the VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Governing regulations include 38 C.F.R. §§ 4.1 and 4.2 (2001), which require the evaluation of the complete medical history of the veteran's condition. 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 (2001). The Board notes that in Fenderson v. West, 12 Vet. App. 119 (1999), the Court discussed the concept of the staged of ratings. In this case, the RO has assigned staged rating based on their interpretation of the evidence and the fact that an amputation was performed during the appeal period. In part, the Board agrees that there has been a change warranting a staged rating. Clearly the veteran did not have an amputation dating back to service. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. As regards the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Some factors considered include pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. 38 C.F.R. § 4.45. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight- bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. Under 38 C.F.R. § 4.71a, Diagnostic Code 5010, degenerative or traumatic arthritis substantiated by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each major joint or group of minor joints affected by limitation of motion. Diagnostic Code 5271 provides for a 10 percent rating for moderate limitation of motion of the ankle and a 20 percent rating for marked limitation of motion of the ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5271. Normal range of ankle motion is dorsiflexion to 20 degrees and plantar flexion to 45 degrees. 38 C.F.R. § 4.71, Plate II (2000). Ankylosis of the ankle in plantar flexion at less than 30 degrees warrants a 20 percent rating. A 30 percent rating is warranted if the ankylosis is in plantar flexion between 30 and 40 degrees or in dorsiflexion between 0 and 10 degrees. A 40 percent rating is warranted if there is ankylosis of the ankle in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion or eversion deformity. 38 C.F.R. § 4.71a, Diagnostic Code 5270. Under the provisions of DC 5262 (impairment of the tibia and fibula), a 40 percent evaluation is warranted when there is nonunion of the tibia and fibula, with loose motion, and a brace is required; if there is malunion of the tibia and fibula with knee or ankle disability, a 30 percent evaluation is warranted when the disorder is marked, a 20 percent evaluation is warranted when the disorder is moderate, and a 10 percent evaluation is warranted when the disorder is slight. The "amputation rule" provides that the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at that elective level, were amputation to be performed. For example, the combined evaluations for disabilities below the knee shall not exceed the 40 percent evaluation under Diagnostic Code 5165. 38 C.F.R. § 4.68 (2001). A review of the record demonstrates that the veteran was involved in an automobile accident in November 1994. The veteran sustained a medial malleolus fracture of his right ankle which was treated by open reduction and internal fixation. At the time of a July 1995 visit, the veteran was noted to have good range of motion and no pain. X- rays showed the fracture was united. At the time of an August 1995 visit, the veteran was noted to have some anterior ankle discomfort. He was found to have good range of ankle movements. The veteran requested service connection for residuals of an ankle fracture in November 1995. In April 1996, the veteran was afforded a VA examination. The examiner noted a history of pain in the right ankle. Physical examination performed at that time revealed a 3 centimeter scar on the right ankle. A diagnosis of surgical repair of the right ankle after a car accident with pin placement was rendered. In an April 1996 rating determination, the RO granted service connection for a right medial malleolus fracture and assigned a noncompensable disability evaluation. In his August 1996 notice of disagreement, the veteran indicated that his right ankle injury was a result of the automobile accident. He noted that he currently had two pins in the ankle to support the main structure. He stated that although the pins supported the ankle, he had pain everyday. He indicated that it hurt some days just to get out of bed. He reported that as a result of the stress on his ankle, he was limited in his ability to walk or stand. He noted that if he were forced to stand for any length of time, he was usually given a brief but often painful reminder of his limitations. In June 1997, the veteran testified at a hearing before a local hearing officer. At the time of the hearing, the veteran indicated that he had two pins placed in his ankle as a result of the surgery. He stated that some mornings it was even difficult to get out of bed. He also reported having to sit down on occasion as a result of his ankle bothering him. He further testified as to having swelling in the ankle. He also noted that his ankle began to hurt after walking short distances. He further indicated that it hurt him when driving. He stated that he would have to pull over to the side of the road and flex his ankles. In July 1997, the veteran was afforded a VA examination. At the time of the examination, the veteran reported having pain in his ankle. Physical examination performed at that time revealed plantar flexion to 48 degrees and dorsiflexion to 8 degrees. A diagnosis of right ankle fracture requiring open reduction and internal fixation with scar tissue and some loss of motion was rendered. In an August 1997 rating determination, the RO increased the veteran's disability evaluation for his postoperative right medial malleolus fracture from noncompensable to 10 percent, effective the date of his release from service. In April 1999, the Board remanded this matter for additional development. In June 1999, the veteran was afforded a VA examination. At the time of the examination, the veteran claimed to have pain, weakness, stiffness, swelling, heat and redness, locking, instability, giving way, and lack of endurance. He reported taking 800 mgs of Motrin two to three times per day. Flare-ups were precipitated by bad weather. He stated that he had used crutches in the past but did not need any appliances at the time of the examination. Physical examination revealed the following ranges of motion: dorsiflexion to 17 degrees, as compared to 19 degrees on the left, and plantar flexion to 40 degrees as compared to 44 degrees on the left. The examiner indicated that there was a noticeable 6 x 5 cm. swelling of the lateral malleolus of the right ankle. There was some evidence of painful motion, tenderness, and guarding on movement. There was no edema, effusion, instability, weakness, redness, heat, or abnormal movement. The veteran walked with a deliberate limp with no cane or appliance. The examiner stated that the veteran had a 5 percent additional functional impairment as a result of flare-ups. X-rays of the right ankle revealed an internal fixation of a fracture of the medial malleolus. Mild degenerative changes were seen at the ankle with small marginal osteophytes. Soft tissue swelling was identified over the lateral malleolus. A diagnosis of post fracture degenerative joint disease of the right ankle with only slight loss of function due to pain was rendered. In an October 1999 rating determination, the RO reclassified the veteran's disability as degenerative joint disease of the right ankle, post operative, with internal fixation, and continued the 10 percent disability evaluation. Outpatient treatment records obtained in conjunction with the claim demonstrate that the veteran was seen with complaints of right ankle pain in February 2000. At the time of the visit, the veteran indicated that he had a mass in is right ankle for the past 16 months and noted that he had pain for the past year. Physical examination revealed a 5 x 7 cm mass, which was tender to palpation. A diagnosis of a mass of the right ankle was rendered at that time. A biopsy performed at that time revealed a lesion consistent with old fibromatosis. A MRI of the ankle performed in May 2000 revealed a 5 x 5 x 2.5 cm extraarticular soft tissue mass related to the posterior margin of the lateral malleolus posteriorly. In August 2000, the veteran was diagnosed with a locally aggressive fibromatosis. In January 2001, the veteran was afforded a VA examination. At the time of the examination, the veteran indicated that his ankle had never been well after the accident and stated that his ankle became worse every year. The veteran complained of pain, weakness, stiffness, swelling, instability, giving way, locking, fatigability, and lack of endurance with the right ankle. He stated that his ankle continuously hurt. He used a cane. There was no subluxation and no inflammatory arthritis. Physical examination revealed that the motion stopped when the pain began. There was marked evidence of painful motion, edema, effusion, instability, weakness, and tenderness. There was no redness or heat. Abnormal movement and guarding of movement were present. The veteran used a cane and had a very decrepit gait. The right ankle was markedly swollen, with the dimension of 30.5 centimeters on the right and 27.5 centimeters on the left. Dorsiflexion on the right was to 7 degrees and on the left to 18 degrees. Extension on the right was to 16 degrees and to 43 degrees on the left. A diagnosis of post fracture degenerative joint disease of the right ankle with loss of function due to marked pain was rendered. It was the examiner's opinion that the tumor was as likely as not related to the automobile accident. In a March 2001 rating determination, the RO increased the veteran's disability evaluation from 10 to 30 percent for degenerative joint disease of the right ankle, post operative with internal fixation and aggressive fibromatosis, and assigned an effective date of November 20, 2000 under DC 5262. In a February 2002 outpatient treatment record, it was noted that the veteran began coming to the Birmingham VAMC in the summer of 1996 with complaints of chronic ankle pain and a bulge and swelling of the ankle. It was noted that the ankle was treated conservatively with NSAIDS and PT. It was further indicated that biopsies performed in March 2000 revealed aggressive fibromatosis. A right below the knee amputation was planned for March 2002. On March 5, 2002, the veteran underwent a right below the knee amputation. In a March 17, 2002, outpatient treatment record, the veteran was noted to be doing well with no significant complaints. The veteran was experiencing phantom pain below the knee. At the time of a June 2002 follow-up, the veteran was noted to have a well-healed incision. There was a small area of granulation tissue in the mid portion of the incision but it was not draining and the veteran indicated that it had not changed in the past several weeks. The veteran did have an area of tenderness over the distal aspect of the stump. He was nontender to palpation over the anterior and medial aspects of the distal tibia. A diagnosis of status post below the knee amputation with continued pain was rendered. In an August 2002 rating determination, the RO assigned a temporary total disability evaluation for the surgery and assigned a 40 percent disability evaluation for a right below the knee amputation from October 1, 2002. The criteria for a 30 percent evaluation for residuals of a fractured right ankle have been met from October 28, 1995, until March 5, 2002, under DC 5262. The veteran has reported having ankle discomfort since service as a result of the ankle fracture sustained in the 1994 automobile accident. At the time of the veteran's April 1996 VA examination, the examiner reported that the veteran had pain in his ankle. Moreover, in his April 1996 notice of disagreement, the veteran stated that he was limited in his ability to walk or stand. He further reported that if he stood for any length of time he incurred great pain. Furthermore, at the time of his June 1997 hearing, the veteran indicated that it was even difficult for him to get out of bed. He also noted that his ankle began to hurt after walking short distances and that he had swelling in the ankle. In addition, at the time of his July 1997 VA examination, the veteran only had dorsiflexion to 8 degrees. Moreover, at the time of a June 1999 VA examination, the veteran reported having pain, weakness, stiffness, swelling, heat and redness, locking, instability, giving way, and lack of endurance. There was also a noticeable 6 X 5 cm. swelling of the lateral malleolus of the right ankle. The examiner reported the presence of painful motion, tenderness, and guarding on movement. The veteran was also found to walk with a deliberate limp. X-rays revealed an internal fixation of the medial malleolus fracture. In addition, at the time of a February 2000 outpatient visit, the veteran was noted to have had a mass on his right ankle for the past 16 months, with a biopsy revealing fibromatosis. Finally, at the time of his January 2001 VA examination, there was marked evidence of painful motion, edema, effusion, instability, weakness, and tenderness. Abnormal movement and guarding of movement were present and the veteran was noted to use a cane and to have a very decrepit gait. The right ankle was markedly swollen, with the dimension of 30.5 centimeters on the right and 27.5 centimeters on the left, with dorsiflexion to 7 degrees and extension to 16 degrees. Based upon the above, which includes marked limitation of motion and swelling subsequently attributed to fibromatosis, the veteran has met the criteria for a 30 percent evaluation under DC 5262 since his release from service. The criteria for an evaluation in excess of 30 percent have not been met as the veteran has not been shown to have ankylosis of the ankle in plantar flexion at more than 40 degrees, in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion or eversion deformity. The criteria for a 40 percent disability evaluation under DC 5262 have also not been met as nonunion of the tibia and fibula has not been demonstrated and as the veteran has not been found to be using a brace at the time of any VA examination or outpatient visit. As to an evaluation in excess of the 40 percent currently assigned, the Board notes that the veteran has been assigned the highest schedular evaluation allowed for a below the knee amputation under DC 5165. There is no indication that he does not retain natural knee action. An April 2002 report reflected that he was to undergo prosthetic training. Although there is stump pain, he remained weight bearing according to the June 2002 report. With regard to the scar resulting from the veteran's amputation, the Board notes that the regulations governing scar codes were changed during the course of the veteran's appeal. When a regulation changes during the pendency of a claim for VA benefits and the regulation substantively affects the claim, the claimant is entitled to resolution of his claim under the version of the regulation that is most advantageous to him. Karnas v. Derwinski, 1 Vet. App. 308 (1991). In VAOPGCPREC 3-2000, 65 Fed. Reg. 33422 (2000), VA's General Counsel held that when a provision of the VA rating schedule is amended while a claim for an increased rating under that provision is pending, a determination as to whether the intervening change is more favorable to the veteran should be made. If the amendment is more favorable, that provision should be applied to rate the disability for periods from and after the effective date of the regulatory change; and the prior regulation should be applied to rate the veteran's disability for periods preceding the effective date of the regulatory change. Id. The Board has reviewed the appellant's claim under both the "old" and "new" criteria, and based on this review, it finds that neither are more favorable to the appellant. Therefore, the Board need not remand this claim to the RO for initial consideration of the effect of the new criteria on the appellant's claim as there is no prejudice to the appellant with the Board's immediate consideration of the claim. Bernard v. Brown, 4 Vet. App. 384, 393- 394 (1993). Under the old rating criteria, effective prior to August 30, 2002, superficial and poorly nourished scars with repeated ulceration, warranted a 10 percent evaluation under 38 C.F.R. § 4.118, Diagnostic Code 7803. For superficial scars that were tender and painful on objective demonstration, a 10 percent evaluation was warranted under 38 C.F.R. § 4.118, Diagnostic Code 7804. Other scars were rated on limitation of function of the affected part. 38 C.F.R. § 4.118, Diagnostic Code 7805. Under Diagnostic Code 7802, scars, other than head, face, or neck, that are superficial and that do not cause limited motion with an area or areas of 144 square inches (929 sq. cm.) or greater warrant a 10 percent disability evaluation. Note (1): Scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with § 4.25 of this part. Note (2): A superficial scar is one not associated with underlying soft tissue damage. Under Diagnostic Code 7803, scars, superficial, unstable, warrant a 10 percent disability evaluation. Note (1): An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2): A superficial scar is one not associated with underlying soft tissue damage. Under Diagnostic Code 7804, scars, superficial, painful on examination, warrant a 10 percent disability evaluation. Note (1): A superficial scar is one not associated with underlying soft tissue damage. Note (2): In this case, a 10-percent evaluation will be assigned for a scar on the tip of a finger or toe even though amputation of the part would not warrant a compensable evaluation. (See § 4.68 of this part on the amputation rule.) Under diagnostic code 7805, scars, other; are rated on limitation of function of affected part. With regard to the old rating criteria, the veteran's scar has been found to be painful. As such, a 10 percent disability evaluation is warranted under Diagnostic Code 7804. This is the highest schedular disability evaluation under this Code. As noted above, a 10 percent disability evaluation under Diagnostic code 7803 requires poorly nourished scars with repeated ulceration. There has been no demonstration of either poor nourishment or repeated ulceration with regard to the scar. As to limitation of motion, the Board notes that the extremity has been amputated. As to the new criteria, the Board notes that an increased evaluation under DC 7801 or 7802 is not warranted as the veteran's scar area does not exceed 39 sq. centimeters. An increased evaluation is also not warranted under DC 7803 as the veteran's scar has not been shown to be unstable. As to DC 7804, the Board notes that the veteran has reported that his scar is painful, which warrants a 10 percent disability evaluation. Extraschedular Consideration Turning to the question of an extraschedular rating, it is provided under 38 C.F.R. § 3.321(a) that the provisions contained in the rating schedule will represent as far as can practicably be determined, the average impairment in earning capacity in civil occupations resulting from disability. To accord justice to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. The regulation provides an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The Board notes that the veteran was hospitalized in March 2002 for his right below the knee amputation, which resulted in a temporary total disability evaluation being assigned until October 1, 2002. The treatment records covering the period of time subsequent to the veteran's surgery reveal that the veteran's amputation has been properly healing. Moreover, the VA examination reports and outpatient treatment records covering the period of time prior and subsequent to the amputation make no reference to interference with employment. Furthermore, the assigned schedular disability evaluations contemplate interference with employment. In view of these findings and in the absence of evidence, the Board concludes that the schedular criteria adequately contemplates the nature and severity of the veteran's service-connected degenerative joint disease of the right ankle postoperative with internal fixation and the subsequent below-the-knee amputation and that the record does not suggest, based upon these findings documented within the clinical reports, that the appellant has an "exceptional or unusual" disability such to require referral to the Under Secretary for Benefits or the Director, Compensation and Pension Service. ORDER A 30 percent evaluation for degenerative joint disease of the right ankle postoperative with internal fixation is granted from October 28, 1995, to March 5, 2002, subject to regulations governing monetary benefits. An evaluation in excess of 40 percent for a right below- the-knee amputation is denied. A 10 percent evaluation for a painful scar as a residual of the right below the knee amputation is granted from March 5, 2002, subject to regulations governing monetary benefits. H. N. SCHWARTZ Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.