Citation Nr: 0300372 Decision Date: 01/08/03 Archive Date: 06/02/03 DOCKET NO. 99-20 100 DATE JAN 08, 2003 On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to an evaluation in excess of 30 percent for cancer of the larynx. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. M. Panarella, Counsel INTRODUCTION The veteran served on active duty from April 1954 to April 1964, from July 1964 to August 1970, and from December 1970 to November 1974. A perfected appeal to the Board of Veterans' Appeals (Board) of a particular decision entered by a Department of Veterans Affairs (VA) regional office (RO) consists of a notice of disagreement in writing received within one year of the decision being appealed and, after a statement of the case has been furnished, a substantive appeal received within 60 days of the issuance of the statement of the case or within the remainder of the one-year period following notification of the decision being appealed. The present case arises from an October 1998 rating action, with which the veteran expressed disagreement in November 1998. A statement of the case was issued, and the veteran perfected his appeal upon receipt at the RO of a VA Form 9 (Appeal to Board of Veterans' Appeals). The appeal was certified to the Board and, in June 2001, the Board remanded the case to the RO. The Board notes that the service connection issues that were before the Board in June 2001 were granted by the RO during the pendency of this appeal. Therefore, they are no longer subject to appellate review. FINDINGS OF FACT 1. By a rating action dated in October 1998, the RO reduced the veteran's assigned disability rating for cancer of the larynx from 100 percent to 30 percent. 2. Upon submission of a substantive appeal in October 1999, the veteran perfected an appeal of the aforementioned issue. 2 - 3. In June 2001, the Board remanded the issue to the RO. 4. By a rating action dated in May 2002, the RO continued its denial of an increased disability rating for cancer of the larynx and granted a total disability evaluation based on individual unemployability (TDIU) effective from February 1999. 5. In a written statement signed by the veteran and received by the Board in December 2002, the veteran advised that he wished to withdraw his appeal. 6. The veteran's request to withdraw his appeal was received by the Board prior to the promulgation of a decision. CONCLUSION OF LAW The criteria for withdrawal of the appeal have been met. 38 U.S.C.A. 7105(d)(5) (West 1991); 38 C.F.R. 20.202, 20.204(b), (c) (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION As set forth in the Introduction to this decision, by a rating action dated in October 1998, the RO decreased the assigned rating for cancer of the larynx. Thereafter, the steps necessary to perfect an appeal as to that issue were accomplished, and, as mentioned above, the veteran's appeal was forwarded to the Board. During the pendency of the appeal, the RO awarded TDIU to the veteran. In December 2002, the veteran submitted a signed statement in which he requested to withdraw his appeal. Specifically, he wrote as follows: There is no further need to review my appeal case, as I am now receiving 100% disability rating and compensation ... I'm well happy - 3 - with the decision. In my opinion there is no further need for an appeal. Under applicable criteria, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. 7105(d)(3). A substantive appeal may be withdrawn in writing at any time prior to the promulgation of a decision by the Board. 38 C.F.R. 20.202, 20.204(b)). Withdrawal may be made by the veteran or by his representative, except that a representative may not withdraw a substantive appeal that was personally filed by the appellant without the express written consent of the appellant. 38 C.F.R. 20.204(c). In the case at hand, prior to the promulgation of a decision by the Board, the appellant expressed his desire to withdraw his appeal pending before the Board. As a result of this withdrawal, no allegations of error of fact or law remain before the Board for consideration with respect to that issue. Consequently, the veteran's appeal is dismissed, without prejudice. ORDER The appeal is dismissed. WARREN W. RICE, JR. Member, Board of Veterans' Appeals 4 - 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. - 5 - 240863060 030305 1170365 03-03778 DOCKET NO. 96-39 815 DATE MAR 05 2003 On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for sinusitis. 2. Entitlement to service connection for arthritis of the right knee. 3. Entitlement to service connection for hypertension. 4. Entitlement to a rating in excess of 30 percent for residuals of hysterectomy. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Douglas, Counsel INTRODUCTION The veteran had active service, including from February 1974 to December 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 1995 and September 1998 rating decisions by the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). In January 1998 the Board remanded the issues of entitlement to service connection for the residuals of sinusitis, arthritis of the knee, and hypertension for additional development and referred the issue of service connection for residuals of hysterectomy to the RO for appropriate action. In September 1998 the RO granted service connection for residuals of hysterectomy, rated 30 percent, effective from December 12, 1980, (because of the subsequent receipt of service medical records after a December 1981 rating decision, which denied service connection for that disability), and granted special monthly compensation for anatomical loss of a creative organ. Subsequently, the veteran perfected her appeal for an increased rating. The January 1998 Board remand also instructed the RO to clarify whether the veteran's claim for arthritis of the knee involved the right or left knee. In correspondence dated in August 2000 she indicated that her claim pertained to the right knee. The RO addressed this matter in a December 2000 supplemental statement of the case. In September 1997 the veteran testified at a Travel Board hearing one of the undersigned Board Members, and in October 2002 she testified at another Travel Board hearing before another of the undersigned Board Members. Copies of the transcripts of those hearings are of record. As the Board Members presiding at the - 2 - hearings must participate in the decisions on the claims (See 38 C.F.R. 20.707 (2002)), this appeal is being decided by a panel of three Members of the Board. In correspondence dated in November 2002 the veteran raised a claim of service connection for depression. This matter is referred to the RO for appropriate action. FINDINGS OF FACT 1. The veteran had acute episodes of sinusitis in service; chronic sinusitis was not manifested in service and is not currently shown. 2. Arthritis of the right knee was not manifested in service or in the first postservice year, and is not shown to be related to service or to the veteran's service-connected residuals of hysterectomy. 3. Hypertension was not manifested in service or in the first postservice year, and is not shown to be related to service. 4. The veteran is presently receiving the maximum schedular rating for residuals of partial hysterectomy; there is no evidence of any unusual circumstances related to this disorder. CONCLUSIONS OF LAW 1. Service connection for sinusitis is not warranted. 38 U.S.C.A. 1110, 1131, 5107 (West 1991 & Supp. 2002); 38 C.F.R. 3.303 (2002). 2. Service connection for arthritis of the right knee is not warranted. 38 U.S.C.A. 1110, 1112, 1113, 1131, 1137, 5107 (West 1991 & Supp. 2002); 38 C.F.R. 3.303, 3.307, 3.309 (2002). - 3 - 3. Service connection for hypertension is not warranted. 38 U.S.C.A. 1110, 1112, 1113, 1131, 1137, 5107 (West 1991 & Supp. 2002); 38 C.F.R. 3.303,, 3.307, 3.309 (2002). 4. A rating in excess of 30 percent for residuals of hysterectomy is not warranted. 38 U.S.C.A. 1155, 5107 (West 1991 & Supp. 2002); 38 C.F.R. 4.1, 4.116, Code 7618 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes at the outset that there has been a significant recent change in VA law. On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA) (codified at 38 U.S.C.A. 5100 et seq.) became law. Regulations implementing the VCAA have also been published. 38 C.F.R. 3.102, 3.156(a), 3.159, 3.326(a). The VCAA and implementing regulations apply in the instant case. See VAOPGCPREC 11-2000. The Board finds that the applicable mandates of the VCAA and implementing regulations are met. The veteran was notified of the VCAA provisions by correspondence dated in February 2001 and the service connection claims were denied on the merits in an August 2001 supplemental statement of the case. Her increased rating claim was appropriately addressed in an August 2001 statement of the case. The RO has advised the veteran of the evidence necessary to substantiate her claims by various documents during the course of this appeal. These documents adequately notified the veteran of the evidence necessary to substantiate the matters on appeal and of the action to be taken by VA. As the veteran has been kept apprised of what she must show to prevail in her claims, what information and evidence she is responsible for, and what evidence VA must secure, there is no further duty to notify. See Generally Quartuccio v. Principi, 16 Vet. App. 183 (2002). - 4 - The VCAA provides a revised duty to assist that requires VA make continued efforts to obtain records from a federal government department or agency unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. See 38 C.F.R. 3.159(c). Although the veteran states she discussed the possibility of a relationship between her present right knee arthritis and the residuals of her hysterectomy with VA personnel, she also stated she did not believe those conversations had been documented in her medical records. Therefore, the Board finds further attempts to obtain any records would be futile. In claims for disability compensation the VCAA requires VA provide medical examinations or obtain medical opinions when necessary for an adequate decision. A medical examination or medical opinion is deemed to be necessary if the record does not contain sufficient competent medical evidence to decide the claim, but includes competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability, establishes that the veteran suffered an event, injury, or disease in service, or has a disease or symptoms of a disease manifest during an applicable presumptive period, and indicates the claimed disability or symptoms may be associated with the established event, injury, or disease. See 38 C.F.R 3.159(c)(4). The veteran underwent VA compensation examinations pertinent to her claims for sinusitis and arthritis in July 2001 and the Board finds the available medical evidence is sufficient for equitable determinations as to these matters. Regarding hypertension, the record does not show that the veteran had such disability during active service. Although she claims she was told she had high blood pressure within the first post-service year, there is no competent evidence demonstrating any such finding, and she has reported there are no medical records available to support this claim. In addition, the record shows she received a VA examination in December 1981, approximately one year after service, which reported blood pressure findings of 115/70 with no complaints, symptoms, or diagnoses related to hypertension. The Board also notes the veteran is presently receiving the maximum schedular rating possible for her service-connected - 5 - residuals of hysterectomy. Therefore, an additional compensation examination as to this issue would serve no useful purpose. For these reasons, a medical examination or opinion as to these matters is not necessary for an adequate decision. In the circumstances of this case, any additional development or notification would serve no useful purpose. Sabonis v. Brown, 6 Vet. App. 426 (1994). The duty to assist and duty to notify provisions of the VCAA have been fulfilled. Service Connection Claims Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. 1110, 1131; 38 C.F.R. 3.303. Additionally, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. 3.310. Service connection can also be granted for certain chronic diseases, including arthritis and hypertension, if manifest to a degree of 10 percent or more within one year of separation from active service. 38 U.S.C.A. 1112(a)(1), 1113; 38 C.F.R. 3.307, 3.309(a). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that when a claimed disorder is not included as a presumptive disorder direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during the service. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. 3.303(d). For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish - 6 - chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. 3.303(b). The Court has held that "where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required." Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992) (Court held that a witness must be competent in order for his statements or testimony to be probative as to the facts under consideration). The Federal Circuit has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The Federal Circuit has also held that a veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. 3.102. Sinusitis Service medical records show the veteran was treated for acute sinusitis in September 1977. She complained of sinus problems again in December 1977 and diagnoses of upper respiratory infection and sinusitis were provided. She complained of sinus headaches again in January 1978, but no diagnosis was provided. Her October 1980 separation examination revealed a normal clinical - 7 - evaluation of the sinuses; however, in her report of medical history she complained of sinus congestion once per week. The veteran's December 1981 VA examination is negative for complaint or diagnosis related to sinusitis. Private medical records dated from August 1987 to January 1996 are negative for complaint or treatment for sinusitis prior to March 1994. VA records include no report of treatment for sinusitis earlier than January 1995. At her personal hearing before an undersigned Board Member in September 1997 she testified that during service she was provided a nasal spray and after service continued to use an over- the-counter spray to treat the disorder. On VA examination in July 2001 the veteran complained of nasal congestion beginning in approximately 1975 which had increased in severity in the 1990's. The examiner noted a review of the record revealed no history or documentation of localized sinusitis, chronic sinusitis, or allergic attacks. The diagnoses included chronic rhinitis, with a mild history of periodic congestion, nasal turbinates; and no evidence of sinusitis. It was noted X-ray examination revealed normal sinuses. The examiner stated it was unlikely the veteran had sinusitis related to service and, in essence, that her description of symptoms in service was quite similar to her present symptoms which were more consistent with a common cold. The July 2001 VA medical opinion that the veteran has no present chronic sinusitis related to service is persuasive. The opinion was based upon a thorough examination and review of the available medical evidence. Although the veteran sincerely believes she has sinusitis related to her time in service, she is not competent to offer opinions on questions of medical causation or diagnosis. Espiritu, 2 Vet. App. 492. A threshold requirement, current existence of the disability claimed, is not met. Therefore, service connection is not warranted. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Here, the preponderance of the evidence is against the veteran's claim. - 8 - Arthritis of the Right Knee Service medical records are negative for complaint, treatment, or diagnosis related to right knee arthritis or injury. Records show she underwent a hysterectomy in November 1979 with no unusual complications. VA examination December 1981 was negative for complaint or diagnosis related to right knee arthritis. In her April 1995 application for VA benefits, the veteran requested service connection for arthritis of the knee due to military training. She reiterated her claim in her June 1996 notice of disagreement, but in her August 1996 substantive appeal she stated, in essence, that her arthritis was a result of not having been provided estrogen or calcium pills after her hysterectomy in service. She reiterated her claim as to a relationship between her arthritis and medication she believed she should have taken after her hysterectomy in subsequent correspondence and personal hearing testimony. She noted she had discussed this matter with someone at a VA clinic in approximately 1998 or 1999, but that she did not believe it had been documented because it had been stated casually. Private medical records dated in August 1996 show she complained of an insidious onset of right knee pain subsequent to an accident 4 years earlier. It was noted X-rays revealed some degenerative changes with lipping of the sides of the tibial plateau and femoral condyles. On VA examination in July 2001 the veteran reported the onset of right knee problems and arthritis after a fall in approximately 1991. Reports indicate the examiner reviewed the veteran's claims file in conjunction with the examination. It was noted that X-ray examination revealed extensive degenerative joint disease. The diagnoses included degenerative arthritis of the right knee. The examiner stated, however, that the examination revealed no relationship between the veteran's right knee arthritis and her hysterectomy in service and that it was more likely that her arthritis started after service. - 9 - The July 2001 VA medical opinion is persuasive that the veteran's right knee arthritis was not incurred as a result of an injury or disease during active service and is not proximately due to her service-connected hysterectomy. The opinion was based upon a thorough examination and review of the available medical evidence. Although she believes this disorder is related to events in service, she is not competent to offer opinions on questions of medical causation or diagnosis. Espiritu, 2 Vet. App. 492. Therefore, service connection is not warranted. The preponderance of the evidence is against her claim. Hypertension Service medical records are negative for complaint, treatment, or diagnosis related to hypertension or high blood pressure. The veteran's October 1980 separation examination revealed a normal clinical evaluation of the cardiovascular system. She denied any problem with high blood pressure in her report of medical history. VA examination in December 1981 was negative for complaint or diagnosis for hypertension or high blood pressure. Blood pressure of 115/70 was reported at that examination. Postservice medical records include no report of hypertension or high blood pressure prior to April 1990 and no opinion relating a present diagnosis of hypertension to any incident of service. At her personal hearing in September 1997 the veteran testified that she was informed she had high blood pressure in 1981, at a county health department office. She later stated it was possible it was after 1981. In an August 2000 statement she reported she started school at a community college in 1980, and that in the summer of 1981 she was informed on several occasions that she had high blood pressure. She also noted that she had unsuccessfully attempted to obtain records to support her claim from the college dispensary and had been informed that they did not keep records after a certain amount of time. She reiterated her claim at her October, 2002 personal hearing and reported that she was first provided medication for hypertension in the 1990's. She stated, in essence, that she self-treated her symptoms of hypertension in the 1980's because she did not have any health insurance. - 10 - Based upon a comprehensive review of the record, the Board finds no probative evidence has been submitted demonstrating that the veteran's hypertension is due to an injury or disease incurred in, aggravated by, or otherwise related to service. No competent evidence has been provided demonstrating the disorder was manifest to a degree of 10 percent or more in the first postservice year. In fact, service separation and VA examinations in October 1980 and December 1981 revealed no related complaints, findings, or diagnoses, and the veteran has reported that she did not begin taking medication for this disorder prior to the 1990's. The Board finds, in the absence of any probative evidence to the contrary, that the 1980 and 1981 examination reports are persuasive evidence that hypertension was not incurred during service or manifest to the requisite degree in the first postservice year. Therefore, service connection is not warranted. The preponderance of the evidence is against the veteran's claim. Increased Rating Claim Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating 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. It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. 4.2. Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). Evaluation of disabilities based upon manifestations not resulting from service-connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses is prohibited. 38 C.F.R. 4.14. - 11 - When there is a question as to which of two evaluations to apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating, otherwise the lower rating shall be assigned. 38 C.F.R. 4.7. In exceptional cases where evaluations provided by the Rating Schedule are found to be inadequate an extraschedular evaluation may be assigned which is commensurate with the veteran's average earning capacity impairment due to a service-connected disorder. 38 C.F.R. 3.321(b). Residuals of Hysterectomy The Rating Schedule provides ratings for removal of the uterus, including corpus, for 3 months after removal (100 percent), and thereafter (30 percent). 38 C.F.R. 4.116, Code 7618. Based upon the evidence of record, the Board finds that a rating in excess of 30 percent for the service-connected residuals of hysterectomy is not warranted. The record shows the veteran was awarded and is presently receiving the highest possible rating for removal of the uterus without removal of both ovaries. (The veteran testified in October 2002 that her hysterectomy was partial) See 38 C.F.R. 4.116, Code 7617. There is no evidence that her November 1979 hysterectomy included removal of the ovaries. Although she complains of additional symptoms related to the in-service procedure, including cramping, there is no basis for a higher or separate schedular rating from the date of her separation from service in December 1980. See Fenderson v. West, 12 Vet. App. 119, (1999). There is also no evidence of any unusual or exceptional circumstances, such as marked interference with employment or frequent periods of hospitalization, related to this disorder that would take the case outside the norm so as to warrant an extraschedular rating. Hence, referral by the RO to the Chief Benefits Director of VA's Compensation and Pension Service, under the provisions of 38 C.F.R. 3.321(b), was not required. See Bagwell v. Brown, 9 Vet. App. 337 (1996). - 12 - The Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the veteran or his representative, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board finds no provision upon which to assign a higher rating. The preponderance of the evidence is against the claim. ORDER Service connection for sinusitis is denied. Service connection for arthritis of the right knee is denied. Service connection for hypertension is denied. A rating in excess of 30 percent for the residuals of hysterectomy is denied. BARBARA B. COPELAND GEORGE R. SENYK Member, Board of Veterans' Member, Board of Veterans' Appeals Appeals WAYNE BRAEUER 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 - 13 - 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, 19881" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you. - 14 - 132321115 030325 1226530 03-05679 DOCKET NO. 98-17 505 DATE MAR 25, 2003 On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to an initial increased evaluation for tinnitus, currently evaluated as 10 percent disabling. 2. Entitlement to an initial increased (compensable) evaluation for bilateral defective hearing. [The issue of entitlement to an initial increased (compensable) evaluation for postoperative septal deviation will be the subject of a subsequent Board decision] REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Alice A. Booher, Counsel INTRODUCTION The veteran had active service from June 1959 to May 1961. The veteran filed his initial claim for compensation benefits in 1998. This appeal to the Board of Veterans Appeals (the Board) is from rating action taken by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York in 1998 which granted service connection for the disabilities herein concerned, and assigned noncompensable ratings for each from February 19, 1198, the date of the veteran's claim. During the course of the pending appeal, the RO assigned a 10 percent rating for the veteran's tinnitus effective the date of new regulations, June 11, 1999. However, notwithstanding that this is the maximum assignable for tinnitus under Code 6260, and might thus otherwise no longer be part of the appeal, for reasons which will be delineated below, that issue remains on appeal. See also AB v. Brown, 6 Vet. App. 35 (1993). Also, the veteran is contesting the disability evaluations that were assigned following the grant of service connection. This matter therefore is to be distinguished from one in which a claim for an increased rating of a disability has been filed after a grant of service connection. The United States Court of Appeals for Veterans Claims (the Court) has observed that in the latter instance, evidence of the present level of the disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994)). As to the original assignment of a disability evaluation, VA must address all evidence that was of record from the date the filing of the claim on which service connection was granted (or from other applicable effective date). See Fenderson v. West, 12 Vet. App. 119 (1999). Accordingly, the evidence pertaining to an original evaluation might require the issuance of separate, or "staged," - 2 - evaluations of the disability based on the facts shown to exist during the separate periods of time. Id. After the case arrived at the Board, the case underwent further development. This development has now been accomplished; the veteran participated therein, has been fully informed of the evidence obtained as a result thereof, and the case is ready, in pertinent part, for adjudication based on the entire evidence now of record. In correspondence received by the Board from the veteran in March 2003, he expressed his satisfaction with the results of the development with regard to defective hearing and tinnitus. However, he specifically disagreed with the nature of the development with regard to his residuals of a deviated nasal septum. As a result of the veteran's response as noted above, the Board is undertaking additional evidentiary development on the claim for entitlement to an initial increased (compensable) evaluation for postoperative septal deviation 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)). When it is completed, the Board will provide notice of the development as required by Rule of Practice 903. (67 Fed. Reg. 3,099, 3,105 (Jan. 23, 2002) (to be codified at 38 C.F.R. 20.903.) After reviewing any response to the notice, the Board will prepare a separate decision addressing this issue. FINDINGS OF FACT 1. Adequate development of the evidence now has been undertaken so as to provide for an equitable assessment of the veteran's service- connected hearing and tinnitus disabilities. 2. Prior to June 10, 1999, the veteran had persistent tinnitus as a result of acoustic trauma. 3. Since June 1999, the veteran's tinnitus has been continuous. - 3 - 4. Whether measured before or since June 1999, results of which are consistent with one another, the veteran's hearing acuity has slowly deteriorated but remains primarily at the higher rather than lower conversational levels, most consistently measured as literal I and I. 5. His hearing acuity is not so unusual, as certified by audiologists as to require special assessments. CONCLUSIONS OF LAW 1. The criteria for a 10 percent evaluation and no more for tinnitus prior to June 10, 1999, have been met. 38 U.S.C.A. 1151, 5103A, 5107 (West 2002); 38 C.F.R. 4.87, Diagnostic Code 6260 (1998). 2. The criteria for an evaluation in excess of 10 percent since June 10, 1999, have not been met. 38 U.S.C.A. 1151, 5103A, 5107 (West 2002); 38 C.F.R. 4.37, Diagnostic Code 6260 (2002). 3. The criteria for a compensable evaluation for bilateral hearing loss before or since June 1999 have not been met. 38 U.S.C.A. 1155, 5103A, 5107 (West 1991 & Supp. 2002); 38 C.F.R. 4.85, 4.86, Diagnostic Code 6100 (as in effect prior to 1999, and 2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS General Considerations During the pendency of this appeal, on November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, - 4 - 114 Stat. 2096 (2000). The Act 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. See Karnas v. Derwinski, 1 Vet. App. 308 (1991). The new law eliminates the concept of a well-grounded claim, and redefines the obligations of VA with respect to the duty to assist claimants in the development of their claims. First, VA has a duty to notify the veteran and his representative, if represented, of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. 5102 and 5103 (West Supp. 2002). Second, VA has a duty to assist the veteran in obtaining evidence necessary to substantiate the claim. VA has promulgated revised regulations to implement these changes in the law. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. 3.102, 3.156(a), 3.159 and 3.326(a)). The intended effect of the new regulations is to establish clear guidelines consistent with the intent of Congress regarding the timing and the scope of assistance VA will provide to a claimant who files a substantially complete application for VA benefits, or who attempts to reopen a previously denied claim. The Board finds that VA's duties under the law and recently revised implementing regulations have been fulfilled with respect to the claim for higher schedular ratings for hearing loss and tinnitus. The veteran was provided adequate notice as to the evidence needed to substantiate his claim. The Board concludes that the discussions in the rating decision, the statements of the case (SOC) in September 1998 and September 1999, the supplemental statements of the case (SSOCs) of July 1999, April and June 2002, and letters sent to the veteran including most recently in December 2002 and February 2003, informed him and his representative of the information and evidence needed to substantiate the claims and complied with VA's notification requirements. The RO also supplied the veteran with the applicable regulations in the SOC and SSOCs. The basic elements for establishing entitlement to an increased rating have remained unchanged despite the change in the law with respect to duty to assist and notification requirements, and of course, notwithstanding any specific regulatory - 5 - changes with regard to given disabilities as described herein. The VA has no outstanding duty to inform the veteran that any additional information or evidence is needed. The Board also finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the defective hearing and tinnitus rating issues has been obtained. All relevant evidence identified by him was obtained and considered. The claims file contains his service medical records. Post-service treatment records have also been obtained. The veteran has been afforded disability evaluation examinations by VA to assess the severity of his disability. With regard to the adequacy of the examinations, the Board notes that the examination reports reflect that the examiners recorded the past medical history, noted the veteran's current complaints, conducted examinations, and offered appropriate assessments and diagnoses. And because the veteran expressed some concern that he had not been examined fairly, the Board effectuated a recent reexamination of the veteran, for which he reported, and results from which are now in the file. He has not indicated that any further testing is necessary or that he has any objections to the findings on the recent evaluations. Pursuant to the requirements discussed in Quartuccio v. Principi, 16 Vet. App. 183 (2002), on several occasions, communications with the veteran discussed whether he or VA was responsible for obtaining given evidence. In the context of the examination most recently by the Board, and notifications related thereto, that has also been clarified, and he has indicated that he understands the relative responsibilities and all available evidence now in the file. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the veteran's claim. The Board finds that the examination reports coupled with the other evidence of record provide sufficient information to adequately evaluate the veteran's claim. Therefore, no further assistance to the veteran with the development of evidence with regard to hearing loss and tinnitus is required. - 6 - In the circumstances of this case, a remand to have the RO take additional action under the new Act and implementing regulations 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 the VA with no benefit flowing to the veteran are to be avoided). The VA has satisfied its obligation to notify and assist the veteran in this case. Further development and further expending of VA's resources is not warranted. Taking these factors into consideration, there is no prejudice to the veteran in proceeding to consider the claims on the merits. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity in civil occupations. See 38 U.S.C.A. 1155. Separate diagnostic codes identify the various disabilities. Under 38 U.S.C.A. 5110(g) (West 1991), it states the following: Subject to the provisions of section 5101 of this title, where compensation ... is awarded or increased pursuant to any Act or administrative issue, the effective date of such award or increase shall be fixed in accordance with the facts found but shall not be earlier than the effective date of the Act or administrative issue. In no event shall such award or increase be retroactive for more than one year from the date of application therefor or the date of the administrative determination of entitlement, whichever is earlier. See also 38 C.F.R. 3.114(a) (2002). Under that regulation, VA clarifies that if a claim for an increased evaluation is reviewed on the initiative of VA within one year from the effective date of the law or VA issue, benefits may be authorized from the effective date of the law or VA issue. 38 C.F.R. 3.114(a)(1) (2002). - 7 - When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Tinnitus Criteria The Board notes that the criteria for tinnitus changed on June 10, 1999. Where a law or regulation changes after a claim has been filed or reopened, but before the administrative or judicial appeal process has been concluded, the version most favorable to the veteran applies unless otherwise indicated. Marcoux v. Brown, 9 Vet. App. 289 (1996); Karnas v. Derwinski, 1 Vet. App. 308 (1991). Under the previous criteria effective prior to June 10, 1999, persistent tinnitus as a result of head injury, concussion, or acoustic trauma warranted a 10 percent evaluation. 38 C.F.R. 4.87a, Diagnostic Code 6260 (effective prior to June 10, 1999). Note (1) thereafter reflects that a separate evaluation for tinnitus may be combined with an evaluation under Diagnostic Code 6100, 6200 or 6204 or other diagnostic codes, except when tinnitus supports an evaluation under one of those diagnostic codes. Under the criteria effective June 10, 1999, a 10 percent evaluation may be assigned for recurrent tinnitus. 38 C.F.R. 4.87, Diagnostic Code 6260 (effective June 10, 1999). [A proposal is currently pending with regard to adding a Note (2) thereafter, to reflect that there will be assignment of only a single evaluation for recurrent tinnitus, whether the sound is perceived in one ear, both ears, or in the (entire) head. However, even if now in effect, this proposal would not impact the veteran's situation or rating one way or the other]. - 8 - Factual Background The veteran's DD 214 shows that he was recognized as a 2d Class gunner for a recoilless rifle (106 RR) and marksman (rifle). His occupational specialty was shown as heavy weapons infantryman. On the initial VA examination in June 1998, the veteran reported that while involved in war games in service, he was on a bank under a tank when a round was fired directly over his head, and he experienced temporary hearing loss, loud high-pitched ringing in both ears, and pain. The ringing had continued since that time but he had tried, and had been able, to ignore it some of the time. On VA examination in April 2002, the veteran reported that he had had ringing in his ears and pain since the tank had fired rounds over his head in service. He reported that the tinnitus was high pitched and loud, and had been present bilaterally since then. He was able to ignore it much of the time. On VA examination in December 2002, the veteran reported that he had had constant bilateral ringing in his ears ever since the tank had fired in service. There had been no vertigo or other associated symptoms. He indicated that he had occasional pain in the right ear. Analysis The Board notes that in the initial noncompensable rating which took effect with the date of claim, February 19, 1998, the RO specifically denied that a compensable evaluation was warranted prior to June 10, 1999, because the veteran's tinnitus was not the result of a head injury, concussion, or acoustic trauma. However, as noted in several presentations filed by his representative, and confirmed by post-service evaluations including an opinion by the most recent VA examiner who was asked for an opinion in that regard, the veteran's tinnitus was clearly the result of acoustic trauma. And while it has been said that, - 9 - understandably, the veteran tried, and at times was able, to ignore it, there is no evidence to contradict that it was then, and has always been, persistent. Accordingly, since the veteran's tinnitus at the time of his claim and since was both the result of acoustic trauma and persistent, his symptoms clearly fit within the criteria for a 10 percent rating under the old schedular provisions. The Board has carefully reviewed the evidence of record and finds that the evidence supports the grant of a 10 percent evaluation for tinnitus from February 19, 1998 to June 10, 1999. As for the issue of entitlement to a rating in excess of 10 percent since June 1999, the Board notes that 10 percent is the highest allowable evaluation under Diagnostic Code 6260. There is no evidence, nor for that matter, even a claim, that his tinnitus is a result of other than acoustic trauma, and thus various other codes such as relating to tinnitus due to brain tumor, etc., are inapplicable. Defective Hearing Criteria As noted above, under the applicable criteria, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. 1155; 38 C.F.R. Part 4 (2002). Separate diagnostic codes identify the various disabilities. VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath, op. cit. As stated in the September 2001 supplemental statement of the case, changes were made in June 1999 to the Schedule for Rating Disabilities for diseases of the ear and other sense organs, as set forth in 38 C.F.R. 4.85, 4.86, and 4.87 (2002). Where the law or regulation changes after a claim has been filed, but before the administrative or judicial appeal process has been concluded, the version more favorable to the veteran will apply. Karnas, op. cit. - 10 - Under the old criteria, (in effect prior to June 1999), evaluations of bilateral defective hearing ranged from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second, with 11 auditory acuity levels designated from Level 1 for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. 4.85, 4.87, Diagnostic Codes 6100 to 6110 (effective prior to June 10, 1999). Also under the old criteria, Table VIa was used only when the Chief of the Audiology Clinic certified that language difficulties or inconsistent speech audiometry scores made the use of both puretone average and speech discrimination inappropriate. 38 C.F.R. 4.85(c) (effective prior to June 10, 1999). Under the new criteria, evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. To evaluate the degree of disability from bilateral service-connected defective hearing, the rating schedule establishes eleven auditory acuity levels designated from level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. 4.85 and Part 4, Diagnostic Code 6100 (2002). Also under the new criteria, Table VIa is used when the examiner certifies that the use of speech discrimination testing is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. 4.86. 38 C.F.R. 4.85(c) (2002). Under 38 C.F.R. 4.86(a) (2002), it states that when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for - 11 - hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear is to be evaluated separately. Id. The United States Court of Appeals for Veterans Claims (Court) has noted that the assignment of disability ratings for hearing impairment are derived at by a mechanical application of the numeric designations assigned after audiological evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Factual background and Analysis On VA examination in June 1998, on the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 60 75 75 LEFT 20 20 45 70 70 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 96 percent in the left ear. On VA examination in April 2002, on audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 55 75 75 LEFT 20 30 45 75 70 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 100 percent in the left ear. - 12 - On VA examination in December 2002, audiological evaluation showed pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 60 85 75 LEFT 20 25 45 70 65 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 94 percent in the left ear. The examiner opined that the veteran was a candidate for binaural amplification. The examiner also opined that the cause of the veteran's defective hearing was the same as his tinnitus, namely acoustic trauma in service. Taking the results of all of these above cited audiometric evaluations, the veteran's hearing loss is primarily at the higher frequencies, which pursuant to the regulatory criteria in effect before and since June 1999, are not generally subject to compensation. The veteran's conversational voice range hearing loss has indeed been slightly progressive, but nonetheless, it is not now nor has it ever been at a level as to warrant compensation. And neither is it now of such peculiar nature as defined within the cited regulations as to require special assessments under the law in affect since June 1999. Further Considerations As addressed above, the factual circumstances of this case do not warrant the assignment of staged ratings pursuant to Fenderson, op. cit. The facts in each of the above defective hearing and tinnitus issues (except with regard to the rating of tinnitus prior to June 1999), reflect that a preponderance of - 13 - the evidence is against the increased rating in which case, the claim is denied. Gilbert, op. cit. Moreover, review of the record reveals that the RO has not expressly considered referral of the case to the Chief Benefits Director or the Director, Compensation and Pension Service for the assignment of an extraschedular rating under 38 C.F.R. 3.321 (b)(1) (2001). This regulation provides that to accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. The governing criteria for such an award 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. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. 3.321 (b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court has further held that the Board must address referral under 38 C.F.R. 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Having reviewed the record with these mandates in mind, the Board finds no basis for further action on this question. VAOPGCPREC. 6-96 (1996). ORDER Entitlement to a 10 percent evaluation for tinnitus from February 19, 1998 to June 10, 1999, is granted, subject to the controlling regulations applicable to the payment - 14 - of monetary benefits; entitlement to an evaluation in excess of 10 percent evaluation for tinnitus is denied. Entitlement to an initial increased (compensable) evaluation for bilateral defective hearing is denied. JEFF MARTIN Veterans Law Judge, 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.020346062 030115 DOCKET NO. 00-14 632 DATE JAN 15, 2003 On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for arthritis of the legs and hands. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The veteran served on active duty from May 1951 to April 1954. This case was previously before the Board of Veterans' Appeals (hereinafter Board) on appeal from adverse action by the Department of Veterans Affairs (hereinafter VA) Regional Office in St. Petersburg, Florida, (hereinafter RO). The case was remanded by the Board in May 2001. FINDINGS OF FACT In January 2003, the Board received written notification from the veteran requesting a withdrawal of his appeal. CONCLUSION OF LAW The criteria for withdrawal of a Substantive Appeal by the veteran have been met. 38 U.S.C.A. 7104, 7105 (d)(5) (West 1991 & Supp. 2002); 38 C.F.R. 20.202, 20.204 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under 38 U.S.C.A. 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn by the appellant or by his or her authorized representative, except that a representative may not withdraw a Substantive Appeal filed by the appellant personally without the express written consent of the appellant. 38 C.F.R. 20.204(c). Here, in correspondence received in January 2003, the veteran withdrew his appeal. There remain no allegations of errors of fact or law for appellate consideration. Accordingly, the appeal is dismissed without prejudice. ORDER The appeal is dismissed. BETTINA S. CALLAWAY 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: o 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. o 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. - 3 - 415151247 030307 1208484 03-04086 DOCKET NO. 96-16 726 DATE MAR 07 2003 On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for bronchitis. 2. Entitlement to service connection for otitis media. 3. Entitlement to service connection for a left ankle disorder. 4. Entitlement to service connection for a low back disorder. 5. Entitlement to service connection for a left thumb disorder. 6. Entitlement to service connection for gall bladder removal. 7. Entitlement to an initial evaluation in excess of 10 percent for left tibia fracture residuals. 8. Entitlement to an initial evaluation in excess of 10 percent for right ankle arthritis, synovitis, residuals of strain. (The issues of entitlement to service connection for a bilateral wrist and right knee disorders, and an initial evaluation in excess of 10 percent disabling for synovitis and chondromalacia of the left knee will be the subjects of a future decision.) REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD C. Chaplin, Counsel INTRODUCTION The veteran had active service from July 1988 to December 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of February 1995 from the Boise, Idaho, Regional Office (RO) of the Department of Veterans Affairs (VA). The RO, in pertinent part, granted service connection for chronic ligament strain of the right ankle, status post fracture of the left tibia, and patellofemoral syndrome of the left knee. A zero percent disability evaluation was assigned for each of these effective from September 1994. The RO denied service connection for left thumb injury, chronic ligament strain of the left ankle, patellofemoral syndrome of the right knee, tendonitis of the right wrist, tendonitis of the left wrist, gall bladder removal, and chronic thoracolumbar strain claimed as low back pain. - 2 - This matter also arises for a September 1996 rating decision that, in pertinent part, denied entitlement to service connection for bronchitis, and otitis media. In November 1996 the veteran, through her representative, canceled, in writing, a personal hearing scheduled at the RO. The Board remanded the case in September 1997 for additional development and readjudication of the claims. The Board's review of the record discloses that the current appeal is limited to the issues on the title page. The Board notes that issues in the September 1997 remand included entitlement to service connection for a psychiatric disorder that was originally claimed as depression as secondary to the service connected left lower extremity. In a November 2000 rating decision service connection was granted for dysthymic disorder directly related to military service and a 30 percent evaluation was assigned effective from March 1996. This was considered a full grant of this issue on appeal. The 1997 Board remand also included the issue of entitlement to service connection for a low back or thoracolumbar strain disorder including as a result of service-connected disability. In a November 1997 rating decision service connection was granted for chronic thoracic muscular strain with mild degenerative changes of the mid-thoracic spine. A 10 percent evaluation was assigned effective from September 1994. This was considered a partial grant of this issue on appeal and the issue of entitlement to service connection for a low back disorder remains on appeal. During the pending appeal, in a November 2000 rating decision, the RO assigned a 10 percent disability evaluation each for chronic ligament strain of the right ankle, status post fracture of the left tibia, and patellofemoral syndrome of the left knee effective from September 1994. - 3 - Although during the pending appeal, an increased evaluation was granted, the case is considered still on appeal for a higher evaluation. In AB v. Brown, 6 Vet. App. 35, 38 (1993), the United States Court of Veterans Appeals (since March 1, 1999, the United States Court of Appeals for Veterans Claims) (hereinafter CAVC) held that when the veteran expresses general disagreement with the assignment of a particular rating and requests an increase, the RO and the Board are required to construe the appeal as an appeal for the maximum benefit allowable by law or regulation and thus to consider all potentially applicable disability ratings. In a June 2002 rating decision the RO granted service connection for left knee ligament laxity secondary to the service-connected left knee synovitis and chondromalacia patella and assigned a 10 percent evaluation effective from February 2002. In September 2002 the RO most recently affirmed the determination previously entered. The case has been returned to the Board for further appellate review. The Board is undertaking additional development on the issues of entitlement to service connection for a right wrist disorder, left wrist disorder and right knee disorder and for an initial evaluation in excess of 10 percent disabling for synovitis and chondromalacia of the left knee, pursuant to authority granted by 67 Fed. Reg. 3,099, 3,104, (Jan. 23, 2002); 38 C.F.R. 19.9(a)(2)(2002). When it is completed, the Board will provide notice of the development as required by Rule of Practice 903. (67 Fed. Reg. 3,099, 3,105 (Jan. 23,2002); 38 C.F.R. 20.903 (2002). After giving the notice and reviewing your response to the notice, the Board will prepare a separate decision addressing these issues. FINDINGS OF FACT 1. A left ankle disorder, left thumb disorder, and gall bladder disease were not shown in service, or for many years thereafter; nor was osteoarthritis of the left ankle and low back shown disabling to a compensable degree during the first post service year. - 4 - 2. The veteran was treated in service for episodes of bronchitis. 3. The veteran was treated in service for otitis media and rule out otitis media. 4. The veteran's gall bladder was removed post service. 5. The veteran's right ankle disability is presently manifested by pain, ligamentous laxity and limited motion. 6. Residuals of a fracture of the left tibia are productive of not more than slight impairment; the probative evidence of record shows that scarring of the left tibia is tender and bothersome. 7. The probative, competent evidence of record establishes that bronchitis, a left ankle disorder, low back disorder, left thumb disorder, otitis media and gallbladder removal are not linked to active service on any basis; nor are a left ankle disorder or low back disorder causally related to a service-connected disability. CONCLUSIONS OF LAW 1. Chronic bronchitis, a low back disorder, a left ankle disorder, left thumb disorder, chronic otitis media and gall bladder removal were not incurred in or aggravated by active service; left ankle and low back disorders are proximately due to, the result of, or aggravated by a service-connected disability; nor may service connection be presumed for osteoarthritis of the left ankle or low back. 38 U.S.C.A. 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. 3.303, 3.307, 3.309, 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995) (2002). - 5 - 2. The criteria for an initial disability evaluation in excess of 10 percent for right ankle arthritis, synovitis, residuals of strain have not. been met. 38 U.S.C.A. 1155, 5103a, 5103A, 5107 (West 1991 and Supp. 2002); 38 C.F.R. 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5020, 5271 (2002). 3. The criteria for an evaluation in excess of 10 percent for left tibia fracture residuals have not been met; however, the criteria for a separate 10 percent evaluation for scars of the left tibia have been met. 38 U.S.C.A. 1155, 5103a, 5103A, 5107 (West 1991 and Supp. 2002), 38 C.F.R. 3.102, 4.3, 4.7, 4.40, 4.45, 4.71a, 4.118, Diagnostic Codes 5299-5262, 7804 (2001); 67 Fed. Reg. At 49,596 (to be codified at 38 C.F.R. 4.118, Diagnostic Code 7804). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary matter: Duty to Assist and to Notify There has been a significant change in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106- 475, 114 Stat. 2096 (2000). Among other things, this law redefines the obligations of VA with respect to t@e duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. This change in the law is applicable to all claims filed on or after the date of enactment of the VCAA of 2000, or filed before the date of enactment and not yet final as of that date. VCAA of 2000, Pub. L. No. 106-475, 7, subpart (a), 114 Stat. 2096, 2099- 2100 (2000); 38 U.S.C.A. 5107 note (Effective and Applicability Provisions); see generally Holliday v. Principi, 14 Vet. App. 280 (2001); see also Karnas v. Derwinski, 1 Vet. App. 308 (1991). VA. revised the provisions of 38 C.F.R. 3.159 effective November 9, 2000, in view of the new statutory changes. See 66 Fed. Reg. 45620- 45632 (August 29, 2001). - 6 - Where laws or regulations change after a claim has been filed or reopened and before the administrative or judicial process has been concluded, the version more favorable to the appellant will apply unless Congress provided otherwise or has permitted the Secretary of Veterans Affairs to do otherwise and the Secretary has done so. See Karnas v. Derwinski, 1 Vet. App. 308 (1991). The Board's consideration of the new regulations is not prejudicial to the appellant inasmuch as the regulations merely implement the VCAA and do not provide any rights other than those provided by the VCAA. VA has a duty to notify the appellant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. 5102 and 5103 (West Supp. 2002); 38 C.F.R. 3.159 (2002). The RO provided the appellant a copy of the applicable rating decision and forwarding letter that in combination notified her of the basis for the decision reached. The RO also provided the appellant a statement of the case and supplemental statements of the case that included a summary of the evidence, the applicable law and regulations and a discussion of the facts of the case. The appellant has been offered the opportunity to submit evidence and argument on the merits of the issues on appeal, and has done so. Further, she has obtained representation and her representative has prepared argument on her behalf. The appellant has been advised of evidence she could submit herself or to sufficiently identify evidence so that VA could obtain the evidence for her. The RO has secured outpatient treatment records and VA C&P examinations have been provided. The appellant has not indicated that any other probative evidence not already associated with the claims folder is available so there is no need to notify her as to whether VA would obtain it. - 7 - Such notice sufficiently placed the appellant on notice of what evidence could be obtained by whom and advised her of her responsibilities if she wanted such evidence to be obtained by VA. Quartuccio v. Principi, 16 Vet. App. 183 (2002). More specifically, the Board notes that in its September 2002 supplemental statement of the case, the RO provided the provisions of the VCAA and fully considered them in its adjudication of the veteran's appeal. In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent necessary; no further assistance to the appellant in developing the facts pertinent to her claim is required to comply with the duty to assist under both the former law and the new VCAA. 38 U.S.C.A. 5107(a), 5103 and 5103A (West Supp. 2002); 38 C.F.R. 3.159 (2002). Having determined that the duties to notify and to assist have been satisfied, the Board turns to an evaluation of the appellant's claim on the merits. I. Service connection claims Factual background Service medical records are negative for complaints or findings of a chronic left thumb disability during service and there was no evidence of a left thumb disability on discharge examination. The service medical records are negative for complaints or findings of a left ankle injury in service. There was no evidence of a left ankle disorder on the discharge examination. - 8 - Service medical records show no complaints or findings of a right or left wrist disorder in service. The upper extremities were clinically evaluated as normal at the discharge examination. Service medical records are negative for evidence of gall bladder disease or removal during service. A Report of Medical History in July 1988 notes that the veteran had a dislocated patella (right or left not specified) in 1983 and the examiner found no sequelae or recurrences. In the August 1989 Report of Medical History she reported being in good health except for the rod inside her left tibia. She also noted swollen or painful joints. She was on limited duty until released by orthopedics. Otherwise the clinical evaluation was normal. It was noted that she was over the maximum weight. In December 1990 she sought treatment at the Temple Urgent Care Center (Temple) for right ear loss of hearing and chest congestion. The discharge diagnosis was acute bilateral otitis media and bronchitis. When seen the following day, she was assessed with acute bronchitis. In January 1991 she presented to Temple with re-occurring bronchitis. The history noted that the veteran had been sick on and off with cough and bronchitis in December. She had been doing fine but was developing a bronchitis again. The examination noted that a hint of squeaks and rales in the right lung base cleared with coughing. Her chest X-ray was normal. The discharge diagnosis was bronchitis with normal chest X-ray.?? In February 1991 she sought treatment for chronic bronchitis. Her lungs were clear to auscultation but lung capacity was decreased from the normal capacity. Spirometry was within normal limits. - 9 - In July 1991 she was seen for follow-up of viral symptoms. The assessment was rule out left otitis media and rule out Eustachian tube obstruction. Approximately five days later, her ear canals were clear and the tympanic membranes normal. The assessment was a negative examination. In August 1991 when seen for follow-up of cold symptoms, there was a diagnosis of acute bronchitis. Five days later it was resolving. The separation examination is negative for any chronic residuals of bronchitis. In January 1992 she was seen for complaints of bilateral knee pain. There was crepitus of the left knee and surgical scar. Slight ecchymosis of the right knee. The assessment was chondromalacia patellar. There was no evidence of a right knee disability on discharge examination or the report of medical history. In August 1992 in service the veteran sought treatment for complaints of a back ache after moving furniture. Examination showed limitation of motion of the spine with tense muscles at T12- L3. The assessment was muscle strain of the low back. She was to return if needed. At the discharge examination in November 1992, the clinical evaluation of the spine was normal. The veteran denied recurrent back pain in the report of medical history. At the discharge examination in November 1992 the clinical evaluation was normal. The pertinent diagnoses were bilateral foot pain, not considered disabling and history of rod placement in the left tibia, not considered disabling. In the November 1992 Report of Medical History the veteran reported having had or having swollen or painful joints; ear, nose or throat trouble; adverse reaction to medication; broken bones; foot trouble; and motion sickness. She declared being right handed. She provided further explanation of the items checked. With regard to joint problems and foot trouble, she mentioned that it was suggested that she may have gout and testing was recommended. She was in the process of being treated at the ENT clinic. - 10- She had an adverse reaction to a specified medicine that caused a gastrointestinal upset. She suffered a broken left tibia when hit by a car in September 1988. She took medication for motion sickness when at sea or a passenger in a car. She Has in the process of being discharged for being over the weight limit standards. The examiner's comments noted that the testing for bilateral wrist and feet pain was within normal limits and she was on medication for two days. She was being followed by ENT for vertigo and had a follow-up appointment the following week. She had a rod in place for a left tibia fracture in September 1988. There was the possibility of removal of the rod. VA outpatient treatment records for the period from August to September 1994 show that in August 1994 she had complaints of joint pains and crepitus. On examination nearly every joint in her body cracked. She had free range of motion in her knees and back. No crepitus was noted. The assessment was chronic low back pain and joint pain. Approximately two weeks later she again had complaints of body aches all over. There was free range of motion in her back, pain on palpation in the right mid-back and obvious spasm. The assessment was back pain. The veteran was afforded a VA Compensation and Pension (C&P) examination in November 1994. She claimed that she injured her thumb in the accident when her left tibia was fractured. The examination revealed no left thumb deformity and only slight subjective tenderness at the metacarpal phalangeal joint. Range of motion was complete and the veteran had a normal grip. There was no abnormality of the left ankle except crepitus. There was a normal examination of the right knee except for crepitus. An X-ray of the lumbar spine revealed a normal lumbar spine. Clinical findings at the November 1994 VA examination included tenderness to palpation on the posterior aspect of both wrists. There was no swelling or erythema of the wrists. Her chest was clear to auscultation and percussion. - 11 - At the November 1994 VA examination the veteran reported having her gall bladder removed after service in 1993. She reported no residual symptoms at the time of the examination. The pertinent diagnosis was history of a cholecystectomy, no apparent sequelae related to this. The diagnoses at the November 1994 VA examination were chronic thoracolumbar strain; chronic ligament strain of both ankles; patellofemoral syndrome of both knees; status post hyperextension injury of the left thumb; status post fracture of the left mid- tibia, status post open reduction internal fixation. The veteran disagreed with the February 1995 rating decision wherein the RO denied service connection for multiple disorders and initiated this appeal. With her substantive appeal, she submitted duplicate copies of service medical records. The report of a VA C&P pulmonary examination in April 1996 notes that the veteran had episodes of bronchitis since childhood. She described her symptoms including wheezing. Her lungs were clear to auscultation with no wheezing evident. The diagnoses were episodic wheezing consistent with reactive airway disease to be further evaluated by pulmonary function tests and allergic rhinitis. An addendum noted that chest X-rays and pulmonary function tests were negative. The report of a VA C&P ear diseases examination in April 1996 notes a complaint of recurring ear infections. She reported having had recurring bouts of ear pain and on at least two occasions she was seen by a physician and told that she had otitis media. She described her symptoms and clinical findings were recorded. The pertinent diagnosis was history suggestive of episodic otitis media, nasal allergic symptoms, perennial. A VA examiner in April 1996 opined that in terms of the veteran's left ankle condition being secondary to the left tibial condition, there was a very good possibility that some of the pain was being experienced because of irritative symptoms from the intramedullary rod. This could also involve the ankle. - 12 - The veteran was going to seek consultation about removing the rod. The VA examiner could not establish a relationship between the low back pain, thoracolumbar strain and their relationship to the veteran's knee and ankle problems. He opined that it was as likely as not that these problems would have existed regardless of the knee and ankle problems. There was an addendum in June 1996 to the April 1996 VA examination of the joints. The examiner wrote: In terms of the relationship between this [veteran's] right knee condition and the left knee patellofemoral syndrome, I believe that they are totally separate. The [veteran] has bilateral patellofemoral syndrome and it is more likely than not that she would have developed pain in both of her knees regardless of the fact of one side from another. In addition to that, the [veteran] was diagnosed as having synovitis, both ankles, superimposed on chronic ligamentous strain. The question arose whether or not that was related to the [veteran's] intramedullary rod in the left tibia. The [veteran's] synovitis and ligamentous strain is most likely not related to the left tibial fracture. Certainly the synovitis is not related to that fracture. I believe, however, that the [veteran's] pain she is experiencing is being referred from that left tibial fracture area and is being caused by the intramedullary rod. After that is removed, I suspect that the [veteran's] pain will improve. It is common to see pain such as this in the face of fixation devices, particularly intramedullary rods. In a rating decision in September 1996, in pertinent part, the RO denied entitlement to service connection for bronchitis, otitis media, left ankle condition, right knee condition and low back pain. - 13 - A private outpatient treatment record shows the veteran was seen in October 1996 for evaluation of diffuse joint pains by RW, MD. She sought treatment advise and an opinion as to whether left ankle, right knee and low back pain could be related to a motor vehicle accident she had in September 1988. She related her various symptoms. Dr. RW stated that no specific examination was done. The veteran was straightforward and factual with her information. Dr. RW's assessment, in pertinent part, was that she had diffuse joint symptoms which could represent early osteoarthritis or another connective tissue disorder. Her left ankle and right knee were more uncomfortable than other joints and it was distinctly possible that this could be related to her September 1988 injury sustained in a motor vehicle accident. But the doctor felt it was difficult to make such a connection and would require an orthopedist who had more expertise with the type of injury she had to tell whether it was likely that her increased left ankle, right knee and low back pain have some relationship to the motor vehicle accident that occurred in September 1988. Dr. RW recommended that she see an orthopedist to evaluate her for the connection between her present specific joint pains and the September 1988 motor vehicle accident. The Board remanded the case in September 1997. VA outpatient treatment records for the period from January 1997 to February 1998 were secured. These show that the veteran sought treatment for complaints of joint pain, back pain, bilateral ear pain and other disorders. She had carpal tunnel surgery on the right wrist and planned to have surgery for left carpal tunnel. In December 1997 her ears were normal. Reports of pulmonary function tests in April 1996 and June 1998 show that overall ventilatory function was normal. - 14 - An X-ray in May 1998 revealed mild degenerative changes at the lumbar spine with slight disk space narrowing at the L3-4 level. May 1998 X-rays revealed normal elbow, bilaterally; normal bilateral wrists and hands, mild degenerative joint disease of the left ankle joint. The veteran was afforded multiple VA examinations in May 1998. Subjective symptoms were noted and clinical findings were reported. The examination of her ears was essentially normal. The impression was recurrent episodes of otitis media in a patient with perennial allergic upper respiratory symptomatology as well as asthma. The orthopedic examination noted that the intramedullary rod was still in place. She reported carpal tunnel procedures bilaterally in 1997 and 1998. VA outpatient treatment records were secured for the period from February 1998 to February 2002. These records show treatment for service-connected disorders, disorders for which she seeks service connection and are on appeal and unrelated disorders. Criteria Service connection In order to establish service connection for a claimed disability the facts must demonstrate that a disease or injury resulting in current disability was incurred, in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. 1110, 1131 (West 1991 & Supp. 2002); 38 C.F.R. 3.303 (2002). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. 3.303(d) (2002). - 15 - Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. Service connection may be granted for a disorder that is proximately due to, the result of, or aggravated by a service- connected disability. 38 C.F.R. 3.310(a) (2002); Allen v. Brown, 7 Vet. App. 439 (1995). A veteran who served in military service is presumed to be in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence that the disability manifested in service preexisted service will rebut this presumption. 38 U.S.C.A. 1111, 1137 (West 1991). In determining whether an injury or disease was incurred in or aggravated in service, the evidence in support of the claim is evaluated based on the places, types and circumstances of service as shown by service records, the official history of each organization in which the veteran served, the veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. 1154(a); 38 C.F.R. 3.3C3(a), 3.304. Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C.A. 1154(b) (West 1991); 38 C.F.R. 3.304(d) (2002). Where a veteran served continuously for 90 days or more during a period of war, or peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from the date of termination of such sen,ice to include a pre- existing chronic disease, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. 1101, 1112, 1113, 1137 (West 1991 & Supp. 2002); 38 C.F.R. 3.307, 3.309 (as amended, 67 Fed. Reg. 67,792-3 (November 7, 2002). - 16 - The CAVC has held that, in order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in- service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). When a disability is not initially manifested during service or within an applicable presumptive period, "direct" service connection may nevertheless be established by evidence demonstrating the disability was in fact incurred or aggravated during, the veteran's service. See 38 U.S.C.A. 1113(b) (West 1991 & Supp. 2002); 38 C.F.R. 3.303(d) (2002). A pre-existing injury or disease will be considered to have been aggravated by active service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. 1153 (West 1991); 38 C.F.R. 3.306(a) (2002). If such an increase is found, the presumption of aggravation is applicable and the condition is presumed aggravated unless the government points to a "specific finding" that the increase in the appellant's disability is due to the natural progression of the disease. See 38 U.S.C.A. 1153, Akins v. Derwinski, 1 Vet. App. 228, 232 (1991). The CAVC has found that this presumption of aggravation applies where there is a worsening of the disability regardless of whether the degree of worsening was enough to warrant compensation; and that the veteran need not show a specific link between his in- service activity and the deterioration of his pre-service disability. Browder v. Derwinski, 1 Vet. App. 204, 207 (1991); Hensley v. Brown, 5 Vet. App. 163 (1993). - 17 - Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. 38 C.F.R. 3.306(b) (2002). It is the government's burden to rebut the presumption of in-service aggravation. See Laposky v. Brown, 4 Vet. App. 331, 334 (1993); Akins v. Derwinski, 1 Vet. App. 228, 232 (1991). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. 3.306(b) (2002); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted with symptoms, has worsened. This means the base line against which the Board is to measure any worsening of a disability is the appellant's disability as shown in all of his medical records, not on the happenstance of whether he was symptom-free when he enlisted. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. 5107 (West Supp. 2002); 38 C.F.R. 3.102, 4.3 (2002). - 18 - Analysis A. Bronchitis At the enlistment examination in April 1988 the veteran denied any medical problems to that date and did not report a history of bronchitis. The medical examination did not show any findings or diagnosis of bronchitis. Although at a VA C&P examination in April 1996 she reported having had episodes of bronchitis since childhood, there is no clear and unmistakable evidence that bronchitis preexisted service. Therefore the veteran is presumed to be in sound condition at the time of enlistment as bronchitis was not noted when she was examined and accepted for service. 38 U.S.C.A. 1111, 1137 (West 1991). While there was treatment for bronchitis in service, bronchitis was not shown in service as a chronic condition. The report of a separation examination in November 1992 indicates that the veteran's lungs were normal and a chest X-ray was not indicated. No chronic residuals of bronchitis were shown. VA examinations post service have not shown chronic bronchitis. At the April 1996 VA examination her lungs were clear to auscultation and X-rays and pulmonary function tests were negative. June 1998 pulmonary function tests were also normal. Moreover, the veteran's assertions as to having bronchitis that was manifested during her period of active service cannot be deemed as competent medical evidence. As a layperson, she is not qualified to render medical opinions regarding matters, such as diagnoses and determinations of etiology, calling for specialized medical knowledge. See Cromley v. Brown, 7 Vet. App. 376, 379 (1995); Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). - 19 - As there is no record of such in-service incurrence or aggravation of bronchitis, and no nexus established between the current reported disability and service by a competent medical authority, service connection cannot be established. As noted in the previous paragraph, the veteran is not competent to provide such a medical opinion. Neither is the Board competent to supplement the record with its own unsubstantiated medical conclusions as to whether the veteran has chronic bronchitis that is related to her period of active service. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Although the veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim of entitlement to service connection for bronchitis. See Gilbert, 1 Vet. App. at 53. B. Otitis media The veteran was diagnosed with otitis media and rule out otitis media in service. The symptoms resolved with treatment and a chronic condition was not shown. The discharge examination is negative for any chronic residuals. At a VA examination 1996, based on the information provided by the veteran that she had had otitis media on two occasions in the past, the examiner diagnosed history suggestive of episodic otitis media. Upon examination in May 1998 her ears were essentially normal. The impression was recurrent episodes of otitis media and the examiner noted that the veteran had perennial allergic upper respiratory symptomatology as well as asthma. Based on the reporting of two diagnoses of otitis media in the past and although it is not clear whether these occurred in service or in the period since service, the Board concludes that this is insufficient to establish continuity of symptomatology after service. - 20 - Although the evidence of record shows that the veteran was treated for otitis media in service, there is no evidence that a chronic condition was shown. Chronic otitis media has not been shown post service nor is there medical evidence of a relationship between any episodes of otitis media shown post service. The veteran's own opinions and statements linking an alleged current condition, of otitis media to service are not competent evidence in this case. While a lay person is competent to provide evidence on the occurrence of observable symptoms during and following service, such a lay person is not competent to make a medical diagnosis or render a medical opinion, which relates a medical disorder to a specific cause. Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1992). Neither is the Board competent to supplement the record with its own unsubstantiated medical conclusions as to whether the veteran's alleged otitis media is related to a disease or injury incurred during service. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Although the veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim of entitlement to service connection for otitis media. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). C. Left ankle disorder The probative evidence of record does not show that the veteran suffered a left ankle injury in service and there was no evidence of a left ankle disorder on the discharge examination. The veteran contends that her left leg condition has caused her to overuse other joints to include her left ankle. At the November 1994 VA C&P examination no abnormality of the left ankle was shown but crepitus was noted. Chronic ligament strain was diagnosed. - 21 - A VA examiner in April and June 1996 addressed the question as to whether there was a link between the veteran's left ankle condition and the left tibia disorder. The examiner opined that some of the left ankle pain experienced was referred pain from the left tibia due to irritative symptoms from the intramedullary rod. As to the diagnosed synovitis and ligamentous strain the examiner felt that these were most likely not related to the left tibia fracture. The Board notes that the referred pain in the left ankle from the intramedullary rod in the left tibia is considered in the rating of the service-connected residuals of a fracture of the left tibia. Although a private doctor in October 1996 thought it was possible that a left ankle condition could be related to her September 1988 injury sustained in a motor vehicle accident, he felt that it was difficult to make such a connection. He felt that an orthopedist could better evaluate whether there was a connection. Accordingly, this statement does not support the veteran's claim. Although there is evidence of a current left ankle disability, the evidence of record does not show a left ankle injury in service. Moreover, there is no competent medical opinion or evidence that in any way related the post-service left ankle disability to an incident in service. Such nexus evidence is also required for a successful service connection claim. Maggitt v. West, 202 F.3d 1370, 1376 (Fed. Cir. 2000). The veteran has expressed her personal belief that her left ankle disability is related to service. However, such lay opinion, without the benefit of medical education or training, is not competent evidence required to support her claim. Espiritu, 2 Vet. App. at 494. Furthermore, in this case, there is a competent medical opinion that the left ankle disorder is not related to the service-connected left tibia. Thus, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for a left ankle disorder on direct service incurrence and secondary bases. - 22 - D. Low back disorder Although in service in August 1992 the veteran was treated for muscle strain of the low back after moving furniture, the records do not show that she returned for further treatment. The service medical records show no follow-up or evidence of a chronic low back disability. At the discharge examination in September 1992 she denied recurrent back pain and the clinical evaluation of her low back was normal. The first evidence of back problems subsequent to service was in 1994, approximately two years after service when she was assessed with chronic low back pain. An X-ray in November 1994 revealed a normal lumbar spine. A VA examiner in April 1996 could not establish a relationship between the low back pain and the veteran's knee and ankle problems and opined that it was as likely as not that this problem would have existed regardless of the knee and ankle problems. Again when the veteran sought an opinion from a private medical doctor in October 1996 as to whether her low back pain could be related to the September 1988 motor vehicle accident, the private doctor was unable to make such a connection. Service medical records show only one diagnosis of low back strain in service. The Board finds this insufficient to conclude that there was a chronic low back disorder in service. Savage v. Gober, 10 Vet. App. 488, 494-95 (1997). Although the evidence shows a current low back disability, the claim lacks competent medical evidence of a nexus between service and the present low back disability. See Hickson at 253. The veteran has expressed her personal belief that her low back disability is related to her service connected left leg disability. However, such lay opinion, without the benefit of medical education or training, is not competent evidence required to support her claim. Espiritu, 2 Vet. App. at 494. - 23 - Furthermore, in this case, there is a competent medical opinion that the low back pain is not related to the service-connected left leg. Thus, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for a low back disorder. E. Left thumb disorder The veteran contends that she injured her left thumb at the time of the motor vehicle accident in September 1988; however, the service medical records at the time of the accident or otherwise do not show any complaints or findings of a left thumb disorder. The discharge examination was negative for a left thumb disability. The November VA examination revealed slight subjective tenderness at the metacarpal phalangeal joint but no left thumb deformity. She had a normal grip and full range of motion. The diagnosis was status post hyperextension injury of the left thumb. May 1998 X- rays revealed normal hands. Although the evidence shows tenderness at the metacarpal phalangeal joint of the left thumb, a current disability is not shown. Because the veteran has failed to establish proof of a current diagnosis or disability of the left thumb, the Board finds that her claim of entitlement to service connection for a left thumb disorder must be denied. Service connection is not warranted because the probative evidence does not show that the veteran has a current disability of the left thumb. See Hickson, supra. The veteran's own opinion and statements that she has a current disability of the left thumb that is a residual of an injury at the time of her motor vehicle accident in September 1988 are not competent evidence in this case. - 24 - While a lay person is competent to provide evidence on the occurrence of observable symptoms during and following service, such a lay person is not competent to make a medical diagnosis or render a medical opinion, which relates a medical disorder to a specific cause. Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1992). Neither is the Board competent to supplement the record with its own unsubstantiated medical conclusions as to whether the veteran has a current disability involving the knees. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Although the veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for service connection for a left thumb disability. Gilbert, supra. F. Gallbladder removal The veteran claims that symptomatology such as reflux was shown in service prior to discharge and gall bladder surgery was performed three months later. She has sharp pains at the scar site. The evidence shows that at the November 1994 VA examination the veteran reported having her gall bladder removed post service in 1993. She denied and the examination did not reveal any residual symptoms. Service medical records are negative for any findings or diagnosis of gall bladder disease. At the discharge examination she denied any gall bladder trouble. Although the veteran asserts that reflux experienced in service was a symptom of gall bladder disease, her opinion cannot be deemed as competent medical evidence. - 25 - As a layperson, she is not qualified to render medical opinions regarding matters, such as diagnoses and determinations of etiology, calling for specialized medical knowledge. See Cromley v. Brown, 7 Vet. App. 376, 379 (1995); Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). As there is no record of such in-service incurrence or aggravation of gallbladder disease, and no nexus established between the current reported disability and service by a competent medical authority, service connection cannot be established. As noted previously, the veteran is not competent to provide such a medical opinion. Neither is the Board competent to supplement the record with its own unsubstantiated medical conclusions as to whether the veteran had gall bladder removal that is related to her period of active service. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Although the veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim of entitlement to service connection for gall bladder removal. See Gilbert, 1 Vet. App. at 53. II. Increased evaluations Factual background Service medical records show that in September 1988 the veteran had a left tibia fracture and underwent a closed reduction of the left tibia. There was application of a long leg cast. X-rays disclosed a transverse midshaft fracture of the left tibia with the fibula intact. She underwent open intramedullary rodding performed on her left tibia in May 1989. A September 1988 X-ray of the right ankle was negative. - 26 - The August 1989 Report of Medical History she reported being in good health except for the rod inside her left tibia. She also noted swollen or painful joints. A 6 cm surgical scar of the left shin with 1+ edema. There were two surgical scars below the left knee, 3 cm and 2 cm. The diagnosis was fracture of the left tibia status post rod stabilization. She was on limited duty until released by orthopedics. Otherwise the clinical evaluation was normal. It was noted that she was over the maximum weight. A September 1989 X-ray of the left knee revealed early signs of spur formation involving the margins medially. A metallic rod was seen within the proximal tibial shaft compatible with the results of an old fracture of the tibia. Elsewhere the bones and joint spaces appeared unremarkable. The impression was minimal degenerative change, intramedullary tibial rod, and no acute abnormality. In September 1989 the veteran was in a motor vehicle accident and hit her left knee on the dash. She sought private medical treatment for pain in her left knee. The clinical findings were that the left knee had edema, the patella was tender and there was an abrasion 3 cm across the knee. There was no ligament laxity and an X-ray was negative. There was full range of motion. A few days later the veteran sought treatment for a dressing change for a laceration on her left knee that occurred in a motor vehicle accident a few days earlier. The assessment was a laceration of the left knee with slight infection. An X-ray in November 1990 for a one year follow-up and rod removal revealed a 1 m rod in the tibia across a healed fracture of the distal shaft. The fibula was within normal limits. In January 1991, tenderness was noted over the scar on the left tibia and the plan was to remove the nail that had been inserted. - 27 - In January 1992 she complained of left knee pain when walking and climbing stairs. An examination revealed crepitus of the left knee and a diagnosis of chondromalacia patella. In April 1992 she complained of twisting her ankle 36 hours earlier when she stepped into a hole and inverted the right ankle. She had sprained the same ankle in April 1991. She denied hearing popping or tearing sounds. She was evaluated two days later and the assessment was status post ankle sprain with no sign of tendon rupture. In late April 1992 she had an inversion injury to her right ankle from slipping on a step. She heard a cracking sound. She was evaluated by a medical officer the following day and the assessment was right ankle sprain. An X-ray was within normal limits. She was seen five days later complaining of persistent right ankle pain to walk. The assessment was right ankle sprain. She was to have ice massage treatment at a rehabilitation treatment clinic (RTC). The assessment at RTC was status post right ankle sprain, minor. After approximately a week of treatment, there was full range of motion, no edema, no deformity, and no crepitus. The assessment was resolving right ankle sprain. In November 1992 she was seen in the orthopedic clinic for evaluation. Examination of the left tibia revealed a callous present in the distal third with minimal tenderness in this region over the surface of tibia, well healed. Negative heel tap pain. X- rays of the left tibia revealed a well healed fracture, with a rod present, not loose. The assessment was status post left tibia fracture with residual discomfort at fracture site with overuse. There was no need for further treatment but the veteran could have the rod removed if desired. VA outpatient treatment records for August and September 1994 show that the veteran was seen in August 1994 for complaints of crepitus in both knees and bone spurs. - 28 - Post service, at a VA C&P orthopedic examination in November 1994, examination of the knees revealed no evidence of effusion. There was no erythema. The range of motion was full at full extension and 130 degrees flexion. No lateral collateral, medial collateral or cruciate ligament weakness was noted. McMurray's test was negative. On range of motion, there was considerable crepitus in the patellar area. The pertinent diagnosis was patellofemoral syndrome. In April 1991 an X-ray of the right ankle and foot revealed an old avulsion from the dorsal proximal navicular. No acute fractures were seen. In January 1992 she was seen for complaints of bilateral knee pain. There was crepitus of the left knee and surgical scar. Slight ecchymosis of the right knee. The assessment was chondromalacia patellar. At a VA C&P orthopedic examination in November 1994 she reported shooting pains of the proximal tibia down the medial aspect of the leg. Examination of the lower extremities revealed muscle masses to be equal by measurement. Deep tendon reflexes were equal bilaterally at the ankles and the knees. Sensation was normal to pinprick. Motor testing revealed 5/5 quadriceps and dorsiflexion of the feet. The pertinent diagnosis was status post fracture of the mid-tibia left, status post open reduction internal fixation. There was no ankle or knee deformity. X-rays in November 1994 revealed an intramedullary rod noted in the tibia with the proximal end about 2 cm distal to the knee joint. X-rays in November 1994 revealed minimal hypertrophic changes of the left knee; otherwise, no significant abnormality was noted. At a VA C&P orthopedic examination in November 1994 the examination of the ankles revealed grossly normal architecture on inspection. There was no erythema, no tenderness or signs of synovitis. - 29 - On range of motion, there was considerable crepitus in both ankle joints. There was some tenderness in the right ankle joint in the anterior lateral joint area. Plantar flexion was 40 degrees and dorsiflexion was 10 degrees in both ankles. The pertinent diagnosis was chronic ligament strain. In March 1996, the veteran submitted a February 1994 VA outpatient treatment record with complaints of pain due to the rod in the left tibia, bilateral knee pain and crepitance. Clinical findings were crepitance of the left ankle with "FARM" and stable to examination. X-rays revealed mild bilateral knee degenerative joint disease (DJD) and DJD of the left ankle, talonavic, subtalonavic joints. The impression was bilateral RPPS with posttraumatic DJD of the left ankle, subtalonavic and talonavic joints. The veteran was provided a VA C&P orthopedic examination in April 1996. She complained of left ankle pain, chronic crepitus, stiffness and swelling. She had difficulty standing and described the pain as similar to shin splint pain that radiated toward the ankle. The pain in the ankle was exacerbated with standing as well as weightbearing. The pain in the ankle and in the tibial area were similar in nature. At the, April 1996 VA C&P examination she complaint of constant pain in the left knee with stiffness, popping and crepitus, which was worse with activities such as walking or standing. It was painful to ascend or descend stairs. Clinical findings at the April 1996 VA examination were that deep tendon reflexes were equal at the knees and the ankles. Sensation was intact. Motor testing revealed the quadriceps and anterior "tibs" groups to be 5/5. Examination of the ankles revealed mild synovial thickening over the lateral aspects of both ankles. There was mild crepitation on range of motion of the left ankle. Range of motion was from 5 degrees dorsiflexion and 40 degrees plantar flexion. Inversion/eversion strength was normal. There was mild tenderness to palpation along the lateral aspect of the left ankle joint. 30 - Examination of the left knee revealed no effusion. Patellofemoral tenderness was noted. There was no joint line tenderness of significance. Range of motion was from 0 to 140 degrees. There was no lateral collateral, medial collateral or cruciate ligament laxity identified. Examination of the quadriceps muscles revealed no evidence of atrophy. The April 1996 VA examination of the left lower extremity below the knee revealed well revealed surgical scars consistent with open reduction/internal fixation and placement of intramedullary rod, the fracture site being at the distal third, with its junction in the middle third, approximately, reveals a scar over that area, which was well healed. There was a small muscle hernia in the proximal portion of the scar. There was tenderness to palpation of the tibial surface along this region. No erythema was noted in the overlying areas. The pertinent diagnoses at the April 1996 VA examination were bilateral patellofemoral pain syndrome of the left knee and synovitis of the left ankle superimposed on history of chronic ligamentous strain. In a February 1995 rating decision the RO granted service connection for chronic ligament strain of the right ankle, status post fracture of the left tibia, and patellofemoral syndrome of the left knee. A zero percent disability evaluation was assigned for each of these effective from September 1994. The veteran disagreed with the evaluations assigned and initiated this appeal. In a rating decision in November 2000 the RO granted a 10 percent disability evaluation for each of these disorders effective from September 1994. An X-ray of the left knee in March 1998 showed an intramedullary rod in the tibia which was visualized to the level of the proximal diaphysis only. There were small spurs involving the medial joint compartment, the tibial spines and the patella. There was mild medial joint compartment narrowing. There was no effusion. The patellar alignment was within normal limits. - 31 - In comparison to the 1994 examination, the left knee appeared unchanged. The impression was osteoarthritis primarily involving medial and patellofemoral joint compartments and stable appearance of a left tibial intramedullary rod which vias partially visualized. The veteran was afforded a VA C&P orthopedic examination in May 1998. The examiner observed that the veteran was limping with the right ankle. She was able to rise on the toes and heels. She could stand on the medial and lateral borders of both feet. She could flex forward and reach to the feet. Her legs were equal in length. Back motion allowed flexion of 95 degrees, extension of 30 degrees, rotation 40 degrees bilaterally and lateral bending of 35 degrees bilaterally. There was some moderate pain with these movements. Reflexes were absent at the knees and ankles. Extensor muscles and sensation were normal at the lower legs and feet. Calf circumference was equal. Straight leg raising was easily tolerated to 80 degrees bilaterally. Knee motion was 0 to 140 bilaterally. There was no increase in joint fluid at either knee. Pain was moderate with these movements. Patellar pain and crepitation was rather severe at both knees. Joint lines were tender at both knees. The ligaments were normal. Knee pain was mostly at the patella when she had it. Both legs had a normal appearance. The left tibia still had some tenderness in the middle one-third on the left. There was a well- healed 2-inch surgical scar proximally at the left tibia at the tibial tuberosity area. There was a well-healed scar of 3/4 inch by 1 1/2 inch anteromedially over the tibia in the middle one-third and this had a slight tenderness. It related to the fracture injury. Calf circumference was equal. Motion of the foot and ankle was normal and equal with dorsiflexion to 15 degrees, plantar flexion to 45 degrees, inversion to 30 degrees and eversion to 20 degrees. There was some mild pain with these movements. Both ankles had a mild generalized tenderness but no swelling. The right heel was tender on the plantar aspect. The feet were otherwise nontender. - 32 - The pertinent diagnoses were chronic tendonitis of bilateral elbow, degenerative status per X-ray; status post carpal tunnel surgery bilateral wrist, continuing moderate wrist pain diagnosed as bothersome scarring; chronic synovitis of both hands predominantly in the MP joint of the thumb, degenerative status per X-ray; chronic muscular strain of the lumbar and thoracic area, lumbar nerve roots are okay, degenerative status per X-ray; chronic synovitis plus symptomatic patellar chondromalacia of bilateral knee, degenerative status per X-ray, and patellofemoral pain syndrome is a similar diagnosis. Other pertinent diagnoses were status post open reduction/internal fixation at left tibia fracture, well healed, fixation rod still in place; continued pain is diagnosed as bothersome scarring plus irritation from fixation metal; chronic synovitis of both ankle joints, degenerative status per X-ray; and plantar fasciitis of the right foot. The VA examiner commented that the orthopedic symptoms were probably significantly increased by chronic tension and/or depression. The claims file was reviewed. The subjective symptoms were noted and a 20 percent decrease in the motions of all joints would cover these. She also has flare-ups of symptoms and a 25 percent decrease in the motions of knees and ankles would cover these. A May 1998 X-ray of the left tibia and fibula revealed a medullary rod. A healed mid diaphyseal fracture was evident with considerable callous formation. The fragments appeared to be in anatomic alignment. The remainder of the visualized osseus structures and soft tissues were intact and there was no evidence of osteomyelitis. The impression was a healed left tibial fracture. An X-ray of the left knee in April 2000 was compared with the March 1998 film and no significant change was noted in mild degenerative joint disease. There was some narrowing of both medial compartments and some osteophyte formation. The intramedullary rod was unchanged in the left tibia. - 33 - A December 2000 X-ray of the right ankle was compared with November 1994 X-rays and there was mild spurring about the medial and lateral malleoli of the right ankle. There was no evidence of fracture, focal destruction of bone or dislocation. The joint spaces of the ankle appeared maintained. The impression was mild degenerative changes about the right ankle with spurring. X-rays of the right ankle in February 2001 were compared with November 1994 and December 2000 X-rays. There was mild spurring about the medial and lateral malleoli. There was no evidence of fracture, focal destruction of bone or dislocation. The joint spaces of the right ankle appear maintained. The impression was mild degenerative changes about the right ankle with spurring. VA outpatient treatment records show that the veteran was seen primarily for treatment of unrelated disorders. November 1994 X- rays of the knees show mild hypertrophic changes of both knees with an intramedullary rod in the tibia. November 1994 X-rays showed normal ankle. In May 1998 the veteran had complaints of bilateral knee pain, crepitus, and at time the knees give way. It is worse going downstairs with the left worse than the right. She has had no locking. At times, her knees feel warm and swollen. Examination revealed slight valgus of the knees. She had full range of motion of her knees, crepitus with ballottement, some patellar apprehension and poor muscle tone of the quads. There was no ligament laxity anteriorly, posteriorly, laterally or medially. The sensation was intact in the lower extremities. Her ankles had full range of motion. The pertinent assessment was chondromalacia of both knees. A problem list in April, July, September, October, and November 2000 and February 2001 included chronic knee and ankle pain diagnosed by orthopedics, bilateral patellofemoral pain syndrome and synovitis of both ankles with history of chronic ligamentous strain. She was seen in a Rheumatology Clinic in April 2000 with complaints of pain with weight bearing that occurred in the medial aspect of the left knee with walking. - 34 - Examination revealed tenderness of the medial aspect of the knee over the joint line. There was full flexion and extension and no effusion. The assessment was probable degenerative joint disease with chondromalacia syndrome. She was seen in a Rheumatology Clinic in August 2000 for follow-up for multiple disorders. She complained of having bilateral knee pain on weight bearing and going up and down stairs. The medication was not very effective. Examination of the knees revealed tenderness, the left greater than the right on the medial aspect. X-rays showed degenerative joint disease of the medial aspect of the knees, mild. When evaluated for complaints of left foot pain in December 2000, the clinical findings included that her calf was nontender, she had slight tenderness at the anterior tibia to palpation. Her left knee had full range of motion. She was seen for follow-up in a Rheumatology clinic in December 2000 and the problem list included bilateral knee pain. The X-rays were consistent with degenerative joint disease. She reported that the left knee Unloader brace had improved the left knee pain. She used it intermittently. She took Ibuprofen. In April 2001 she complained that her left knee was exceptionally sore. At physical therapy in April 2001 she reported that she was gradually getting tighter and more sore in several areas. The veteran was afforded a VA C&P examination of bones in March 2002. The examiner noted that recent X-rays documented that she has degenerative joint disease of her right ankle, degenerative joint disease of her left knee, degenerative joint disease of her thoracic spine and has an intramedullary rod in her left tibia. She had chronic complaints of pain in her ankles, knees, and spine. The veteran complained of right ankle pain, and giving out with stepping, particularly on uneven surfaces. She had pain with daily range of motion exercises performed for flexibility and to increase the strength of her ankle. - 35 - X-rays show that she had a spur both at the medial and lateral malleoli of the ankle. She noted that the lateral aspect hurt worse than the medial aspect and that her right ankle hurt more than the left. She complained of daily swelling. On a good day she estimated ankle pain as 3-4/10 and on a bad day it was 10+. A bad day occurred approximately one day a week. She used ice and warm water to alleviate some of the pain and recovery time was two to three days for each bad day. She used medication for all her joint pain and had significantly less pain since the onset of one of the medications. According to the veteran, when she had flare-ups of any of her joints or back, she lost 90 percent of range of motion secondary to the pain. She reported that her left knee was swollen on a daily basis. Most of the time the patella was numb, but occasionally she had a pain in that area more relative to the tibial open reduction and internal fixation scar. She had three to four flares per week of her left knee. The pain was a 10+ particularly after walking or prolonged standing. She always had pain at the medial joint line of the left knee. She described a fleeting flashing pain down her leg from her left tibia open reduction and internal fixation scar to the superior aspect of her left ankle. She wore Unloader braces on both her knees on a daily basis to provide some relief from her knee pain. She denied any significant limp but had pain in her feet, ankles, and knees with walking. The examination revealed a morbidly obese female in no acute distress who ambulated without limp or antalgic gait. There was no cane and no braces. Her right ankle had 30 degrees of supination and 20 degrees of pronation, 20 degrees of dorsiflexion and 40 degrees of plantar flexion. There was no subtalar motion or laxity noted with the talus. There was generalized ligamentous laxity throughout the ankle. - 36 - Examination of the left knee revealed +1 crepitus with range of motion maneuvers of the patella, negative apprehension sign, negative McMurray's sign, negative drawer, and negative Lachman's. There was some degree of laxity of the medial collateral ligament, and there was joint line tenderness with range of motion maneuvers of the left knee. There was some mild +1 edema of the inferior patellar region superior to a 6 cm medial inferior patella scar. The veteran had three scars on her left leg. Scar #1 was an 8 cm scar of the distal tibia, Scar #2 is a 6 cm scar to the medial inferior patella. Scar #3 is a 4 cm scar of the lateral inferior patella. The veteran reported that most of her tibial pain was along and below scar #1. The pertinent assessment was degenerative joint disease of the right ankle, degenerative joint disease of the left knee, status post open reduction and internal fixation with intramedullary rod, left tibia. The examiner opined that it was well documented that the veteran had significant DJD of her joints by previous X-rays. The veteran reported losing 90 percent of her range of motion in her joints during flare-ups that basically would limit her flexion totally of her right ankle and left knee. She did, however, experience improved pain control with medication. She was losing weight and was aware that obesity is a significant factor in her joint pain and joint prognosis. She did exhibit another 60 degrees of loss of motion in her left knee with a flare-up and 20 degrees of range of motion loss with a flare-up in her right ankle. She did exhibit excess fatigability and weakness which could be relative to her joints, her DJD, but part of that factor also was her obesity. In a June 2002 rating decision, the RO confirmed and continued the 10 percents disability evaluation for these disorders. Criteria for increased evaluation claims Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. - 37 - Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. 1155 (West 1991); 38 C.F.R. Part 4 (2002). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. 4.7 (2002). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 U.S.C. 5107 (West Supp. 2002); 38 C.F.R. 3.102, 4.3 (2002). In determining the level of impairment, the disability must be considered in the context of the whole recorded history. 38 C.F.R. 4.2, 4.41 (2002). An evaluation of the level of disability present also includes consideration of the functional impairment of the appellant's ability to engage in ordinary activities, including employment. 38 C.F.R. 4.10 (2002). In determining the disability evaluation, 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 (1991). An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment, and the effect of pain, supported by adequate pathology and evidenced by pain on movement, on the functional abilities. 38 C.F.R. 4.10, 4.40, 4.45 (2002); see VAOPGCPREC 36-97. As fact finder, the Board is required to weigh and analyze all the evidence of record and to make determinations as to the credibility of the evidence. Sanden v. Derwinski, 2 Vet. App. 97, 100 (1992). - 38 - When all of the evidence is assembled, VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The CAVC, in DeLuca v. Brown, 8 Vet. App. 202 (1995), held that where evaluation is based on limitation of motion, the question of whether pain and functional loss are additionally disabling must be considered. See 38 C.F.R. 4.40, 4.45, and 4.59. Consideration of functional loss due to pain is not required when the current rating is the maximum disability rating available for limitation of motion. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. 4.40 (2002). The factors affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. 4.45 (2002). In the selection of code numbers assigned to disabilities, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. 38 C.F.R. 4.27 (2002). The regulations provide that for the purpose of rating disability from arthritis, the shoulder, elbow, wrist, hip, knee, and ankle are considered major joints. 38 C.F.R. 4.45(f) (2002). 39 - With any form of arthritis, painful motion is an important factor of disability. The intent of the rating 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. The joints should be tested for pair, on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. 4.59 (2002). Arthritis due to trauma, substantiated by X-ray findings, is rated as degenerative arthritis. 38 C.F.R. 4.71a, Diagnostic Code 5010 (2002). Degenerative arthritis established by X-ray findings may be rated on the basis of limitation of motion under the appropriate diagnostic codes involved under 38 C.F.R. 4.71a. 38 C.F.R. 4.71a, Diagnostic Code 5003 (2002). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 20 percent evaluation is warranted with X-ray evidence of involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. A 10 percent evaluation is warranted with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. The 20 percent and 10 percent ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. Id. Synovitis will be rated on limitation of motion of the affected part, as arthritis, degenerative. 38 C.F.R. 4.71a, Diagnostic Code 5020 (2001). - 40 - Normal ankle joint motion is from 0 to 20 degrees of dorsiflexion and 0 to 45 degrees of plantar flexion. 38 C.F.R. 4.71, Plate 11 (2001). Limited motion of the ankle warrants a 20 percent rating when marked, and a 10 percent rating when moderate. 38 C.F.R. 4.71a, Diagnostic Code 5271 (2002). In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. 4.31 (2002). Diagnostic Code 5270 provides that ankylosis in plantar flexion, less than 30 degrees, warrants a 20 percent rating. When the ankle is ankylosed in plantar flexion, between 3 0 degrees and 40 degrees, or in dorsiflexion between 0 and 10 degrees, a 30 percent rating is warranted. 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 warrants a 40 percent rating. 38 C.F.R. 4.71a, Diagnostic Code 5270 (2002). Normal knee joint motion is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. 4.71, Plate II (2002). Ankylosis of the knee in a favorable angle in full extension, or in slight flexion between 0 degrees and ten degrees warrants a 30 percent evaluation. A 40 percent evaluation requires that the knee be fixed in flexion at an angle between 10 degrees and 20 degrees. A 50 percent evaluation requires that the knee be fixed in flexion at an angle between 20 degrees and 45 degrees. A 60 percent evaluation require 3 extremely unfavorable ankylosis. Ankylosis is considered to be extremely unfavorable when the knee is fixed in flexion at an angle of 45 degrees or more. 38 C.F.R. 4.71a, Diagnostic Code 5256 (2002). - 41 - Slight impairment of the knee with recurrent subluxation or lateral instability warrants a 10 percent evaluation. Moderate impairment of the knee with recurrent subluxation or lateral instability warrants a 20 percent evaluation. A 30 percent evaluation requires severe impairment. 38 C.F.R. 4.71a, Diagnostic Code 5257 (2002). Limitation of flexion of the leg to 60 degrees warrants a zero percent evaluation. A 10 percent evaluation requires that flexion be limited to 45 degrees. A 20 percent evaluation requires that flexion be limited to 30 degrees. A 30 percent evaluation requires that flexion be limited to 15 degrees. 38 C.F.R. 4.71a, Diagnostic Code 5260 (2002). Limitation of extension of the leg to 5 degrees warrants a zero percent evaluation. A 10 percent evaluation requires that extension be limited to 10 degrees. A 20 percent evaluation requires that extension be limited to 15 degrees. A 30 percent evaluation is warranted when extension is limited to 20 degrees. A 40 percent evaluation requires that extension be limited to 30 degrees. A 50 percent evaluation requires that extension be limited to 45 degrees or more. 38 C.F.R. 4.71a, Diagnostic Code 5261 (2002). Under Diagnostic Code 5262, nonunion of the tibia and fibula, with loose motion, requiring a brace, warrants a 40 percent evaluation. Where there is malunion of the tibia and fibula, with marked knee or ankle disability, a 30 percent rating evaluation is provided. Malunion of the tibia and fibula warrants a 20 percent evaluation if there is moderate knee or ankle disability and a 10 percent rating if such disability is slight. 38 C.F.R. 4.71a, Diagnostic Code 5262 (2002). Shortening of the bones of the lower extremity is rated 10 percent disabling when 1 1/4 to 2 inches (3.2 centimeters to 5.1 centimeters) shorter than the other leg. 38 C.F.R. 4.71a, Diagnostic Code 5275. However, a note to this diagnostic code provides that ratings based on shortening of the leg are not to be combined with other ratings for fracture or faulty union in the same extremity. Thus, a separate 10 percent evaluation for this abnormality is not authorized. - 42 - The provisions of 38 C.F.R. 4.14 preclude the assignment of separate ratings for the same manifestations under different diagnoses. The critical element is that none of the symptomatology for any of the conditions is duplicative of or overlapping with symptomatology of the other conditions. Esteban v. Brown, 6 Vet. App. 259 (1995). During the pending appeal, the regulations for evaluating scars were changed. The old regulations provided that for scars that are superficial, poorly nourished, with repeated ulceration a 10 percent evaluation is provided under 38 C.F.R. Part 4, Diagnostic Code 7803. For scars that are superficial, tender and painful on objective demonstration, a 10 percent evaluation is provided under 38 C.F.R. Part 4, Diagnostic Code 7804. For other scars the basis of evaluation is rated on limitation of function of affected part in accordance with 38 C.F.R. Part 4, Diagnostic Code 7805. Under the new regulations, a 40 percent disability rating is assigned for scars, other than on the head, face, or neck, that are deep or that cause limited motion and have area or areas exceeding 144 square inches (929 square centimeters). A 30 percent disability rating is assigned for scars, other than on the head, face, or neck, that are deep or that cause limited motion and have area or areas exceeding 72 square inches (465 square centimeters). A 20 percent disability rating is assigned for scars, other than on the head, face, or neck, that are deep or that cause limited motion and have area or areas exceeding 12 square inches (77 square centimeters). A 10 percent disability rating is assigned for scars, other than on the head, face, or neck, that are deep or that cause limited motion and have area or areas exceeding 6 square inches (39 square centimeters). 67 Fed. Reg. at 49,596 (to be codified at 38 C.F.R. 4.118, Diagnostic Code 7801). 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. Id. A deep scar is one associated with underlying soft tissue damage. Id. - 43 - A 10 percent disability rating is assigned for scars, other than on the head, face, or neck, that are superficial and that do not cause limited motion and have area or areas of 144 square inches (929 square centimeters) or greater. 67 Fed. Reg. at 49,596 (to be codified at 38 C.F.R. 4.118, Diagnostic Code 7802). 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. Id. A superficial scar is one not associated with underlying soft tissue damage. Id. A 10 percent disability rating is assigned for superficial, unstable scars. 67 Fed. Reg. at 49,596 (to be codified at 38 C.F.R. 4.118, Diagnostic Code 7803). An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. A superficial scar is one not associated with underlying soft tissue damage. Id. A 10 percent disability rating is assigned for superficial scars that are painful on examination. 67 Fed. Reg. at 49,596 (to be codified at 38 C.F.R. 4.118, Diagnostic Code 7804). A superficial scar is one not associated with underlying soft tissue damage. Id. 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. Id.; see 38 C.F.R. 4.68 (2002) (the amputation rule:). Under Diagnostic Code 7805, other scars are rated on limitation of function of affected part. 67 Fed. Reg. at 49,596 (to be codified at 38 C.F.R. 4.118, Diagnostic Code 7805). Ratings shall be based as far as practicable, upon the average impairment of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. - 44 - To accord justice, therefore, 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 extra- schedular 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. 38 C.F.R. 3.321(b)(1) (2002). When, after consideration of all the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the veteran. 38 C.F.R. 3.102, 4.3 (2002). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. 5107 (West Supp. 2002). Analysis Initial increased evaluations The Board notes that the veteran disagreed with the initial evaluations assigned. When a veteran is awarded service connection for a disability and subsequently appeals the initial assignment of a rating for that disability, separate ratings might be warranted for separate periods of time, a practice known as "staged" rating. See Fenderson v. West, 12 Vet. App. 119 (1999). - 45 - Although the decision herein includes consideration of Fenderson, supra, the veteran has not been prejudiced thereby. She has been advised of the laws and regulations pertinent to disability evaluations. Again, she has been afforded examinations and opportunity to present argument and evidence in support of her claim. See Bernard v. Brown, 4 Vet. App. 384, 392-394 (1993). I. Right ankle arthritis, synovitis, residuals of strain The veteran essentially claimed that her right ankle disability was more severe than the zero percent disability evaluation initially assigned. During the pending appeal, the RO agreed and assigned an initial 10 percent evaluation. The 10 percent disability evaluation has been assigned for the veteran's right ankle disorder under Diagnostic Codes 5010-5271. The criteria provide that synovitis and traumatic arthritis are rated as degenerative arthritis which is rated on the basis of limitation of motion under the appropriate diagnostic code which in this case is 5271. A ten percent evaluation is for moderate limitation of motion and for a 20 percent evaluation marked limitation of motion needs to be shown. At the November 1994 VA C&P examination plantar flexion was 40 degrees and dorsiflexion was 10 degrees. In April 1996 range of motion was from 5 degrees dorsiflexion to 40 degrees plantar flexion. In May 1998 range of motion was dorsiflexion to 15 degrees and plantar flexion to 45 degrees. There was some mild pain with these movements. The ankle had a mild generalized tenderness but no swelling. The examiner thought that a 20 percent decrease in the joint motion would cover the subjective symptoms and during a flare-up of symptoms a 25 percent decrease in the ankle joint motion would cover this. With a 25 percent decrease, the range of motion findings would be approximately from 11 degrees of dorsiflexion to 34 degrees of plantar flexion. These findings with the additional decrease of range of motion still would be considered no more than moderate disability. - 46 - At the March 2002 VA examination her right ankle had range of motion findings of 20 degrees of dorsiflexion and 40 degrees of plantar flexion. The examiner opined that she exhibited another 20 degrees range of motion loss with a flare-up in her right ankle. This would decrease the range of motion to dorsiflexion to 10 degrees and plantar flexion to 20 degrees. These findings are indicative of not more than moderate limitation of motion as set forth in 38 C.F.R. 4.71 , Plate II, and warrant no greater than the assignment of a 10 percent disability rating for a moderate disability. At the March 2002 VA examination she complained of daily right ankle pain and swelling, and giving out of her ankle. There was significantly less pain with medication. Although her problem list at the VA clinic included synovitis of the ankle with history of chronic ligamentous strain, the outpatient treatment records do not show specific complaints or findings regarding her right ankle disorder. In addition, the examiner in March 2002 observed that she ambulated without limp or antalgic gait and was not using a cane or braces. The Board notes that the examiner mentioned that she exhibited excess fatigability and weakness, thought in part due to her DJD of her joints and also to her obesity. His comment was not specifically focused on DJD of her right ankle joint and the Board notes that she has DJD of several other joints. The most recent radiographic studies of her right ankle of record, December 2000 and February 2001, show mild degenerative changes with spurring. The medical evidence of record does not demonstrate any additional significant functional loss to warrant an increased evaluation based on 38 C.F.R. 4.40 and 4.45. The medical evidence of record shows minimal loss of range of motion as a result of the disability, and demonstrates additional loss of range of motion because of flare-ups, impaired endurance, and weakness, based on observations made by a competent medical examiner. Based on the foregoing evidence, the Board finds that the record establishes that the veteran's right ankle disability with consideration of additional functional impairment due to pain on use is adequately compensated by the current initial 10 percent rating. See 38 C.F.R. 4.40 and 4.45. - 47 - The veteran's primary complaint regarding her right ankle disorder is pain. Although the Board is required to consider the effect of the veteran's pain when making a rating determination, and has done so in this case, the rating schedule does not require a separate rating for pain. Spurgeon v. Brown, 10 Vet. App. 194 (1997). The Board notes that pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. 4.14 (2002). It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes. There is no medical evidence of record that demonstrates symptomatology associated with ankylosis of the ankle (Diagnostic Codes 5270, 5272), malunion of the os calcis or astragalus (Diagnostic Code 5273) or astragalectomy (Diagnostic Code 5274), therefore an evaluation of the veteran's left ankle disability under these codes is not for application. Although the veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim of entitlement to an initial evaluation in excess of 10 percent for right ankle arthritis, synovitis, residuals of strain. See Gilbert, supra. Given these facts, there is no basis for a higher rating under any code and, as noted above, any functional loss experienced by the veteran is encompassed by the current 10 percent rating assigned under Diagnostic Codes 5010-5020. See 38 C.F.R. 4.40, 4.45, 4.59 (1999); DeLuca v. Brown, 8 Vet. App. 202 (1995). In deciding this matter, the Board has considered all the evidence consistent with the CAVC's decision in Fenderson. The evidence does not show disability warranting more than a 10 percent rating during any period under consideration, even in light of 38 C.F.R. 4.7. - 48 - II. Residuals of fracture of the left tibia In reaching its decision, the Board has considered the complete history of the disability in question as well as the current clinical manifestations and the effect the disability may have on the earning capacity of the veteran. 38 C. F. R. 4.1. 4.2, 4.41 (2002). The history of left leg complaints has been reviewed and the functional impairment which can be attributed to pain or weakness has been taken into account. This appeal commenced when the initial evaluation assigned was zero percents. To the extent that the veteran claimed that her disability was more severe, the RO agreed and has granted an initial 10 percent disability evaluation under Diagnostic Codes 5299-5262 effective from September 1994. Diagnostic Code 5299 is used to identify musculoskeletal system disabilities that are not specifically listed in the Schedule, but are rated by analogy to similar disabilities under the Schedule. There is no diagnostic code for residuals of a fracture of the tibia, so this disability has been rated analogously using the criteria of Diagnostic Code 5262 for impairment of tibia and fibula due to nonunion or malunion. Clearly, the veteran is competent to allege that she is worse, and that she has functional impairment. However, the Board concludes that the evidence established by competent professionals is more probative than the veteran's statements. In service the veteran sustained a fracture of her left tibia and an intramedullary rod was inserted. In November 1992, shortly before discharge from service, the finding was that the fracture was well healed. The assessment was status post left tibia fracture with residual discomfort at fracture site with overuse. - 49 - At the November 1994 VA examination, the veteran had complaints of pain of the proximal tibia. No abnormal clinical findings were noted and there was no ankle or knee deformity. At the April 1996 VA examination, the clinical findings were of well-healed surgical scars with a small muscle hernia in the proximal portion of the scar over the fracture area with tenderness to palpation of the tibial surface along this region. In May 1998 extensor muscles and sensation was normal and calf circumference was equal. VA examinations have revealed tenderness of the left tibia over the fracture site. The surgical scars have been consistently described as well-healed. In May 1998 continued pain was diagnosed as bothersome scarring plus irritation from fixation metal. In March 2002 the veteran described a fleeting flashing pain down her leg from her left tibia open reduction and internal fixation scar to the superior aspect of her left ankle. The veteran has three scars on her left leg, 8cm, 6cm and 4cm. She reported that most of her tibial pain was along and below the 8 cm scar on the distal tibia. As noted previously, the veteran's residuals of a fracture of the left tibia are evaluated by analogy to the diagnostic code for impairment of the tibia and fibula. The evidence of record does not show nonunion or malunion of the tibia and fibula. A May 1998 X-ray revealed a healed mid diaphyseal fracture with considerable callous formation and the fragments appeared to be in anatomic alignment. Although the evidence shows that removal of the rod was considered several times, a March 2002 X-ray revealed that the intramedullary rod was in place. Although the evidence shows left knee and left ankle disabilities, the Board notes that the veteran is in receipt of separate 10 percent evaluations for synovitis and chondromalacia of the left knee and for left knee ligament laxity. The veteran is not service- connected for a left ankle disability. There is a 1996 medical opinion that synovitis and ligamentous strain of the left ankle is most likely not related to the left tibial fracture. - 50 - The pain she experienced in the left ankle was thought to be pain referred from the left tibial fracture area caused by the intramedullary rod. These symptoms seem appropriately compensated by the current 10 percent evaluation assigned. The veteran's primary complaint regarding her left tibia disorder is pain. As previously noted, the rating schedule does not require a separate rating for pain. Spurgeon v. Brown, 10 Vet. App. 194 (1997). Consideration has also been given to the potential application of the various provisions of 38 C.F.R. Part 4 (2002), to include other potentially applicable diagnostic codes whether or not they were raised by the veteran, as required ty Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. au Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. 4.14. The medical evidence of record does not show acquired unequal leg length such as to warrant a separate rating under Diagnostic Code 5275. Based on the foregoing medical evidence, however, the Board concludes that a separate compensable rating is warranted for scarring of the left tibia. The medical evidence of record shows that the surgical scars on the left tibia are tender and bothersome. Although it is not clear whether the tenderness is related to the scar or the underlying fracture site or the intramedullary rod, the scars have also been described as bothersome. - 51 - The evidence is at least evenly balanced as to whether the residual scars are tender and painful on objective demonstration. Consequently, the benefit of the doubt is for application on this issue and the veteran is entitled to a separate 10 percent rating the residual scars. 38 C.F.R. 3.102, 4.118, Diagnostic Code 7804 (2001)(2002). In reaching this determination, the Board has considered the fact that the law with respect to evaluating scars has changed during the course of the appeal. As a result, the Board has considered the applicability of Bernfard v. Brown, 4 Vet. App. 384, 393-394 (1993). The Board finds that she is not prejudiced by its consideration in the first instance of her claim pursuant to this new law because of the fact that the claim has been granted in this regard with respect to the scars of the skin part of the disability. The Board concludes that the criteria for an evaluation in excess of 10 percents for residuals of a fracture of the left tibia have not been met, but the criteria for a separate 10 percent rating for scarring have been met. III. Extraschedular Consideration The CAVC has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. 3.321(b)(1) in the first instance. Floyd v. Brown, 9 Vet. App. 88 (1996). The Board, however, is still obligated to seek all issues that are reasonably raised from a liberal reading of documents or testimony of record and to identify all potential theories of entitlement to a benefit under the law or regulations. - 52 - In Bagwell v. Brown, 9 Vet. App. 337 (1996), the CAVC clarified that it did not read the regulation as precluding the Board from affirming an RO conclusion that a claim does not meet the criteria for submission pursuant to 38 C.F.R. 3.321(b)(1), or from reaching such conclusion on its own. VAOPGCPREC 6-96. The CAVC has further held that the Board must address referral under 38 C.F.R. 3.321(b)(1) only where circumstances are presented which the Director of the VA Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Board does not find the veteran's disability picture to be unusual or exceptional in nature as to warrant referral of her case to the Under Secretary or the Director for review for consideration of extraschedular evaluation under the provisions of 38 C.F.R. 3.321(b)(1). The current schedular criteria adequately compensate the veteran for the nature and extent of severity of the right ankle disorder and residuals of fracture of left tibia. The record in this case does not demonstrate that the veteran has required frequent periods of hospitalization for this disability or that these disabilities markedly interfere with employment. Having reviewed the record with these mandates in mind, the Board finds no basis for further action on this question. ORDER Entitlement to service connection for bronchitis, otitis media, a left ankle disorder, a low back disorder, a left thumb disorder and removal of gallbladder is denied. Entitlement to an initial disability evaluation greater than 10 percent for right ankle arthritis, synovitis, residuals of strain is denied. - 53 - Entitlement to an initial evaluation in excess of 10 percent for residuals of a left tibia fracture is denied; however, entitlement to a separate compensable evaluation of 10 percent for scarring of the left tibia is granted, subject to the governing criteria applicable to the payment of monetary benefits. RONALD R. BOSCH 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. - 54 -