Citation Nr: 0527174
Decision Date: 10/06/05	Archive Date: 01/12/06

DOCKET NO. 02-21 255                        DATE OCT 06 2005

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas

THE ISSUES

1. Entitlement to increased disability evaluation for patellofemoral pain syndrome, right and left knee, each currently rated as 10 percent disabling.

2. Entitlement to an increased disability evaluation for calcaneal spur, right heel, currently rated as 10 percent disabling.

3. Entitlement to increased (compensable) disability evaluations for bilateral ankle strains.

4. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for dextroconvex scoliosis, mid lumbar spine with spina bifida, S1.

5. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for headaches.


REPRESENTATION

Appellant represented by: Texas Veterans Commission

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Nancy Rippel, Counsel

INTRODUCTION

The veteran served on active duty from July 1979 to September 2000.

This case comes before the Board of Veterans' Appeals (the Board) on appeal from rating decisions of the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO). The RO denied a claim for an increased rating for bilateral knee disorder in February 2002. The veteran perfected an appeal with that decision in February 2003. In April 2003, the RO denied increased ratings for the veteran's bilateral ankle disability and right calcaneal spur, and declined to reopen claims of service connection for scoliosis and headaches. The veteran perfected his appeal of these issues in April 2004.

The veteran also appealed the issues of entitlement to increased evaluations for neck strain and right and left hand strains, stating in his April 2004 substantive appeal that his appeal would be satisfied if he received ratings of 10 percent for each hand and 20 percent for his neck. In a November 2004 rating decision, the RO granted these ratings, and thus the appeal as to those issues has been satisfied, and is not before the Board. Those awards represented complete grants of benefits as

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reflected in the veteran's substantive appeal. See AB v. Brown, 6 Vet. App. 35 (1993). A claimant may limit an appeal to a specific evaluation, and where he does so, the Board is without authority to adjudicate the claim. Hamilton v. Brown, 4 Vet. App. 528,544 (1993).

The veteran has also indicated that he believes left calcaneal spurs are related to service. The issue of service connection for a left calcaneal spur is referred to the RO for appropriate action.

FINDINGS OF FACT

1. The veteran's service-connected patellofemoral pain syndrome, right knee, is currently manifested by no instability and mild arthritis on X-ray; range of motion of the knee is 0 to 130 degrees, with pain at 30 degrees.

2. The veteran's service-connected patellofemoral pain syndrome, left knee, is currently manifested by no instability and mild arthritis on X-ray; range of motion of the knee is 0 to 140 degrees, with pain at 30 degrees.

3. The veteran's service-connected bilateral ankle strain is currently manifested by less than moderate limitation of motion, pain with prolonged weight-bearing activity and no arthritis on X-ray; range of motion of both ankles is dorsiflexion 0 to 30 degrees and plantar flexion 0 to 20 degrees.

4. The veteran's service-connected right calcaneal spur is currently manifested by less than moderate foot injury, with no arthritis on X-ray and pain with prolonged weight-bearing activity. There is no objective clinical evidence of limitation of the part affected, or a moderately severe foot injury.

5. In October 2000, the RO denied a claims of entitlement to service connection for dextroconvex scoliosis, mid lumbar spine with spina bifida, S1, and headaches. The veteran was informed of the decision by letter dated November 21, 2000. He did not perfect an appeal.

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6. Evidence submitted since October 2000 is cumulative of evidence already of record, and by itself or when considered with previous evidence of record, does not relate to an unestablished fact necessary to substantiate the claims.

CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 10 percent for patellofemoral pain syndrome, right knee, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.71a, 4.40, 4.45, 4.59, Diagnostic Code 5260 (2004).

2. The criteria for a rating in excess of 10 percent for patellofemoral pain syndrome, left knee, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.71a, 4.40, 4.45, 4.59, Diagnostic Code 5260 (2004).

3. The criteria for a compensable rating for bilateral ankle strain have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.71a, 4.40, 4.45, 4.59, Diagnostic Code 5271 (2004).

4. The criteria for a rating in excess of 10 percent for right heel calcaneal spur have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.71a, 4.40, 4.45, 4.59, Diagnostic Code 5284 (2004).

5. The October 2000 rating decision denying the veteran's claims for service connection for dextroconvex scoliosis, mid lumbar spine with spina bifida, S1, and headaches, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.302 (2004).

6. New and material evidence has not been received, and the claims for service connection for dextroconvex scoliosis, mid lumbar spine with spina bifida, S1, and headaches may not be reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2004).

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REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

1. Duty to Notify and Assist

VA has a duty to notify claimants for VA benefits of information necessary to submit to complete and support a claim and to assist claimants in the development of evidence. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2004). In this case, VA's duties have been fulfilled to the extent possible.

VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim, (2) that VA will seek to provide, and (3) that the claimant is expected to provide. In what can be considered a fourth element of the requisite notice, VA must "also request that the claimant provide any evidence in the claimant's possession that pertains to the claim." 38 C.F.R. § 3.159(b)(1); see 38 U.S.C.A. § 5103A(g).

VA has satisfied its duty to notify as reflected in letters from the RO to the veteran issued in February 2003 and June 2005. The letters reflect that the veteran was notified by the RO of the information and medical or lay evidence necessary to substantiate his claims consistent with the VCAA and of his and VA's respective responsibilities in terms of obtaining information and evidence. He was also asked to submit evidence in support of his claims, which would include that in his possession. Such a letter, required following the passage of the VCAA, was mailed to the veteran prior to the April 2003 rating decision denying all of the claims other than the knee ratings. Thus, although the February 2003 letter was compliant with timing requirements as to the other issues on appeal, no letter was mailed to the appellant prior to the initial RO adjudication of his increased rating claims for his knees. Any defect in this regard is harmless error. See 38 U.S.C.A. § 7261(b)(2) (West 2002). The appellant did not provide any additional evidence in response to the letter that was not fully considered by RO in the subsequent adjudications contained in the supplemental statements of the case (SSOC) issued thereafter. There is simply no indication that disposition of his claim would have been different had he received pre-adjudicatory notice pursuant to 38 U.S.C.§ 5103(a)

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and 38 C.F.R. § 3.159(b). He has been provided a meaningful opportunity to participate effectively in the processing of her claims. See Mayfield v. Nicholson, 19 Vet App 103 (2005).

VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d) (2004). All identified, pertinent evidence, including VA medical records and records from Kirk Army Health Clinic, Darnall Army Community Hospital, and various private sources, has been obtained and associated with the claims file. There is no indication of any relevant records that the RO has failed to obtain. The veteran offered testimony at a hearing before RO personnel in December 2003.

After a review of the record in this case, the Board finds no indication of any additional pertinent, outstanding private medical evidence specifically identified by the veteran, nor is there any indication that additional outstanding Federal department or agency records exist that should be requested in connection with the claim adjudicated in this decision. 38 U.S.C.A. § 5103A(b), (c)(3) (West 2002); 38 C.F.R. § 3.159(c)(1), (2) (2004).

Assistance shall also include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2004). Examinations were conducted in October 2001, March 2003, and August 2004. As to the new and material evidence claims, there is no duty to obtain a VA examination or opinion because new and material evidence has not been presented or secured. See 38 C.F.R. § 3.159(c)(4)(iii). Having determined that the duty to notify and assist has been satisfied to the extent possible, the Board turns to an evaluation of the veteran's claims.

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II Increased Ratings for Knees, Ankles and Right Heel Spur

Factual Background

VA examination at the time of service separation (July 2000) conducted at Fort Hood disclosed bilateral patellofemoral pain syndrome and bilateral ankle strain. X-rays of the knees and ankles were negative, and a right heel spur was noted. A 10 percent rating was assigned for patellofemoral pain syndrome of each knee in October 2000. A noncompensable rating was assigned for bilateral ankle strain and right heel calcaneal spur. The veteran's claim: for increased ratings of the knees was received in March 2001. His claim for increased ratings for the ankles and right heel spur was received in December 2002. The current 10 percent rating for right calcaneal heel spur was assigned in a January 2004 rating decision, effective from December 2002.

VA and private treatment records show complaints of knee, ankle and right heel pain since the veteran filed his claims. He complains of increased pain with prolonged weight bearing, squatting, walking barefoot, heavy lifting, and walking in excess of one mile.

The veteran was afforded VA orthopedic examinations for his knees, ankles and heel spur in October 2001, March 2003, and August 2004. During examination in October 2001, the veteran described pain while running, standing, and walking. He reported missing about 10 days of work over the past year due to knee problems. The veteran wore no knee brace. On physical examination, he demonstrated tenderness when the interior patellar tendons were palpated. There was no objective evidence of pain on motion, no edema, effusion, instability or weakness, redness or heat, abnormal movement or guarding. Weight bearing, posture and gait were normal. Both knees had normal range of motion of 0 to 140 degrees without pain. X-rays of the knees showed mild degenerative joint disease of both knees.

VA feet examination conducted in March 2003 revealed tenderness at the anterior os calcis bone of the right heel with painful walking on heels. Gait and shoe wear

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pattern were normal. There was no unusual breakdown. X-rays of the right foot showed small calcaneal plantar spurs, otherwise negative right and left feet.

VA joints examination conducted in March 2003 revealed complaints of aching and stiffness in both ankles on a daily basis. He reported he was taking Tylenol two to four times per week as needed for pain. There were no periods of flare-ups reported. No braces or assistive devices were used. There was no dislocation or subluxation. The veteran could perform activities of daily living and had lost no work time' due to his ankle pain. There was no painful motion and there was no additional limitation with repeated use due to weakness, fatigue, incoordination or lack of endurance. No ankylosis was present. Range of motion of 0 to 20/20 degrees dorsiflexion and 0 to 40/45 degrees plantar flexion for both ankles. X-rays of the ankles were within normal limits. The diagnosis was bilateral ankle sprain, normal exam.

Private treatment records from Mickey Banigan, P.A., Paul Oliver, M.D., Robert Peters Jr., D.O., and Ronald G. Hoskins, D.P.M., dated from September 2001 to December 2003 show complaints and treatment for a variety of medical problems including sore heels and joint pain. The veteran reported knee pain in September 2001, for which he was taking Motrin. Limited dorsiflexion was noted at times, but full active range of motion of the foot was also noted in June 2003.

Treatment records from Scott and White Memorial Hospital show an impression of diffuse arthralgias and early osteoarthritis in February 2004. The knees had full range of motion and were without warmth, erythema or swelling. No effusions could be appreciated. The ankles were benign. There were degenerative changes in the first metatarsophalangeal joint bilaterally.

A VA outpatient clinic note dated in June 2004 was characterized as an evaluation for degenerative joint disease. The veteran was reportedly busy working as a computer service engineer and was about to go on a vacation. X-rays and laboratory tests were reviewed. The relevant assessment was degenerative joint disease controlled with Ibuprofen and Tramadol, bilateral knee pain, chronic, and bilateral foot pains, due to heel spurs, relieved with inserts.

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A VA orthopedic examination report dated in August 2004 reflects a review of the record and claims folder. The veteran reported taking 800 mg Motril1two to three times daily but that this had little effect on his joint pain. Complaints related to the feet included pain with weight bearing and walking, especially in bare feet. He could walk about one mile before needing to stop and rest due to pain. He wore shoe inserts. Physical examination of the feet was within normal limits. The veteran noted pain with palpation around the heels. There was normal gait and no breakdown or unusual wear. There was no foot deformity. The diagnosis was small bilateral calcaneal spurs. Range of motion of the ankles was 0 to 20 degrees dorsiflexion bilaterally, plantar flexion 0 to 30 degrees bilaterally, all without pain.

Regarding the knees, the veteran noted morning stiffness for which he used analgesic cream. He also used Motrin, baths and sports wraps. Pain increased with bending. He reported occasional swelling, locking and feelings of instability but no falling or giving out. No assistive devices were needed. There were no episodes of dislocation or recurrent subluxation. The pain did limit squatting, bending, lifting and prolonged standing associated with the veteran's computer installation engineer job. He reported he missed about a week of work last year due to knee pain. He also reports difficulty getting out of the tub and now showered instead. He reported he cannot run due to the ankles and knees. Repetition of motion did not cause limitations, but the veteran noted increase in pain with repetition. No objective evidence of painful motion, such as heat, edema, effusion or guarding, was noted. Gait was normal. No ankylosis was present. He complained of pain to palpation of the knees. Range of motion of the knees included flexion of 0 to 130 degrees in the right knee and 0 to 140 degrees in the left knee. Both knees had pain at30 degrees. Extension was full bilaterally at 0 degrees. Stability testing was normal, ligament stability testing was negative bilaterally. X-rays of the knees were negative bilaterally.

Legal Analysis

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Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4.

When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Generally, in a claim for increased rating, the most recent evidence is generally the most relevant, as the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994).

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. With diseases, preference is to be given to the number assigned to the disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. 38 C.F.R. § 4.27(2004). In every instance in which the rating 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 (2004).

The Board must consider the various potentially applicable codes to determine the appropriate ratings for these disabilities. With such consideration, the Board has reviewed the pertinent record and determines that the assigned 10 percent ratings for each knee are the proper ratings for these disorders. Moreover, the assigned noncompensable rating is appropriate for. the ankles, and the 10 percent rating is proper for the right heel calcaneal spur.

Disabilities will be rated on the basis of functional impairment. Weakness is considered as important as limitation of motion. Any part that becomes painful on use must be regarded as seriously disabled. It is the intent of the Rating Schedule to recognize painful motion with joint or periarticular pathology as productive of disability. 38 C.F.R. §§ 4.40, 4.45, 4.59.

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In DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court held that in evaluating a service-connected disability, the Board erred in not adequately considering functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination, and reduction on normal excursion of movements, including pain on movement of a joint under 38 C.F.R. § 4.45. In DeLuca, the Court held that a diagnostic code based on limitation of motion does not subsume 38 C.F.R. §§ 4.40 and 4.45 and that the rule against pyramiding set forth in 38 C.F.R. § 4.14 does not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use, including use during flare-ups.

The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10.

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2004). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2004).

Knees

The veteran's disorders of the right knee and left knee are each separately evaluated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5260 based on painful limited motion. As explained below, multiple rating codes must be considered when rating such a disability.

Under Diagnostic Code 5003, arthritis is rated based on limitation of motion under the appropriate codes for the joints involved. The General Counsel held that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257. See VAOPGCPREC 23-97 (July 1, 1997) and VAOPGCPREC 09-98 (August 14, 1998). Specifically, General Counsel for VA, in an opinion dated July 1, 1997, (VAOPGCPREC 23-97) held that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic

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Codes 5003, which provides for the presence of arthritis due to trauma, and 5257 that provides for instability. The General Counsel stated that when a knee disorder is rated under Diagnostic Code 5257 based upon instability of the knee, the veteran may also be entitled to a separate rating for arthritis if the veteran has limitation of motion which at least meets the criteria for a zero percent rating under Diagnostic Code 5260 (flexion limited to 60 degrees or less) or Diagnostic Code 5261 (extension limited to 5 degrees or more). 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5257, 5260, 5261 (2004). Limitation of motion of the knee is rated at 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261.

Limitation of flexion of the knee (normal being to approximately 140 degrees) will be rated as follows: Flexion limited to 15 degrees is 30 percent. Flexion limited at 30 degrees is 20 percent. Flexion limited to 45 degrees is 10 percent. Flexion greater than 45 degrees is 0 percent. 38 C.F.R. 4.71a, Diagnostic Code 5260 (2004).

Limitation of extension of the leg (normal being to approximately 0 degrees), will be rated as follows: Extension limited to 45 degrees is 50 percent. Extension limited to 30 degrees is 40 percent. Extension limited to 20 degrees is 30 percent. Extension limited to 15 degrees is 20 percent. Extension limited to 10 degrees is 10 percent. Extension limited to 5 degrees is 0 percent. 38 C.F.R. 4.71a, Diagnostic Code 5261 (2004).

Diagnostic Code 5257 is used to rate knee impairment. Knee impairment with recurrent subluxation and/or lateral instability is rated 10 percent when slight, 20 percent when moderate, and 30 percent when severe. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2004).

VA General Counsel has also issued VAOPGCPREC 9-2004, which provides that a veteran can receive separate ratings under Diagnostic Code 5260 (leg, limitation of flexion), and Diagnostic Code 5261 (leg, limitation of extension) for disability of the same joint.

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Ankylosis of the knee in flexion between 10 and 20 degrees warrants a 40 percent rating under Diagnostic Code 5256. Ankylosis is "immobility and consolidation of a joint due to disease, injury, surgical procedure." See Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)). 38 C.F.R. § 4.71a, Diagnostic Code 5256 (2004).

At no time does the medical evidence support a finding of slight subluxation or lateral instability for either knee under Diagnostic Code 5257. The medical evidence has consistently shown no instability. Laxity was not present in any examination report. The overwhelming weight of the medical evidence compels a conclusion that there is no appreciable instability.

As the veteran's bilateral knee disability is manifested by limitation of motion and there is a history of mild X-ray arthritis findings, the Board finds he is appropriately rated based on range of motion codes. Range of motion of the veteran's right knee and left knee reflect a degree of impairment under the rating schedule that does not warrant a disability rating in excess of 10 percent if rated under the limitation of motion codes. 38 C.F.R. § 4.71a, Diagnostic Code 5260, 5261. All VA examination reports show bilateral knee extension consistently at zero, which would not support a compensable rating. Right knee flexion at worst was 130 degrees, with pain reported on motion but no decrease in range due to repeated use during any examination. Similarly, the left knee at worst was 140 degrees, no noted decrease with repeated use. Neither of these supports a finding of an increased rating in excess of 10 percent.

These range of motion findings do not meet the criteria for an increased rating under Diagnostic Codes 5260 and 5261. At no time, even taking into account the possible additional limitations imposed by pain as objectively demonstrated on examinations, has flexion been limited to 30 degrees. The examiner in August 2004 specifically noted that the veteran did not have reduced range of motion due to fatigue or weakness upon repeated use. However, the relevant criteria permit a 10 percent rating to be assigned for impairment caused where there is some limitation of motion of a major joint but the limitation of motion is not so great as to meet the

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requirements for a compensable rating under the criteria for rating limitation of motion of the specific major joint. There is minimal arthritis. It is on this basis that the 10 percent ratings for each of the veteran's knees are supportable. See 38 C.F.R. § 4.59 (2004) ("With any form of arthritis, painful motion is an important factor of disability. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. "). Accordingly, the veteran's right knee is appropriately rated as 10 percent disabling under Diagnostic Code 5260. The veteran's left knee is also appropriately rated as 10 percent disabling under Diagnostic Code 5260. In order to warrant a 20 percent disability evaluation under the range of motion codes, flexion would have to be limited to 30 degrees or extension would have to be limited to 15 degrees, which is not shown.

The Board has also considered limitations imposed by pain and has used it in supporting the 10 percent ratings. 38 C.F.R. §§ 4.40,4.45; DeLuca v Brown, 8 Vet. App. 202 (1995). In this case, the veteran has pain on motion of the knees with repeated use but it does not cause additional limitation. The pain did not prevent all routine activities but caused them to be performed at an admittedly slower, decreased pace. The VA examiner observed in 2004 that there was no weakness, however. The veteran has attempted to control symptoms with anti-inflammatory medication baths and sports wraps. The veteran has not demonstrated flexion of the knees limited to 45 degrees or extension limited to 10 degrees warranting the assignment of a 10 percent rating under Diagnostic Code 5260 or 5261. Range of motion of his knees fell far short of these criteria. Again, the examination record shows he was managing the symptoms with his treatment regimen.

Any pain affecting function of the knees was not shown to a degree beyond that contemplated by the two separate 10 percent schedular evaluations assigned to these disabilities, as reflected by the medical findings of record which did not meet the criteria for the next higher schedular evaluations. Moreover, although the Board is required to consider the effect of pain when making a rating determination, which has been done in this case, it is important to emphasize that the rating schedule in

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this case does not provide a separate rating for pain. See Spurgeon v. Brown, 10 Vet. App. 194, 196 (1996).

The objective evidence reveals range of motion in the knees substantially better than that warranting any increased evaluation under either Code 5260 for limitation of flexion or Code 5261 for limitation of extension for any time. See VAOPGCPREC 9-2004. Additionally, to assign separate compensable ratings solely based on painful motion under two separate diagnostic codes (i.e., Diagnostic Codes 5260 and 5261) would be in violation of the rule of pyramiding up until April 14, 2004. See 38 C.F.R. § 4.14. Further, there is no other finding, such as ankylosis, which would support a higher schedular rating.

In view of the foregoing, the preponderance of the evidence is against the veteran's claims for a higher rating for his bilateral knee disorders. The evidence in these claims is not so evenly balanced so as to allow application of the benefit of the doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2004). .

Ankles

As to the bilateral ankle disorder, the veteran is currently assigned noncompensable percent ratings under 38 C.F.R. § 4.71, Diagnostic Codes 5271. X-ray studies in service and after service show that he has no degenerative arthritis of the ankles.

Standard motion of an ankle is from 0 degrees to 45 degrees of plantar flexion and from 0 to 20 degrees of dorsiflexion. 38 C.F.R. § 4.71, Plate II. A 10 percent rating is warranted for moderate limitation of motion of the ankle and a 20 percent rating is assigned when there is marked limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5271.

Code 5270 provides a 20 percent rating when the ankle is ankylosed in plantar flexion, less than 30 degrees. A 30 percent rating is assigned for ankylosIs of the ankle in plantar flexion between 30 degrees and 40 degrees or in dorsiflexion between 0 degrees and 10 degrees. A 40 percent rating is assigned for ankle

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ankylosis in plantar flexion at more than 40 degrees or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion or eversion deformity.

At no time does the medical evidence support a finding of ankylosis of either ankle under Diagnostic Code 5270, nor os calcis astragalus malunion or astragalectomy related to the ankles under Diagnostic Codes 5272, 5273, 5274. The X-ray medical evidence has consistently shown no arthritis. The diagnosis has consistently been bilateral ankle strain.

As the veteran's bilateral ankle disability is manifested by mild limitation of motion without X-ray arthritis findings and without ankylosis, the Board finds he is appropriately rated noncompensable under Diagnostic Code 5271. Range of motion of the veteran's ankles reflect a degree of impairment that is minimal and does not warrant a compensable disability rating under all appropriate codes. 38 C.F.R. § 4.71a, Diagnostic Codes 5270-5274. No examination, private or VA treatment records support a finding of compensable rating for the bilateral ankle strain.

The Board has also considered limitations imposed by pain and finds that it does not support compensable ratings in this case. 38 C.F.R. §§ 4.40, 4.45; DeLuca v Brown, 8 Vet. App. 202 (1995). The veteran has pain on motion of the ankles with repeated use but it does not cause additional limitation. The pain did not prevent all routine activities but caused them to be performed at an admittedly slower, decreased pace. The VA examiner observed in 2004 that there was no weakness, however. The veteran has attempted to control symptoms with anti-inflammatory medication. Range of motion of his ankles is mildly limited. Again, the examination record shows he was managing the symptoms with his treatment regimen.

Any pain affecting function of the knees was not shown to a compensable degree. Moreover, although the Board is required to consider the effect of pain when making a rating determination, which has been done in this case, it is important to emphasize that the rating schedule in this case does not provide a separate rating for pain. See Spurgeon v. Brown, 10 Vet. App. 194, 196 (1996).

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The objective evidence reveals range of motion in the ankles which, considering the Plate referenced above, is substantially better than that equating to moderate. Thus warranting any increased evaluation under Diagnostic Code 5271 at this time.

In view of the foregoing, the preponderance of the evidence is against the veteran's claims for a compensable rating for his bilateral ankle strain. The evidence in this claim is not so evenly balanced so as to allow application of the benefit of the doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2004).

Right Calcaneal Heel Spur

The RO has rated the veteran's right heel spur disability under Diagnostic Code 5284. The Board will also consider Diagnostic Codes 5167 and 5283 for loss of the use of foot and malunion or nonunion of the tarsal or metatarsal bones. A 10 percent rating under Diagnostic Code 5283 or Diagnostic Code 5284, respectively, requires moderate malunion or nonunion of the tarsal or metatarsal bones or moderate residuals of foot injuries. Moderately severe malunion or nonunion of the tarsal or metatarsal bones, or moderately severe residuals of foot injuries warrants a 20 percent evaluation. A 30 percent evaluation is warranted under Diagnostic Code 5283 or Diagnostic Code 5284 with severe malunion or nonunion of the tarsal or metatarsal bones, or severe residuals of foot injuries.

The Board also notes that a 40 percent rating is for assignment where there is the loss of use of a foot. 38 C.F.R. § 4.71a, Diagnostic Code 5167 (2004). Loss of use of a foot will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the knee, with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function of the foot, whether the acts of balance and propulsion, etc., could be accomplished equally well by an amputation stump with prosthesis. Complete paralysis of the external popliteal nerve and consequent foot drop, accompanied by characteristic organic changes including trophic and circulatory disturbances and other concomitants confirmatory

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of complete paralysis of this nerve, will be taken as loss of use of the foot. 38 C.F.R. § 4.63 (2004).

VA examinations and X-ray reports discussed above showed in relevant part a right calcaneal heel spur. There were no fractures, osteomyelitis, or foreign bodies identified. The diagnosis on private treatment records has consistently been right calcaneal heel spur. There was consistent pain with palpation related to this spur.

The Board has considered functional impairment as set forth in the Deluca case. However, in view of the medical findings of normal findings of strength and the lack of weakness, the Board finds that the degree of functional impairment due to pain is adequately reflected in the current 10 percent rating.

After reviewing the evidence on file, it is the conclusion of the Board that a higher rating is not warranted at this time. Specifically, while a diagnosis of calcaneal spur is shown, there is no indication of a moderately severe malunion or nonunion of the tarsal or metatarsal bones, or moderately severe residuals of a foot injury. There is no indication of functional loss of use of the foot or limitation of motion of the foot. While the veteran has reported pain in the heel, the Board concludes that it is adequately compensated by the award of a 10 percent disability rating. Therefore, there is no basis for a higher rating at this time.

Extraschedular ratings

In exceptional cases where schedular evaluations are found to be inadequate, the RO may refer a claim to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of "an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2004). "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) (2004).

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To the extent the veteran has asserted that the symptoms and manifestations of his service-connected bilateral knees, ankles and right calcaneal heel spur require frequent hospitalization, the record does not reflect this fact. Nor is there probative evidence showing marked interference with employment as the result of his service-connected knee, ankle and right heel spur disorders. Although the veteran has urged that he has trouble with employment and that he has had to change employment, he reports that he has continued to work despite his impairments, albeit with the limitations created by his service-connected disabilities for which he is receiving compensation. In sum, the evidence he has presented does not reflect a disability picture that is so exceptional or unusual that it is not adequately, represented by VA's Schedule. Accordingly, the Board does not find that additional action is warranted under 38 C.F.R. § 3.321(b)(1).

III  New and Material Evidence Claims

A decision of a duly constituted rating agency or other agency of original jurisdiction is final and binding as to all field offices of the Department as to written conclusions based on evidence on file at the time the appellant is notified of the decision. 38 C.F.R. § 3.104(a) (2004). Such a decision is not subject to revision on the same factual basis except by a duly constituted appellate authority. Id. A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. 38 C.F.R. §§ 3.160(d), 20.1103 (2004).

To reopen a claim which has been previously denied and which is final, the claimant must present new and material evidence. 38 U.S.C.A. § 5108 (West 2002). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a

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reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2004). When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992).

Service medical records show treatment of headaches on approximately five occasions, when the veteran was suffering from other acute illnesses. No diagnosis of chronic headaches or a headache disorder was made. He was also noted to have spina bifida, SI, and scoliosis, based on X-rays taken in 1979, shortly after he entered service.

A VA examination/separation examination report dated in July 2000 reflects no diagnosis of headaches. X-rays of the lower back were reported as normal. No pertinent diagnosis was noted for scoliosis or spina bifida but lower back strain was diagnosed.

In an October 2000 rating decision, the RO denied service connection for dextroconvex scoliosis, mid lumbar spine with spina bifida, S1 and headaches. The Board notes parenthetically that service connection was granted for low back strain in that decision. The RO noted that a current headache disorder was not shown by evidence of record to be related to service. Moreover, it noted that dextroconvex scoliosis, mid lumbar spine with spina bifida, S1, was a congenital developmental condition, that it was unrelated to military service and that it was not subject to service connection consistent with 38 C.F.R. § 3.303 (c). The veteran was informed of this decision by letter dated November 21, 2000, and did not appeal the RO's determination within a year as to these issues.

The RO's October 2000, rating decision is a final decision not subject to revision on the same factual basis. 38 U.S.C.A. § 7105. In order to reopen this claim, the appellant must present new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. §3.156(a). The veteran sought to reopen the claim in December 2002.

Evidence received since the October 2000 rating decision included VA treatment records and records from Army facilities and private doctors showing the veteran has neck strain and various back strain complaints. No doctors have opined that a

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chronic headache disorder was incurred in service or that the scoliosis or spina bifida is in any way etiologically related to service.

The evidence received since the October 2000 rating decision which denied service connection for dextroconvex scoliosis and headaches is not new and materiaL. Treatment records from Scott and White Memorial Hospital dated in February 2004 show slight dorsal scoliosis. Any new medical records showing diagnoses of or treatlment for dextroconvex scoliosis and headaches many years after service are cumulative. There was medical evidence before the RO in October 2000 showing that the veteran had such disabilities.

The veteran's contentions that his scoliosis and headaches are related to active service are not new. His statements are essentially a repetition of his previous assertions that were before the RO in 2000, and are basically cumulative and not new. See Paller v. Principi, 3 Vet. App. 535,538 (1992) (distinguishing corroborative evidence from cumulative evidence). Moreover, the lay statements concerning the onset of any such condition are not competent. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992).

Medical records that do not mention a scoliosis or headaches, even if new, are not material. The fact that the veteran is presently or was impaired due to other medical problems is not a matter in dispute.

Nor do the additional medical records in any way provide a medical linkage of the veteran's current scoliosis or headaches and his active service. There is no medical evidence indicating that the veteran has scoliosis that is not a congenital or developmental defect or that had its onset during active service. Nor is there medical evidence indicating the veteran has a chronic headache disorder that is related to service, or that such a chronic disease was present within one year after his separation from service, or relating any current headaches to any in-service disease or injury. To the contrary, the VA records and private records submitted since October 2000 primarily relate to the veteran's post-service orthopedic problems other than scoliosis. Accordingly, even if new, the Board finds that these records do not relate to an unestablished fact necessary to substantiate the claim.

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Thus, new and material evidence has not been presented, and the claims of service connection for dextroconvex scoliosis, mid lumbar spine with spina bifida, S1, and headaches are not reopened.

ORDER

Entitlement to a rating in excess of 10 percent for patellofemoral pain syndrome, right knee, is denied.

Entitlement to a rating in excess of 10 percent for patellofemoral pain syndrome, left knee, is denied.

Entitlement to an increased (compensable) rating for bilateral ankle strain is denied.

Entitlement to a rating in excess of 10 percent for right heel calcaneal spur is denied.

New and material evidence not having been presented to reopen a claim of entitlement to service connection for dextroconvex scoliosis, mid lumbar spine with spina bifida, S1, that claim remains denied.

New and material evidence not having been presented to reopen a claim of entitlement to service connection for headaches, that claim remains denied.

JEFF MARTIN
Veterans Law Judge, Board of Veterans' Appeals

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