Citation Nr: 0938734 Decision Date: 10/13/09 Archive Date: 10/22/09 DOCKET NO. 06-25 171 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 10 percent for ulcerative colitis. 2. Entitlement to a compensable rating for residuals of a right ankle fracture. 3. Entitlement to service connection for hemorrhoids. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD K. Gielow, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1992 to December 2004. This matter comes before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. FINDINGS OF FACT 1. Throughout the entire period of the claim, ulcerative colitis has been manifested by moderately severe symptomatology, with frequent exacerbations; severe ulcerative colitis with malnutrition has not been shown. 2. Throughout the entire period of the claim, residuals of a right ankle fracture have been manifested by subjective complaints of pain; objective findings include full range of motion not further limited by pain and without ankylosis, but MRI findings demonstrate edema and irregularities of the ligaments and articular surface of the tibia fibular joint. 3. Hemorrhoids are not currently shown. CONCLUSIONS OF LAW 1. The criteria for a 30 percent rating, but no more, for ulcerative colitis have been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.114, Diagnostic Code (DC) 7346-7323 (2009). 2. The criteria for a 10 percent rating, but no more, for residuals of a right ankle fracture have been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, DCs 5262, 5270, 5271, 5272, 5273, 5274 (2009). 3. Hemorrhoids were not incurred in or aggravated by service; a current disability is not shown. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.303 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the United States Court of Appeals for the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the analysis below will focus specifically on what the evidence shows, or fails to show. Increased Rating Claims Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2009). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2009). However, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2009). 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 Veteran. 38 C.F.R. § 4.3 (2009). At the outset, the Board notes that the Veteran is appealing the initial disability ratings assigned for ulcerative colitis and residuals of a right ankle fracture. As such, the claims require consideration of the entire time period involved, and contemplate staged ratings where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). Ulcerative Colitis Under DC 7323, a 30 percent rating for ulcerative colitis is warranted if the evidence shows moderately severe manifestations, with frequent exacerbations. A 60 percent rating is warranted upon evidence of "severe" symptomatology, characterized by numerous attacks a year and malnutrition with health only fair during remissions. 38 C.F.R. § 4.114 (2009). After carefully reviewing the evidence of record, the Board finds that the criteria for a 30 percent rating for ulcerative colitis have been met. Specifically, the evidence demonstrates frequent episodes of ulcerative colitis that are moderately severe in nature. In this regard, the Board notes that since October 2003, the Veteran has complained of frequent bouts of chronic diarrhea with abdominal pain and cramping. In a December 2003 service treatment record, he reported a history of 10 to 12 stools per day, with some improvement in frequency to five stools per day. Moreover, the Veteran continued to seek treatment for chronic diarrhea and incontinence until his discharge in December 2004 (treatment reports noted ongoing problems with colitis in July 2004, incontinence and blood in stool in September 2004, and a worsening of symptoms in November 2004). Moreover, during a November 2004 VA examination, he reported having difficulty controlling bowel movements and experiencing diarrhea every other day, with blood and mucous, despite being treated with prednisone and Asacol. The Board finds the demonstrated evidence of chronic diarrhea, blood in stool, and abdominal cramping to be suggestive of frequent exacerbations, moderately severe in nature. Accordingly, the criteria for a rating of 30 percent for ulcerative colitis have been met. In determining whether the Veteran may be entitled to the next-higher rating, DC 7323 provides that a 60 percent rating is warranted upon evidence of "severe" symptomatology, characterized by numerous attacks a year and malnutrition with health only fair during remissions. As stated above, frequent exacerbations of ulcerative colitis have been shown; however, the evidence does not show that the Veteran has experienced malnutrition as a result of his disorder, a threshold component for a 60 percent rating. Specifically, even though a 5-pound weight loss was noted in December 2003, just prior to the diagnosis, service treatment reports and post-service evidence is absent for any findings of malnutrition. Nor does the evidence suggest that his health remains only fair during periods of remission. It is for these reasons that the Board finds that a 60 percent rating for ulcerative colitis is not warranted. In light of the discussion above, the evidence demonstrates that the Veteran is entitled to a 30 percent rating, but no more, for ulcerative colitis. To this extent, the appeal is granted. Residuals of a Right Ankle Fracture The Board acknowledges that in evaluating musculoskeletal disabilities, consideration must be given to additional functional limitation due to factors such as pain, weakness, fatigability, and incoordination. See 38 C.F.R. §§ 4.40 and 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The Court has held that diagnostic codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare- ups under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See Johnson v. Brown, 9 Vet. App. 7 (1996); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). VA regulations require that a finding of dysfunction due to pain must be supported by, among other things, adequate pathology. 38 C.F.R. § 4.40 ("functional loss due to pain is to be rated at the same level as the functional loss when flexion is impeded"); see Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1993). A VA General Counsel opinion has also held that DC 5293, intervertebral disc syndrome, involved loss of range of motion and that consideration of 38 C.F.R. §§ 4.40 and 4.45 was applicable. See VAOPGCPREC 37-97. Here, the Veteran contends that he is entitled to a compensable rating for residuals of a right ankle fracture. According to 38 C.F.R. § 4.71a, a 10 percent rating for an ankle disability is warranted when the evidence shows the following: * impairment of the tibia and fibula, with slight knee or ankle disability (a 10 percent rating under DC 5262); * moderate limitation of motion (a 10 percent rating under DC 5271); * ankylosis of the subastragalar or tarsal joint in a good weight-bearing position (a 10 percent rating under DC 5272); or * moderate deformity associated with the malunion of the os calcis or astragalus (a 10 percent rating under DC 5273). After a review of all of the evidence, the Board finds that a compensable rating for residuals of a right ankle fracture is warranted. Specifically, the Veteran has complained of chronic pain associated with the right ankle, especially upon walking, running, and tip-toeing. Moreover, a December 2004 MRI indicated irregularities of the anterior talofibular ligament and lateral collateral ligaments, with a mild irregularity of the articular surface at the tibia fibular joint and moderate edema compatible with a bony contusion of the fibula. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, actually painful, unstable, or malaligned joints, due to healed injury, are as entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59 (2009). In this case, given the subjective evidence of pain and the objective evidence of periarticular pathology demonstrated in the December 2004 MRI, the Board finds that the Veteran is entitled to a compensable rating for a right ankle disability under the provisions of 38 C.F.R. § 4.59. Next, in considering whether the Veteran may be entitled to a disability rating in excess of 10 percent, a 20 percent disability rating is warranted when the evidence shows the following: * impairment of the tibia and fibula, with moderate ankle disability (a 20 percent rating under DC 5262); * ankylosis of the ankle in plantar flexion, less than 30 degrees (a 20 percent rating under 5270); * marked limitation of motion (a 20 percent rating under DC 5271); * ankylosis of the subastragalar or tarsal joint in a poor weight-bearing position (a 20 percent rating under DC 5272); or * marked deformity associated with the malunion of the os calcis or astragalus (a 20 percent rating under DC 5273). Initially, the Board notes that impairment of the tibia and fibula, with moderate ankle disability, has not been shown. Even considering the MRI findings noting a mild irregularity at the tibia fibular joint adjacent to the bone fragment and moderate edema of the fibula, the Board finds that the Veteran's symptomatology has been productive of no more than a slight disability of the ankle. In characterizing the Veteran's ankle disability as slight, the Board notes that the November 2004 VA examination revealed anatomically normal range of motion of the right ankle. Furthermore, the examiner noted that range of motion was not further limited by pain, fatigue, weakness, lack of endurance, or incoordination. Importantly, the VA examiner indicated that the Veteran's gait was normal and that no assistive device was needed for ambulation. In accordance with these findings, substantial function of the right ankle has been demonstrated despite his complaints of chronic right ankle pain. While the November 2004 VA examiner did not explicitly characterize the Veteran's resulting disability as "slight" or "moderate" in severity (the examiner noted the right ankle to be asymptomatic at present), the evidence demonstrates no more than subjective complaints of pain. For these reasons, the Board finds that a moderate ankle disability impairment of the tibia and fibula, with moderate ankle disability, has not been shown. Next, neither ankylosis nor marked limitation of motion of the right ankle has been shown. In fact, the Veteran demonstrated full range of motion in the November 2004 VA examination (dorsiflexion to 20 degrees and plantar flexion to 45 degrees). Additionally, the examiner expressly noted that there was "no ankylosis." Therefore, the evidence does not support an increased rating under DC 5270 or 5271. The Board also notes that the evidence does not show marked deformity associated with the malunion of the os calcis or astragalus, as is necessary to receive a rating pursuant to DC 5273. In fact, November 2004 X-rays were negative for abnormalities, and there was no mention of any malunion of the os calcis or astragalus in the December 2004 MRI findings. Without evidence of malunion of the os calcis or astragalus, DC 5273 is not for application. Next, the Board has also considered whether there is any additional limitation of function due to factors such as pain, weakness, incoordination ,and fatigability. See 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Specifically, 38 C.F.R. § 4.45(f) states that "[p]ain on movement, swelling, deformity or atrophy of disuse" as well as "[i]nstability of station, disturbance of locomotion, interference with sitting, standing and weight- bearing" are relevant considerations for determination of joint disabilities. Painful motion is considered limited motion at the point that the pain actually sets in. See VAOPGCPREC 9-98. In this case, even with consideration of additional functional impairments due to right ankle pain, the evidence does not show limitation of motion that more nearly approximates the criteria for a 20 percent rating. Specifically, in the November 2004 VA examination, the examiner expressly noted that the Veteran was able to walk without the use of any assistive devise, that his gait was normal, and that he had full range of motion of the right ankle, which was not further limited by pain, fatigue, weakness, or lack of endurance. Although the Veteran reported being unable to run due to right ankle pain, in being able to ambulate without assistance and perform the range of motion tests, the Board finds that he demonstrated significant range of motion in the right ankle notwithstanding his subjective complaints of pain. For these reasons, the Board finds that the evidence does not show a limitation of motion that more nearly approximates the next-higher rating based upon limitation of motion even with consideration of the DeLuca factors. In conclusion, the Board finds that the Veteran is entitled to a 10 percent disability rating, but no more, for residuals of a right ankle fracture. To this extent, the appeal is granted. Further, the Board finds that his symptoms remained constant throughout the course of the period on appeal and, as such, staged ratings are not warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). With regard to both of the Veteran's claims for increased ratings, the Board has also considered his statements that his disabilities are worse. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. He is not, however, competent to identify a specific level of disability of these disorders, which are addressed under the appropriate diagnostic codes. Such competent evidence-concerning the nature and extent of the Veteran's ulcerative colitis and right ankle disability- has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings, as provided in the examination report, directly address the criteria under which these disabilities are evaluated. As such, the Board finds these records to be more probative than the Veteran's subjective evidence of complaints of increased symptomatology. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (interest in the outcome of a proceeding may affect the credibility of testimony). The Board has further considered the provisions of 38 C.F.R. § 3.321(b)(1)(2009) but finds that the evidence does not show that either the Veteran's ulcerative colitis or right ankle fracture residuals have caused marked interference with employment beyond that contemplated by the schedule for rating disabilities, necessitated frequent periods of hospitalization, or otherwise renders impractical the application of the regular schedular standards. In this case, the evidence does not demonstrate frequent periods of hospitalization for either the right ankle or for ulcerative colitis. Further, the Veteran reported that he was working as an aircraft mechanic during the November 2004 VA examination. Accordingly, the Board finds that the evidence indicates that his ulcerative colitis and right ankle disability have not caused marked interference with employment. For these reasons, the Board finds that the requirements for a referral for an extraschedular evaluation under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). Service Connection for Hemorrhoids Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2009). However, continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (2009). Further, service connection may also 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 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2009). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. See 38 U.S.C.A. § 1110 (West 2002); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). "In the absence of proof of a present disability there can be no valid claim." See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In the present case, the Veteran is claiming entitlement to service connection for hemorrhoids. After a careful review of the evidence, however, the Board finds that his claim must fail because the evidence does not establish a current disability relating to hemorrhoids. The Board recognizes the Veteran's subjective history of hemorrhoids, which he treated with over-the-counter medication. However, in November 2004, examination of the rectal area revealed negative findings. Of significance, and the VA expressly determined that there was "no pathology to render a diagnosis." The Board further finds that the November 2004 VA examination was adequate for evaluation purposes. Specifically, interviewed the Veteran and conducted a physical examination. There is no indication that the VA examiner was not fully aware of the Veteran's past medical history or that he misstated any relevant fact. Moreover, there is no contradicting medical evidence of record. Therefore, the Board finds the VA examiner's opinion to be of great probative value. The Board has also considered the Veteran's statements asserting the he has hemorrhoids. While the Board reiterates that he is competent to report symptoms as they come to him through his senses, hemorrhoids, especially the internal-type of hemorrhoids being claimed in this case, is not the type of disorder that a lay person can provide competent evidence on questions of etiology or diagnosis. Such competent evidence has been provided by the medical personnel who have examined the Veteran during the current appeal and by service records obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings, which indicated a normal rectal examination and also attributed his rectal bleeding to an alternative source (ulcerative colitis), than to his statements. See Cartright, 2 Vet. App. at 25. In the absence of evidence of a current disability relating to hemorrhoids which is due to service or to a service- connected disability, the Board must find that the preponderance of the evidence is against the claim; the benefit-of-the doubt doctrine is inapplicable and the claim is denied. Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). Proper notice from VA must inform the claimant of any information and medical or lay 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). When VCAA notice is delinquent or erroneous, the "rule of prejudicial error" applies. See 38 U.S.C.A. § 7261(b)(2). In the event that a VA notice error occurs regarding the information or evidence necessary to substantiate a claim, VA bears the burden to show that the error was harmless. However, the appellant bears the burden of showing harm when not notified whether the necessary information or evidence is expected to be obtained by VA or provided by the appellant. See Shinseki v. Sanders, 556 U.S. ___ (2009). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. With regard to the Veteran's claim for a higher evaluation for ulcerative colitis and residuals of a right ankle fracture, these claims arise from his disagreement with the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. As to his service-connection claim, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in November 2004 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2009). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Here, the RO has obtained service treatment records, and the Veteran submitted statements on his behalf. Moreover, specific medical opinions pertinent to the issues on appeal were obtained in November 2004. Therefore, the available records and medical evidence have been obtained in order to make adequate determinations as to these claims. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 ORDER A 30 percent rating, but no more, is granted for ulcerative colitis, subject to governing criteria applicable to the payment of monetary benefits. A 10 percent rating, but no more, is granted for residuals of a right ankle fracture, subject to governing criteria applicable to the payment of monetary benefits. Service connection for hemorrhoids is denied. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs