Citation Nr: 0810936 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 03-24 197 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for allergic rhinitis with headaches. 2. Entitlement to service connection for a bilateral ankle disability, claimed as tendinitis. 3. Entitlement to service connection for muscle strain of the back. 4. Entitlement to higher initial ratins for external hemorrhoids, evaluated as noncompensable prior to May 1, 2006 and 10 percent disabling thereafter. 5. Entitlement to an initial compensable rating for bilateral shin splints. 6. Entitlement to an initial compensable evaluation for the residuals of fracture of the left (nondominant) hand navicular bone. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The veteran served on active duty from April 1980 to September 1991. This case comes before the Board of Veterans' Appeals on appeal of October 2002 and July 2006 decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In a rating decision of February 2005, the RO granted service connection for degenerative joint disease of the right and left knees. Accordingly, those issues, which were formerly on appeal, are no longer before the Board. The Board further notes that, in correspondence of October 2005, the veteran withdrew from consideration the issues of higher initial ratings for service-connected bilateral pes planus and the postoperative residuals of bilateral bunionectomy. Accordingly, the RO dismissed those issues prior to certification of the appeal to the Board. Moreover, during the course of a videoconference hearing before the undersigned Acting Veterans Law Judge in November 2007, the veteran and his accredited representative confirmed the intent to withdraw those appeals and additionally requested that the veteran's claim for service connection for "headaches" be considered as "part and parcel" of his claim for service connection for allergic rhinitis. See Transcript, page 21. Accordingly, the issue has been characterized as such on the title page of this decision. Finally, for reasons which will become apparent, the appeal as to the issues of service connection for allergic rhinitis with headaches, muscle strain of the back, and a bilateral ankle disability, as well as entitlement to a current evaluation in excess of 10 percent for service-connected external hemorrhoids, is being REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. VA will notify you if further action is required on your part. FINDINGS OF FACT 1. The veteran's service-connected bilateral shin splints are, at present, essentially asymptomatic, with evidence of some tenderness in the area just medial and lateral to the shin bone and mild uptake in the midtibial regions consistent with stress reaction, but no shortening, deformity, or abnormal movements, and no pain on motion, or functional limitation on walking or standing. 2. The veteran's service-connected residuals of fracture of the left (minor) navicular bone are presently characterized by a normal range of motion, with no swelling, redness, or signs of deformity, and no obvious pain or tenderness. CONCLUSIONS OF LAW 1. The criteria for a compensable evaluation for service- connected bilateral shin splints have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.31, 4.45, 4.71a, and Part 4, Codes 5099-5020, 5003 (2007). 2. The criteria for a compensable evaluation for the service-connected residuals of fracture of the left (minor) navicular bone have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.31, 4.71a, and Part 4, Code 5215 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran in this case seeks higher initial ratings for service-connected bilateral shin splints and the residuals of fracture of the left (minor) navicular bone. The Board wishes to make it clear that it has reviewed all the evidence in the veteran's claims file, which includes: his multiple contentions, including those raised at a videoconference hearing before the undersigned Acting Veterans Law Judge in November 2007, as well as service medical records, and both VA treatment records and examination reports. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the veteran's claims, and what the evidence in the claims file shows, or fails to show, with respect to that claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000), and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Disability evaluations are intended to compensate for the average impairment of earning capacity resulting from a service-connected disability. They are primarily determined by comparing objective clinical findings with the criteria set forth in the Rating Schedule. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2007). Where there is a question as to which of two evaluations apply, the higher evaluation will be assigned where the disability picture more nearly approximates the criteria for the next higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2007). While the Board must consider the veteran's medical history as required by various provisions under 38 C.F.R. Part 4, including Section 4.2 [see Schafrath v. Derwinski, 1 Vet. App. 589 (1991)], the regulations do not give past medical reports precedence over current findings. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform the working movements of the body with normal excursion, strength, coordination, and endurance. The functional loss may be due to the absence of part or all of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion and a part which becomes painful on use must be regarded as seriously disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2007); see also 38 C.F.R. § 4.45 (2007). Where, as in this case, an appeal stems from an initial rating, VA must frame and consider the issue as to whether separate or "staged" ratings may be assigned for any or all of the retroactive period from the effective date of the grant of service connection to a prospective rating. See Fenderson v. West, 12 Vet. App. 119 (1999). In the case at hand, in a rating decision of October 2002, the RO granted service connection and noncompensable evaluations for bilateral shin splints and the residuals of fracture of the left hand navicular bone. The veteran voiced his disagreement with that decision, and the current appeal ensued. With regard to the issue of an initial compensable evaluation for service-connected bilateral shin splints, the Board notes that the veteran's service-connected lower extremity disability is rated by analogy to synovitis [see 38 C.F.R. §§ 4.20, 4.71a, and Part 4, Code 5020 (2007)], which is itself rated on the basis of limitation of motion of affected parts as degenerative arthritis. Degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. However, in the absence of limitation of motion, a 10 percent evaluation is to be assigned where there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups. 38 C.F.R. § 4.71a and Part 4, Code 5003 (2007). In the present case, at the time of a VA medical examination in September 2002, the veteran complained of pain in both of his shins, which was exacerbated by, among other things, prolonged standing and walking, and alleviated by rest, elevation, ice, and medication. According to the veteran, his service-connected shin splints did not affect his occupation as a corrections officer. On physical examination, there was some tenderness to palpation of the veteran's bilateral shins, though with no evidence of deformity, and no edema, weakness, redness, or heat. Nor was there any abnormality of the veteran's gait attributable to his shins. Significantly, at the time of examination, radiographic studies of the veteran's bilateral tibia and fibula were within normal limits. On subsequent VA medical examination in November 2004, a bone scan of the veteran's lower extremities showed evidence of a diffuse increased uptake in both tibial shafts consistent with shin splints. However, a physical examination of the veteran's lower extremities conducted at that time showed no evidence of any deformity. Nor was there any evidence of edema, weakness, redness, or heat. At the time of examination, there was no tenderness to palpation in either of the veteran's shins. Nor was there any abnormality of the veteran's gait attributable to his shin splints. The Board notes that, at the time of a recent VA medical examination in May 2006, the veteran complained of "on and off" soreness of the anterior part of his lower legs, in particular, on the sides of the bone. However, he denied any problems with weakness, stiffness, heat, swelling, or instability, and any giving way or lack of mobility. According to the veteran, he experienced no functional limitation of walking or standing, and his condition did not usually affect his daily activities or his job. While a bone scan of the veteran's lower extremities once again showed evidence of a mild uptake in the mid-tibia consistent with stress reaction, a physical of the veteran's lower extremities was essentially unremarkable. Based on the aforementioned, it is clear that the noncompensable evaluation currently in effect for the veteran's bilateral shin splints is appropriate, and that an increased rating is not warranted for any time during the appeal period. More specifically, since the time of the initiation of the veteran's current appeal, there has been no X-ray evidence of arthritis (other than of the knees, for which separate ratings are currently in effect), or of any painful or limited motion of a major joint or group of minor joints. While the veteran describes pain and functional impairment, the medical evidence does not demonstrate the existence of current disability meeting the criteria for a compensable rating at this time. Accordingly, an increased evaluation for the veteran's service-connected bilateral shin splints must be denied. Turning to the issue of an initial compensable evaluation for the service-connected residuals of fracture of the left (minor) navicular bone, the Board notes that a compensable evaluation is warranted where there is evidence of limitation of motion of the wrist, with palmar flexion limited to in line with the forearm, and/or dorsiflexion of less than 15 degrees. 38 C.F.R. § 4.71a and Part 4, Code 5215 (2007). However, at all times during the course of the veteran's current appeal, range of motion of his service-connected left wrist has been within normal limits. More specifically, as of the time of a recent VA medical examination in May 2006, the veteran's left wrist showed flexion to 80 degrees, with dorsiflexion to 70 degrees, radial deviation to 20 degrees, and ulnar deviation to 40 degrees, with no evidence of pain, loss of motion from pain, fatigue, weakness, or any lack of endurance. Significantly, during a course of a videoconference hearing before the undersigned Acting Veterans Law Judge in November 2007, the veteran indicated that his left wrist gave him problems only with weather changes. Based on the aforementioned, the Board is of the opinion that the noncompensable evaluation currently in effect for the veteran's service-connected residuals of fracture of the left navicular bone is appropriate, and that an increased rating is not warranted. The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the United States Court of Appeals for Veterans Claims (Court) held that VA must (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; (3) inform the veteran about the information and evidence the claimant is expected to provide; and (4) request that the veteran provide any evidence in his possession that pertains to the claim. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) also requires VA to notify a claimant that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the veteran is challenging the initial evaluations assigned following the grants of service connection. In Dingess, the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service- connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. Nonetheless, an RO letter dated November 2005 informed the veteran that, in order to substantiate his claims for increased ratings, he needed to show that service-connected disabilities had undergone an increase in severity. He was specifically advised to send in any medical reports pertinent to his claims as well as any other evidence or information in his possession pertinent to his claims. A March 2006 letter advised him of the criteria for establishing an initial disability rating and effective date of award. The Board further notes that, during the appeal period, the veteran has presented statements and testimony concerning the effects his service connected disabilities have upon his employment and daily life. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). With respect to the claims decided above, the diagnostic codes used to evaluate his claims largely involve relatively straightforward criteria to which he has directly presented lay evidence. Thus, to the extent any notice errors have occurred, the veteran and his representative have provided argument indicating actual knowledge of the evidentiary requirements. As such, any potential notice errors have not resulted in any prejudice to the veteran. See Sanders v. Nicholson, 487 F.3d. 881, 889-891 (Fed. Cir. 2007). VA must also make reasonable efforts to assist the veteran 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; 38 C.F.R. § 3.159. In connection with the current appeal, VA has obtained the veteran's service medical records, as well as VA treatment records and examination reports. VA examinations were provided to evaluate the current nature and severity of his disabilities. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claims. The evidence of record provides sufficient information to adequately evaluate the claims, and the Board is not aware of the existence of any additional relevant evidence which has not been obtained. Therefore, no further assistance to the veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). ORDER An initial compensable evaluation for service-connected bilateral shin splints is denied. An initial compensable evaluation for the service-connected residuals of fracture of the left (nondominant) hand navicular bone is denied. REMAND In addition to the above, the veteran in this case seeks service connection for allergic rhinitis with headaches, a bilateral ankle disability, and muscle strain of the back, as well as a current evaluation in excess of 10 percent for service-connected external hemorrhoids. In pertinent part, it is contended that the veteran's allergic rhinitis with accompanying headaches, bilateral ankle disability, and muscle strain of the back had their origin during his period of active military service. The veteran additionally contends that current manifestations of his service-connected external hemorrhoids are more severe than presently evaluated, and productive of a greater degree of impairments currently assigned. In that regard, a review of the record discloses that, while in service, the veteran received treatment for allergic rhinitis and headaches, as well as for various ankle and low back problems. While at the time of a service separation examination in June 1991, there was no evidence of any of those disabilities, since the time of the veteran's discharge, he has consistently complained of problems with his nose and/or sinuses, as well as with his lower back and ankles. Moreover, on at least one occasion, radiographic studies have been consistent with the presence of sinusitis. The Board further observes that, while in September 2002, the veteran underwent a VA examination, which examination yielded a diagnosis of tendinitis of the bilateral ankles, no opinion was offered as to the relationship, if any, between that pathology and the veteran's various ankle problems in service. Moreover, to date, the veteran has yet to undergo VA examinations of his allergic rhinitis (with accompanying headaches) or claimed low back disability. Under the circumstances, the Board is of the opinion that appropriate VA examinations should be undertaken prior to a final adjudication of the veteran's current claims for service connection. See McLendon v. Nicholson, 20 Vet. App. 79, 84- 86 (2006). Turning to the issue of a current evaluation in excess of 10 percent for external hemorrhoids, the Board notes that, at the time of a VA medical examination in November 2004, the veteran denied any problems with fecal leakage or rectal fissures, and additionally indicated that he had never received a diagnosis of anemia. While on physical examination, there was no evidence of any tenderness or bleeding, as of the time of a subsequent VA examination in May 2006, the veteran indicated that he had experienced "off and on" bleeding at least once or twice a month. Significantly, during the course of that examination, it was noted that laboratory studies conducted only two months earlier had shown evidence of a lowered hemoglobin level, a finding consistent with a somewhat lowered hematocrit level in June of 2005. The Board observes that, during the course of the aforementioned videoconference hearing before the undersigned Acting Veterans Law Judge in November 2007, the veteran indicated that, whenever he went to the bathroom, he experienced bleeding from his rectum. See Transcript, page 30. Moreover, when further questioned, the veteran indicated that he experienced some leakage of blood even on those occasions when he was not attempting to defecate. See Transcript, page 32. Under the circumstances, the Board is of the opinion that an additional, more contemporaneous examination would be appropriate prior to a final adjudication of the veteran's claim for higher initial ratings for his service-connected external hemorrhoids. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); see also VAOPGCPREC 11-95 (April 7, 1995). Accordingly, in light of the aforementioned, the case is REMANDED to the RO for the following actions: 1. Any pertinent VA or other inpatient or outpatient treatment records, subsequent to June 2006, the date of the most recent evidence of record, should be obtained and incorporated in the claims folder. The veteran should be requested to sign the necessary authorization for release of any private medical records to the VA. All attempts to procure records should be documented in the file. If the RO cannot obtain records identified by the veteran, a notation to that effect should be included in the claims file. In addition, the veteran and his representative should be informed of any such problem. 2. The veteran should then be afforded additional VA otolaryngologic, orthopedic, and rectal examinations in order to more accurately determine the exact nature and etiology of his claimed bilateral ankle and low back disabilities, and the current severity of his service-connected external hemorrhoids. The RO is advised that the veteran must be given adequate notice of the date and place of any requested examinations, and a copy of all such notifications must be associated with the claims folder. The veteran is to be advised that failure to report for a scheduled VA examination or examinations without good cause may have an adverse affect on his claims. As regards the requested examinations, all pertinent symptomatology and findings should be reported in detail, and all appropriate studies should be performed. Following completion of the otolaryngologic examination, the examiner should specifically comment as to whether the veteran currently suffers from chronic, clinically-identifiable allergic rhinitis with headaches, and, if so, whether that disability as likely as not had its origin during his period of active military service. Following completion of the orthopedic examination, the examiner should specifically comment as to whether the veteran currently suffers from chronic ankle and/or back disabilities, and, if so, whether those disabilities as likely as not had their origin during the veteran's period of active military service. Finally, following completion of the rectal examination, the examiner should specifically comment as to whether the veteran currently suffers from persistent bleeding with secondary anemia and/or fissures as a result of his service- connected external hemorrhoids. The examiner should, additionally, specifically comment, as to whether, as a result of the veteran's service-connected external hemorrhoids, he experiences any fecal leakage. All such information and opinions, when obtained, should be made a part of the veteran's claims folder. The claims folder and a separate copy of this REMAND must be made available to and reviewed by the examiners prior to completion of the examinations. Moreover, a notation to the effect that this record review took place must be included in the examination reports. 3. Thereafter, the RO should review the veteran's claims for service connection for allergic rhinitis with headaches, a bilateral ankle disability, and muscle strain of the back, as well as his claims for higher initial ratings for service- connected external hemorrhoids. Should the benefits sought on appeal remain denied, the veteran and his representative should be provided with a Supplemental Statement of the Case (SSOC) and an appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome in this case. The veteran need take no action unless otherwise notified. This claim must be afforded expeditious treatment. . See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). ______________________________________________ T. MAINELLI Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs