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