Citation Nr: 0810945 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 04-30 336 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an increased rating for a fracture of the right malleolus, currently assigned a 20 percent evaluation. 2. Entitlement to an increased (compensable) evaluation for hemorrhoids. 3. Entitlement to an increased (compensable) evaluation for a scar of the right thigh. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The veteran had active service from January 1968 to January 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) rating decision of December 2003, which denied increased ratings for post- traumatic stress disorder (PTSD), a gunshot wound of the left calf, a gunshot wound of the left foot, a fracture of the right malleolus, hemorrhoids, and a scar of the right thigh, as well as a total disability based on individual unemployability (TDIU) rating. After the appeal as to these issues was perfected, in a March 2005 Decision Review Officer (DRO) decision, the RO granted a 100 percent rating for PTSD, effective the date of receipt of the TDIU claim, in April 2003. This decision constituted a complete grant of the benefit sought as to the rating for PTSD, and rendered the TDIU issue moot. See 38 C.F.R. § 4.16(a) (2007) (total disability ratings for compensation may be assigned, where the schedule rating is less than total, and the individual is unemployable due to service-connected disabilities). In a July 2007 DRO decision, the RO granted a 30 percent rating for gunshot wound of the left calf. This, in combination with the 10 percent rating already in effect for the left foot wound, represents the maximum rating for those conditions, under the amputation rule. See 38 C.F.R. § 4.68 (2007). Therefore, the issues of entitlement to increased ratings for PTSD, left calf and foot injuries, and to a TDIU rating have been fully resolved in the veteran's favor, and are no longer on appeal. In the July 2007 DRO decision, the RO also increased the rating for the right malleolus fracture to 20 percent. Because a higher rating is possible for an ankle condition, and that issue remains on appeal, as a grant of less than the maximum available rating does not terminate the appeal, unless the veteran expressly states he is satisfied with the assigned rating. See AB v. Brown, 6 Vet. App. 35, 38 (1993). FINDINGS OF FACT 1. A fracture of the right malleolus is manifested by swelling and limitation of motion; there is no ankylosis. 2. Hemorrhoids are not more than moderate; they have not been shown to be large or thrombotic, irreducible, or with excessive redundant tissue. Hemorrhoids have not been suggested as a possible etiology in the veteran's anemia. 3. A scar of the right thigh is stable, superficial, 1 inch in circumference, and non-tender. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 20 percent for fracture of the right malleolus have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.71a, Diagnostic Code 5271 (2007). 2. The criteria for a compensable rating for hemorrhoids have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.71a, Diagnostic Code 7336 (2007). 3. The criteria for a compensable rating for a scar of the right thigh have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.71a, Diagnostic Code 7805 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2005)), imposes obligations on VA in terms of its duties to notify and assist claimants. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). For an increased compensation claim, the veteran must be notified that he or she must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. Vazquez- Flores v. Peake, No. 05-0355 (Jan. 30, 2008). In this case the veteran was provided a letter in November 2004, which informed him that in order for an increased rating, evidence must show his condition had become worse. The RO advised the claimant of his and VA's respective duties for obtaining different types of evidence, and told him to provide any relevant evidence in his possession. The notice also provided examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., treatment records, Social Security Administration (SSA) determinations, statements from employers, or statements discussing his disability symptoms from people who had witnessed how they affected him. In March 2006, he was provided information regarding assigned ratings and effective dates. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). He was told that a disability rating was assigned for service-connected disabilities, under a rating schedule, and that the rating could change if the condition changed. He was told that a disability rating will be determined under the rating schedule, with ratings ranging from 0 percent to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment. Thus, cumulatively, the veteran was informed of the necessity of providing on his/her own or by VA, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Subsequent to the notification letters, his claim was readjudicated in a July 2007 supplemental statement of the case. Thus, the timing defect was cured by a subsequent readjudication. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). He was also provided with the specific criteria for the various ratings in the October 2004 statement of the case and the July 2007 supplemental statement of the case. Thus, the duty to notify has been satisfied. As to the duty to assist, the veteran's pertinent medical records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. There is no objective evidence indicating that there has been a material change in the service-connected disorder(s) since the claimant was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95. The VA examinations were thorough and supported by VA outpatient treatment records. The examination in this case is adequate upon which to base a decision. The records satisfy 38 C.F.R. § 3.326. Thus, the Board finds that all necessary notification and development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Significantly, neither the appellant 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 claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A § 1155; 38 C.F.R. Part 4. Although the disability must be considered in the context of the whole recorded history, including service medical records, the present level of disability is of primary concern in determining the current rating to be assigned. See 38 C.F.R. § 4.2 (2007); Francisco v. Brown, 7 Vet. App. 55 (1994); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). If the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending, staged ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). A. Right Malleolus Fracture Service connection for a right ankle fracture was granted in an August 1970 rating decision. On a VA examination in August 2003, X-rays of the right ankle disclosed osteopenia, minor soft tissue swelling surrounding the lateral malleolus, and calcaneal enthesophyte formation. The diagnosis was degenerative joint disease of the right ankle, status post fracture. Moderate limitation of motion of the ankle warrants a 10 percent rating, and marked limitation of motion of the ankle warrants a 20 percent rating. 38 C.F.R. § 4.71a, Code 5271. The veteran is currently in receipt of a 20 percent rating for his right ankle fracture residuals, which is the highest rating provided based on limitation of motion of the ankle. Higher ratings are provided for certain positions of ankylosis of an ankle, including a 30 percent rating when the ankle is ankylosed in plantar flexion between 30 degrees and 40 degrees, or in dorsiflexion between 0 and 10 degrees. 38 C.F.R. § 4.71a, Code 5270. A VA examination was performed in May 2007. The veteran reported a constant residual aching sensation and weakness and deformity in the right ankle, as well as a hot sensation within the right ankle. Examination revealed decreased range of motion. He had dorsiflexion to 10 degrees, plantar flexion to 10 degrees, and inversion and eversion were each to 5 degrees. The assessment was history of fracture of the right ankle joint with residual decreased range of motion and soft tissue swelling as well as calcaneal spur. Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Colayong v. West, 12 Vet App 524 (1999) (citing Dorland's Illustrated Medical Dictionary 86 (28th Ed. 1994). Although the veteran has limitation of motion in the ankle, the joint is not immobilized, and ankylosis has not been shown. Moreover, as he is in receipt of the maximum rating based on limitation of motion, a higher rating may not be assigned for functional impairment, under that diagnostic code. See Johnston v. Brown, 10 Vet. App. 80 (1997). Nevertheless, the VA examination specifically noted that there was no additional limitation of motion on repetitive testing due to weakness or fatigue or lack of endurance in the ankle joints. VA treatment records dated from 2002 to 2007 show that in August 2004 the veteran complained of ankle pain. In July 2006, the veteran's right ankle was noted to be mildly swollen, which the veteran said was from previous injury and surgery. These records do not indicate symptoms beyond the marked limitation of motion contemplated by the 20 percent rating currently in effect. In view of these factors, the preponderance of the evidence is against the claim for an increased rating, and the symptoms present do not more closely approximate the criteria for the higher rating. Accordingly, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Hemorrhoids The veteran's service-connected hemorrhoids have been rated noncompensable by the RO under the provisions of Diagnostic Code 7336. Under 38 C.F.R. § 4.114, Diagnostic Code 7336, a noncompensable rating is assigned for mild or moderate hemorrhoids. A 10 percent rating is warranted for hemorrhoids that are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences. A 20 percent evaluation is warranted when there is persistent bleeding and secondary anemia, or with fissures. On a VA examination in August 2003, the veteran denied having any problems with hemorrhoids. However, on the May 2007 VA examination, the veteran reported that he had frequent bleeding and pain and a constant burning sensation. He said he had had multiple rectal examinations, and that he had been scheduled for a colonoscopy, but he was unable to go through with it due to neck pain. The assessment was hemorrhoids with recurrent rectal bleeding. Neither of these examinations, performed in August 2003 or May 2007 contained any objective findings as to the presence of hemorrhoids but rather recorded subjective complaints. While the examiner in 2007 concluded that the veteran had hemorrhoids with recurrent rectal bleeding, he did not report any actual examination findings. The Board is not obliged to accept an opinion based on inaccurate medical history. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005). The VA medical records dated from 2003 to 2007 do not bear out the veteran's history of multiple rectal examinations, or of bleeding hemorrhoids. In this regard, VA treatment records dated from 2003 to 2007 show that in August 2005, the veteran was noted to be anemic. Tests including computerized tomography (CT) scans to rule out mass lesions in the abdomen and pelvis, as well as a gastrointestinal consult to evaluate for inflammatory bowel disease, were recommended. In October 2005, he failed to report for his gastroenterology appointment, and it was noted that he should reschedule to see if upper gastrointestinal endoscopy and colonoscopy could be done. In April 2007 he was hospitalized, due to the severity of his anemia. He was noted to be under work-up to rule out a gastrointestinal cause of possible blood loss. Except for complaints of abdominal pain and history of reflux esophagitis, he declined having many gastrointestinal symptoms. Rectal examination showed non-inflamed hemorrhoids. There is no indication in any of these records that hemorrhoids were considered as a possible cause of the veteran's anemia. Moreover, on the only occasion on which rectal examination findings were reported, he was noted to have non-inflamed hemorrhoids. Thus, the medical evidence does not show the presence of hemorrhoids that are more than moderate. Hemorrhoids have not been shown to be large or thrombotic, irreducible, with excessive redundant tissue. There is no competent evidence indicating that hemorrhoids were considered as an etiology of the veteran's anemia. Thus, the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is inapplicable, and the claim must be denied. 38 U.S.C. § 5107(b); see Ortiz, supra; Gilbert, supra. C. Right Thigh Scar On a VA examination in August 2003, the veteran had a 2-cm scar on the right leg, which was non-tender to palpation. There was no inflammation, edema, or keloid formation. The scar was hypopigmented compared to normal areas of skin. There was no limitation of motion caused by the scar. On the May 2007 VA examination, the veteran denied any residuals symptoms from the right thigh scar. Examination disclosed a scar measuring 1 inch in circumference, about the size of a quarter, on the anteromedial aspect of the lower third of the right thigh. The scar was hypopigmented, superficial, stable, regular, with no inflammation, edema, keloid formation, limitation of motion, limitation of function, inflexibility of the skin, or induration of the skin. It was not tender to touch. The assessment was scar on the right thigh without any residual defects. VA treatment records dated from 2003 to 2007 do not show complaints involving the right thigh scar. The veteran's scar was described as superficial on the most recent VA examination, and there is no evidence indicating otherwise. A superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7802. A 10 percent rating may be assigned for scars which are superficial and unstable. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118, Diagnostic Code 7803. A 10 percent rating is assigned for scars which are superficial and painful on examination. 38 C.F.R. § 4.118, Diagnostic Code 7804. Scars may also be rated based on limitation of function of the affected part. 38 C.F.R. § 4.118, Diagnostic Code 7805. Scars that are superficial and that do not cause limited motion warrant a 10 percent rating for area or areas of 144 square inches (929 sq. cm.) or greater. 38 C.F.R. § 4.118, Diagnostic Code 7801. As the veteran's 1-inch scar has been shown to be stable and non-tender, with no limitation of function, a compensable rating is not warranted. Thus, the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is inapplicable, and the claim must be denied. 38 U.S.C. § 5107(b); see Ortiz, supra; Gilbert, supra. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an evaluation in excess of 20 percent for fracture of the right malleolus is denied. Entitlement to a compensable rating for hemorrhoids is denied. Entitlement to a compensable rating for scar of the right thigh is denied. ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs