Citation Nr: 0811832 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 05-28 736A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral hip pain claimed as secondary to service-connected residuals of bilateral ankle sprains. 2. Entitlement to service connection for low back pain claimed as secondary to service-connected residuals of bilateral ankle sprains. 3. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for defective hearing. 4. Entitlement to an evaluation in excess of 10 percent for the service-connected residuals of left ankle sprain. 5. Entitlement to an evaluation in excess of 20 percent for the service-connected residuals of laparotomy with lysis of adhesions and revision of McBurney appendectomy scars. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Richmond, Associate Counsel INTRODUCTION The veteran had active military service from February 1980 to January 1986. This matter comes to the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In July 2004, the RO denied entitlement to an evaluation in excess of 10 percent for the service-connected residuals of left ankle sprain and in excess of 10 percent for the service-connected residuals of laparotomy with lysis of adhesions and revision of McBurney appendectomy scars. The RO also denied entitlement to service connection for bilateral hip pain, low back pain, and defective hearing. Service connection for defective hearing was denied on the basis that new and material evidence had not been submitted to reopen a previously denied claim. The RO granted an increased rating of 20 percent for the service-connected residuals of laparotomy with lysis of adhesions and revision of McBurney appendectomy scars in April 2007, effective August 30, 2002. The veteran has not indicated that she is satisfied with this rating. Thus, this claim is still before the Board. AB v. Brown, 6 Vet. App. 35 (1993). On November 7, 2007, this appeal was advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107 and 38 C.F.R. § 20.900(c). In March 2008, the veteran testified before the undersigned Acting Veterans Law Judge at a Board Central Office hearing. A transcript of the hearing is of record. After the case was certified to the Board, the veteran submitted additional medical evidence, but waived RO consideration. It is also worth mentioning that the relevant records are duplicate copies of evidence already considered by the RO. The veteran has a pending claim for entitlement to benefits under 38 U.S.C. § 1151 that she filed in August 2006. She also testified at the March 2008 Board hearing that she filed a claim for service connection for obesity that had not been addressed. Additionally, she mentioned that she had been granted service connection for migraine headaches and assigned a 50 percent evaluation. The last rating decision of record dated in April 2007 does not reflect this rating. These matters are referred to the RO for appropriate action. The issues of service connection for low back pain claimed as secondary to the bilateral ankle disability and the reopened claim of service connection for defective hearing are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The preponderance of the evidence shows no present disability in the bilateral hips. 2. In a February 2003 decision, the RO denied service connection for hearing loss. A notice of disagreement was not received within the subsequent one-year period. 3. Evidence submitted since the RO's February 2003 decision relates to an unestablished fact necessary to substantiate the claim, and therefore raises a reasonable possibility of substantiating the claim. 4. The medical evidence shows that the scars on the abdomen are deep and cause pain and limitation of function, and measure in total 6.04 square inches; range of motion in the torso is full. 5. The medical evidence shows that the left ankle disability is manifested by MRI findings of mild degenerative changes, instability, and no more than moderate limitation of motion, with dorsiflexion most severely limited to 10 degrees and plantar flexion most severely limited to 30 degrees and no additional motion loss after repetitive movement. CONCLUSIONS OF LAW 1. A bilateral hip disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.102, 3.303 (2007). 2. The RO's February 2003 rating decision is final. 38 U.S.C.A. § 7105 (West 2002). 3. New and material evidence has been received since the RO's February 2003 rating decision; the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2007). 4. The criteria for an evaluation in excess of 20 percent for the residuals of laparotomy with lysis of adhesions and revision of McBurney appendectomy scars have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.40, 4.45, 4.59, 4.118, Diagnostic Codes 7801-7805 (2007). 5. The criteria for an evaluation in excess of 10 percent for residuals of left ankle sprain have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). VA must request that the claimant provide any evidence in the claimant's possession that pertains to a claim. 38 C.F.R. § 3.159. The notice requirements apply to all five elements of a service connection claim: 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by letter dated in May 2004 regarding the service connection claim for the hips and the increased rating claim for the left ankle disability. The RO provided the appellant with notice in September 2004, subsequent to the initial adjudication, regarding the increased rating claim from the scars and additional notice with respect to the other claims. Another letter in August 2006, which noted all the claims but specifically addressed the scar claim, provided the notice criteria for Dingess. While most of the notice letters were not provided prior to the initial adjudication, the claimant has had the opportunity to submit additional argument and evidence, and to meaningfully participate in the adjudication process. The claims were subsequently readjudicated in an April 2007 supplemental statement of the case, following the provision of notice. The veteran has not alleged any prejudice as a result of the untimely notification, nor has any been shown. The notification substantially complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; Quartuccio v. Principi, 16 Vet. App. 183 (2002); and Pelegrini v. Principi, 18 Vet. App. 112 (2004), requesting the claimant to provide evidence in her possession that pertains to the claims. The letters did not discuss the criteria necessary to substantiate a secondary service connection claim with respect to the service connection claim for the right hip, secondary to the ankle disabilities. The notice letters also do not discuss all of the criteria for an increased rating claim, pursuant to Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Thus, the VCAA duty to notify has not been satisfied with respect to VA's duty to notify her of the information and evidence necessary to substantiate the claim. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Vazquez- Flores v. Peake, 22 Vet. App. 37 (2008). In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit held that any error by VA in providing the notice required by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial, and that once an error is identified as to any of the four notice elements the burden shifts to VA to demonstrate that the error was not prejudicial to the appellant. The Federal Circuit stated that requiring an appellant to demonstrate prejudice as a result of any notice error is inconsistent with the purposes of both the VCAA and VA's uniquely pro-claimant benefits system. Instead, the Federal Circuit held in Sanders that all VCAA notice errors are presumed prejudicial and require reversal unless VA can show that the error did not affect the essential fairness of the adjudication. To do this, VA must show that the purpose of the notice was not frustrated, such as by demonstrating: (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Although not specifically discussed by the court, some other possible circumstances that could demonstrate that VA error did not prejudice the claimant include where the claimant has stated that he or she has no further evidence to submit, or where the record reflects that VA has obtained all relevant evidence. In this case, the Board finds that any VCAA notice errors did not affect the essential fairness of the adjudication as VA has obtained all relevant evidence, and as the appellant has demonstrated actual knowledge of what was necessary to substantiate the claim. With respect to the service connection claim for the bilateral hip disability to include as secondary to the bilateral ankle disability, the veteran has demonstrated that she understands what is necessary to substantiate a secondary service connection claim for the hip. She has consistently made arguments noting how she believes her present hip pain has been brought on by the ankle disabilities. Thus, even though there is error in the notice for her service connection claim for the hips, this has been rebutted by her actual knowledge of the necessary information in this case. It should also be noted that the medical evidence does not show the presence of a bilateral hip disability in this case; so any additional notice regarding the secondary service connection issue would not help the veteran in substantiating her claim. Regarding, the increased rating claims for the scars and left ankle, a review of the appellant's statements and testimony in May 2007 and March 2008, respectively, as well as the appellant's representative's remarks in May 2007, shows that these submissions were filed subsequent to the August 2005 statement of the case, which listed all of the relevant criteria for increased ratings for the scars and left ankle disability. These submissions discussed the medical findings, to include the demonstrated ranges of motion and functional loss and how the veteran was affected in employment and daily life. The veteran's representative in his May 2007 statement also cited to the general rating schedule and offered an argument for why the left ankle should be rated by analogy under a separate diagnostic code. These actions by the veteran and her representative indicate actual knowledge of the right to submit additional evidence and of the availability of additional process. As both actual knowledge of the veteran's procedural rights, and the evidence necessary to substantiate the claim, have been demonstrated and she, or those acting on her behalf, have had a meaningful opportunity to participate in the development of her claim, the Board finds that no prejudice to the veteran will result from proceeding with adjudication without additional notice or process. Furthermore, as discussed below, it appears that VA has obtained all relevant evidence. Id. VA has obtained service medical records, assisted the veteran in obtaining evidence, afforded the veteran physical examinations, obtained medical opinions as to the etiology and severity of disabilities, and afforded the veteran the opportunity to give testimony before the Board. The veteran was not afforded a VA examination for the hips for the purpose of determining the etiology. As discussed below, however, the medical evidence shows the veteran does not have a present bilateral hip disability. Under these circumstances, the VCAA's duty to assist doctrine does not require that the veteran be afforded medical examination. See Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003) (VA was not required to provide the veteran with a medical examination absent a showing by veteran of a causal connection between the disability and service). In this regard, there is no reasonable possibility that a VA examination would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The veteran testified that although the latest VA examination of record was in October 2006 she had later examinations in 2007 that are not of record that were used to assign her increased evaluations for the ankle, scars, and knee in 2007. An April 2007 rating decision is the latest one of record and reflects the assignment of an increased evaluation for the scars and the grant of service connection for the right ankle and right knee. The rating decision also notes that VA medical records dated from May 2004 to April 2007, which are reflected in the claims file, were relied on to make this determination. The April 2007 rating decision appears to be the same rating decision the veteran refers to in the hearing; and though she is troubled that later examinations in 2007 are not of record, the medical evidence actually goes up to April 2007. Thus, it is reasonable to conclude that the missing evidence she was concerned about regarding her ankle disability is, in fact, of record. Therefore, all known and available records relevant to the issues on appeal have been obtained and associated with the veteran's claims file. VA has substantially complied with the notice and assistance requirements and the veteran is not prejudiced by a decision on the claim at this time. II. Service connection for bilateral hips The veteran seeks service connection for bilateral hip pain, which she asserts is secondary to her service-connected residuals of bilateral ankle sprains. On a December 2003 VA orthopedic consultation report, she indicated that she felt her right hip pain was from hopping, twisting, and falling on the right side because of her ankle twisting. She further testified as to her hip pain being related to falling due to her ankle disabilities during the hearing. Applicable law provides that service connection will be granted if it is shown that the veteran suffered from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). 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 C.F.R. § 3.303(d). Additionally, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a non-service- connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet.App. 439 (1995). Present medical records are negative for a bilateral hip disability. A December 2003 VA orthopedic consultation report shows complaints of pain and findings of some weakness in hip flexion bilaterally. On x-ray examination, however, there was no abnormality demonstrated. There was no evidence of fracture or dislocation, normal mineralization, normal fascial planes, and no evidence of osteolytic or osteoblastic activity. The report also showed normal mineralization and no evidence of osteolytic or osteoblastic activity. The impression was normal examination of both hips. Rheumatology consultation reports dated in March 2004 and December 2004 note that x-ray examination of the hips was normal. An April 2005 VA rheumatology report also notes that x-rays of the hips were unremarkable. Although the objective findings were negative for a hip disability, the veteran continues to report bilateral hip pain. While the veteran's testimony regarding the symptoms in her hips is accepted as competent, the medical evidence does not support the veteran's complaints. Pain alone, without a diagnosed or identifiable underlying condition does not constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Service connection cannot be granted if there is no present disability. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304, 3.306; see Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Chelte v. Brown, 10 Vet. App. 268, 271 (1997). 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). For the same reason, the medical evidence is against the finding of a direct relationship between any present disability and service. The service medical records incidentally are also negative for any injury or treatment for the hip. The veteran's lay assertions do not outweigh the medical evidence of record, which shows that there is no present disability associated with the bilateral hip pain. Absent any objective findings of a hip disability to support the veteran's complaints of pain, service connection must be denied. In other words, there is no identifiable disorder to which the veteran's hip pain has been attributed. Thus, there is no hip disability to service connect. Sanchez- Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Thus, the Board finds that the preponderance of the evidence is against the appellant's claim of service connection for bilateral hip pain, to include as secondary to service- connected ankle disabilities. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed.Cir. 2001). III. New and material evidence The RO originally denied service connection for defective hearing in October 1991 on the basis that the claimed disability was not shown during service. The veteran was notified of this decision, but did not file an appeal. Thus, the October 1991 rating decision is final. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.201, 20.202, 20.302(a). The veteran filed a claim to reopen in October 2002. The RO confirmed the denial in February 2003 finding that the veteran had not submitted new and material evidence to reopen the claim. Within one year of this decision, the veteran submitted a statement dated in November 2003 noting that she was submitting a new claim for hearing loss. Even though this statement was submitted within the required one year time limit for filing a notice of disagreement, since the veteran indicated that she was submitting a new claim for hearing loss and did not mention any disagreement with the February 2003 rating decision or desire for appellate review, the statement does not qualify as a notice of disagreement pursuant to 38 C.F.R. § 20.201. Therefore, the February 2003 decision is final, as well. 38 C.F.R. §§ 20.202, 20.302(a). The November 2003 statement is considered a claim to reopen. Prior unappealed decisions are final. 38 U.S.C.A. § 7105. However, if new and material evidence is presented or secured with respect to a claim that has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a); Manio v. Derwinski, 1 Vet. App. 145 (1991). Under 38 C.F.R. § 3.156(a), new evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence cannot be cumulative or redundant of the evidence already of record when the last final denial of the claim was made, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Evidence considered since the last final decision in February 2003 includes a September 2003 VA medical record noting complaints of hearing loss. The assessment was questionable hearing loss. An October 2003 VA audiological evaluation shows that word recognition scores were excellent 90-100 percent. It is not clear if this means a range between 90 and 100 percent or if the veteran's scores were 90 out of a possible 100 percent. If the word recognition scores are less than 94 percent; then the veteran could have a present hearing loss disability for VA purposes. See 38 C.F.R. § 3.385. The Board finds that this new medical evidence is new and material. The evidence is new because it was not submitted previously, and the RO did not consider it in its previous decision. 38 C.F.R. § 3.156(a). The evidence also is material because it suggests a possible current hearing loss disability, which was not established at the time of the previous rating decision. The veteran also testified in March 2008 that her hearing was worse than previously evaluated. In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). This evidence raises a reasonable possibility of substantiating the service connection claim for bilateral hearing loss. 38 C.F.R. § 3.156(a). Accordingly, the Board finds that the evidence is both new and material and serves to reopen the veteran's claim. The veteran's claim to reopen service connection for defective hearing based on new and material evidence has been considered with respect to VA's duty to notify and assist. Given the favorable outcome noted above with respect to the new and material evidence issue, no conceivable prejudice to the veteran could result from this adjudication. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993). IV. Increased rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt shall be resolved in favor of the claimant, and where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. §§ 3.102, 4.3, 4.7. In addition, the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4 will be considered, whether or not they were raised by the veteran, as well as the entire history of the veteran's disorder in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. Id. Scars The RO originally granted service connection for residuals of laparotomy with lysis of adhesions and revision of McBurney appendectomy scars in October 1991 assigning a 0 percent rating, effective September 5, 1991. In September 2003, the RO increased the disability rating for the scars to 10 percent, effective March 4, 2003. This rating was confirmed in July 2004. In April 2007, the RO granted an increased rating of 20 percent for the scars, effective August 30, 2002. The veteran has not indicated that she is satisfied with this rating. In statements and testimony the veteran has indicated that her scars create a pulling sensation in her abdomen and prevent her from bending and squatting. She also mentioned that her scars are disfiguring and cause her embarrassment. She noted that there was nothing that could be done because surgery to remove the adhesions would create more adhesions. The veteran's residuals of laparotomy with lysis of adhesions and revision of McBurney appendectomy scars are rated under 38 C.F.R. § 4.118, Diagnostic Codes (DC's) 7805-7801. Scars are to be rated based on limitation of function of the affected part under DC 7805. Under DC 7801, scars other than head, face, or neck that are deep or that cause limited motion are rated based on their measurements in square inches or centimeters. The veteran's scars are rated as 20 percent disabling for an area or areas exceeding 12 square inches (77 sq. cm). The next higher 30 percent rating is warranted under DC 7801 for scars that are deep or that cause limited motion and cover an area or areas exceeding 72 square inches (465 sq. cm.) A 40 percent rating is assigned for scars that are deep or that cause limited motion and cover an area or areas exceeding 144 square inches (929 sq. cm.) Note (1): Scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunks, will be separately rated and combined in accordance with section 4.25 of this part. Note (2): A deep scar is one associated with underlying soft tissue damage. An October 2006 VA examination report noted that the veteran had multiple scars on her abdominal area that were associated with pain and limitation of movement in certain positions. She had a transverse scar that measured 7 inches and was hyperpigmented, crooked, tender, and nodular with some keloid formation. There was a 9-inch vertical scar, which also was crooked, tender, nodular, and tender to palpation. There also was a scar that measured 8.5 inches across the umbilicus with similar characteristics of the other scars, crooked, tender, and nodular. The abdomen was disfigured and there was obvious scar tissue overlying the adhesions as evidence of nodular formation with palpation. There seemed to be some underlying soft tissue damage and adherence to underlying tissue. The scars extended into the suprapubic area. The width of each of the above-mentioned scars measured 1/4 inch. The medical evidence shows the veteran's scars are deep and caused limited motion, but they do not measure more than 72 square inches or 465 square centimeters. The specific measurements for the veteran's scars are 1.75 square inches (7 x 0.24 inches), 2.25 square inches (9 x 0.24 inches), and 2.04 square inches (8.5 x 0.24 inches). The total measurement adding all these up is 6.04 square inches. This does not meet the criteria for the higher 30 percent rating under DC 7801. Limitation of function of the affected part, in this case the stomach, is evaluated under DC 7805. The October 2006 VA examination report noted that the veteran was unable to squat and bend over due to the pain on the scars situated on her abdomen. A separate October 2006 VA spine examination report shows flexion of the spine to 90 degrees and extension to 30 degrees, which is considered full range of motion under 38 C.F.R. § 4.71a, Plate V. The examiner also specifically noted that the veteran had no limitation of motion of the spine. While limitation of motion of the spine is not the determinative matter here, the most accurate way to measure limitation of function because of the scars on the abdomen is to measure the range of motion of the torso, particularly since that is one of the veteran's primary complaints. In this case, a rating under the criteria that evaluate limitation of motion of the spine would not warrant a rating higher than already assigned. Importantly, there is no doubt that the veteran's abdominal scars are significant, and cause her pain and pulling; however, the objective findings of functional impairment on examination and the calculated area in square inches does not more nearly approximate the criteria for the next higher, 30 percent rating. In other words, although the impairment as a result of the abdomen scars is significant, it does not meet the criteria for a rating higher than 20 percent based on limited function. The only other skin codes that allow for a rating higher than 20 percent are DC 7800 of disfigurement of the head, face, or neck or DC 7806 for dermatitis or eczema; however, these codes do not apply. The level of impairment because of the scars on the abdomen also has been relatively stable throughout the appeal period. Therefore, the application of staged ratings (i.e., different percentage ratings for different periods of time) is inapplicable. See Hart v. Mansfield, 21 Vet.App. 505 (2007). An extraschedular rating under 38 C.F.R. § 3.321(b)(1) is not appropriate in this case. Referral under 38 C.F.R. § 3.321(b)(1) is warranted where circumstances are presented that are unusual or exceptional. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The veteran noted that she worked in prosthetics and was unable to lift and bend, which was a function of the job. She testified that she has to lift wheelchairs from 35 to 42 pounds and heavy boxes noting that she is a supply technician/inventory manager purchasing agent. While the veteran's scars would undoubtedly affect her employability, particularly if she has to exert herself physically on the job, the record does not expressly show any evidence of marked interference with employment solely due to the abdomen scars. The record also does not show that the veteran is incapable of working at a non-physical job. Additionally, the evidence does not show any frequent periods of hospitalization due to the abdomen scars. 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. The veteran's disability picture is not so unusual or exceptional in nature so as to warrant referral of her case to the Director or Under Secretary for review for consideration of extraschedular evaluation. Having reviewed the record with these mandates in mind, there is no basis for further action on this question. The preponderance of the evidence is against an evaluation in excess of 20 percent for residuals of laparotomy with lysis of adhesions and revision of McBurney appendectomy scars; there is no doubt to be resolved; and an increased rating is not warranted. Left ankle The RO originally granted service connection for residuals of left ankle sprain in February 2003 assigning a 10 percent evaluation, effective October 21, 2002. The veteran filed an increased rating claim in November 2003 asserting that she had an increase in twisting and swelling in her ankle, which caused her to fall constantly. The veteran's left ankle disability is rated under 38 C.F.R. § 4.71a, DC's 5299-5271. DC 5299 is used to identify musculoskeletal system disabilities that are not specifically listed in the Rating Schedule, but are rated by analogy to similar disabilities under the Rating Schedule. See 38 C.F.R. §§ 4.20, 4.27. DC 5271 evaluates limitation of motion in the ankle. Moderate limitation of motion warrants a 10 percent rating. Marked limitation of motion warrants a 20 percent rating. The average normal range of motion in the ankle is 0 to 20 degrees of ankle dorsiflexion and 0 to 45 degrees of ankle plantar flexion. See 38 C.F.R. § 4.71a, Plate II. A January 2003 VA examination report shows dorsiflexion in the left ankle was to 20 degrees and plantar flexion was to 30 degrees. The examiner noted the veteran sometimes had sudden severe pain in the ankle, which caused a decrease in functional capacities; but the examiner was unable to state to what degree. A December 2003 VA progress note shows complaints of decreased motion in the left ankle. An October 2006 VA examination report shows dorsiflexion of 10 degrees in the left ankle and plantar flexion to 40 degrees with pain in the last few degrees of motion. Repetitive motion in the ankles showed no limitation of motion due to pain, weakness, fatigue, or lack of endurance or incoordination. These findings do not more closely approximate the criteria for marked limitation of motion in the ankle. The most severe finding is the 10 degrees of dorsiflexion reported in October 2006, which according to 38 C.F.R. § 4.71a, Plate II, is approximately half-way between what is normal range of motion. The plantar flexion finding of 30 degrees in January 2003 also is significant, but is more than half-way past the mid point in what is considered normal. Overall, the ranges of motion in the left ankle more closely resemble moderate limitation of motion. See 38 C.F.R. § 4.7. The veteran's representative argues that the veteran should be rated higher under DC 5262 for impairment of the tibia and fibula with marked knee or ankle disability. This diagnostic code primarily addresses knee disabilities, rather than the ankle. Moreover, impairment under DC 5262 refers to malunion or nonunion of the tibia and fibula, neither of which is demonstrated in this case. To the extent that the ankle is involved, as discussed above, the ankle disability is manifested by no more than moderate limited motion. Therefore, regardless, a higher rating would not be warranted under DC 5262 based on impairment in the ankle. The other diagnostic codes addressing the ankle allow for the assignment of a higher rating for ankylosis in the ankle (DC 5270), ankylosis of the subastragalar or tarsal joint (DC 5272), malunion of the os calcis or astragalus (DC 5273), or for an astragalectomy (DC 5274). Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 28th edition, p. 86. As mentioned, the veteran has motion in her ankle; so ankylosis of the ankle joint is not shown. There is no evidence of any astragalectomy (excision of the astragalus, Dorland's at p. 152). There also is no evidence of any malunion in the ankle joint. The veteran has complaints of instability in the left ankle that are noted throughout the record. A January 2005 VA medical record shows an assessment of ankle pain, most likely due to hypermobility syndrome and ligament tendon injury when she had the fractures, which are causing ankle instability. The veteran reportedly was using orthotics, which helped with the instability. Instability is not shown to be due to any malunion in the ankle, however. A May 2004 VA magnetic resonance imaging (MRI) report shows fairly prominent hypertrophic changes in the tarsal bones and mild degenerative changes in the ankle joint, but there are no findings of malunion. Degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200, etc). In this case, the May 2004 MRI report shows mild degenerative changes in the ankle; however, the veteran already has been rated for limitation of motion of the ankle under DC 5271. To assign a separate rating for limitation of motion in the ankle due to degenerative arthritis would be rating the same disability twice, which is not permitted under the regulations. See 38 C.F.R. § 4.14. The Board has considered the overall disability picture regarding functional impairment attributable to pain as outlined in 38 C.F.R. §§ 4.40 and 4.5. See also, DeLuca v. Brown, 8 Vet. App. 202 (1995). However, the October 2006 examiner specifically found no additional limitation of motion in the left ankle after repetitive movement due to pain, weakness, fatigue, or lack of endurance or incoordination. Thus, the Board finds the 10 percent rating adequately compensates any potential functional loss due to pain on use or during potential flare-ups, or due to weakness, fatigability, or lack of endurance. The level of impairment in the left ankle has been relatively stable throughout the appeals period. Therefore, the application of staged ratings (i.e., different percentage ratings for different periods of time) is inapplicable. See Hart v. Mansfield, 21 Vet.App. 505 (2007). An extraschedular rating under 38 C.F.R. § 3.321(b)(1) also is not appropriate in this case. Referral under 38 C.F.R. § 3.321(b)(1) is warranted where circumstances are presented that are unusual or exceptional. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The evidence does not show any marked interference with employment or frequent periods of hospitalization due to the left ankle disability. 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. The veteran's disability picture is not so unusual or exceptional in nature so as to warrant referral of her case to the Director or Under Secretary for review for consideration of extraschedular evaluation. Having reviewed the record with these mandates in mind, there is no basis for further action on this question. The preponderance of the evidence is against an evaluation in excess of 10 percent for residuals of left ankle sprain; there is no doubt to be resolved; and an increased rating is not warranted. ORDER Entitlement to service connection for bilateral hip pain claimed as secondary to service-connected residuals of bilateral ankle sprains is denied. New and material evidence has been submitted to reopen a claim for entitlement to service connection for defective hearing and to this extent only, the claim is granted. Entitlement to an evaluation in excess of 20 percent for residuals of laparotomy with lysis of adhesions and revision of McBurney appendectomy scars is denied. Entitlement to an evaluation in excess of 10 percent for residuals of left ankle sprain is denied. REMAND Additional development is necessary before the service connection claim for defective hearing can be resolved. Specifically it is not clear whether the veteran has a present hearing loss disability for VA purposes. For the purposes of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies at 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of those frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Even though disabling hearing loss is not demonstrated at separation, a veteran may, nevertheless, establish service connection for a current hearing disability by submitting evidence that a current disability is related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). An October 2003 VA audiological evaluation shows that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 15 20 20 LEFT 25 15 20 20 25 This does not satisfy the regulations for a present hearing loss disability. However, the word recognition scores were noted to be excellent 90-100 percent. It is not clear if this means a range between 90 and 100 percent or if the veteran's scores were 90 out of a possible 100 percent, or some other possibility. If speech recognition scores are below 94 percent, then the veteran will be considered to have a hearing loss disability under 38 C.F.R. § 3.385. Therefore, this discrepancy needs to be resolved. Moreover, if the veteran is shown to have a present hearing loss disability, a medical opinion should be provided to determine whether this disability is related to the veteran's service. Regarding the service connection claim for the back disability, the veteran contends that her present back disability is related to her service-connected ankle disabilities. She testified that her ankle disabilities cause her to fall, which in turn causes pain in her back. An October 2006 VA examiner found that although the veteran claimed she fell on her back twice in 1998 and 2003 as a result of twisting her ankle, the examiner could not give a definitive opinion as to whether the back pain was secondary to her left ankle sprain without resorting to speculation. The veteran should be afforded another examination so that an opinion can be provided on the etiology of the back disability. The veteran has since been service-connected for a right ankle disability in addition to the left; so this should be considered in the opinion, as well. The opinion also should address whether the current back disability is directly related to the veteran's service. The service medical records document multiple complaints of low back pain from 1981 to 1984. A March 1982 medical record notes complaints of back pain around the waist line area times two months without history of trauma. On objective evaluation, there was mild tenderness in the lumbar area. A November 1983 medical record notes previous lumbar muscular type back pain not related to abdominal pain. It was noted that the lumbar back pain was mechanical with or without activity. After service, a February 1995 VA medical record shows complaints of back pain. A January 2005 VA x-ray examination report shows minimal degenerative changes in the lumbar spine. An October 2006 VA examination report also shows a diagnosis of chronic strain with minimal degenerative arthritis in the lumbosacral spine. Additional factors to be considered include previous medical records documenting a possible intercurrent injury to the spine. A February 1989 emergency room record notes that the veteran had complaints of back pain status post motor vehicle accident; but on objective evaluation, the spine was nontender to percussion. A separate February 1989 medical record shows a diagnosis of questionable thoracic outlet syndrome. Accordingly, the case is REMANDED for the following action: 1. Schedule the veteran for a VA audiological examination to determine whether the veteran has a present hearing loss disability. If she does, the examiner should provide an opinion on whether the present hearing loss disability is at least as likely as not related to her service. Note: For VA purposes, impaired hearing will not be considered to be a disability unless the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The claims folder must be made available to the examiner for review in conjunction with the examination. The examiner must provide a detailed rationale for all opinions. 2. Schedule the veteran for a VA orthopedic examination to determine the following: (a) Whether the veteran's present lumbosacral spine disability is at least as likely as not related to her service- connected bilateral ankle disability. In making this assessment, the examiner should also address whether the bilateral ankle disability aggravated the lumbar spine disability beyond its normal progress. (b) Whether the veteran's present lumbosacral spine disability is at least as likely as not related to the veteran's service. The examiner should specifically address the above-mentioned complaints of back pain in service and the post-service evidence, as well. The claims folder must be made available to the examiner for review in conjunction with the examination. The examiner must provide a detailed rationale for all opinions. 3. Thereafter, if necessary, any additional development deemed appropriate should be accomplished. Then re- adjudicate the claims. If the claims remain denied, issue a supplemental statement of the case (SSOC) and allow an appropriate period of time for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ L. B. CRYAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs