Citation Nr: 0814030 Decision Date: 04/29/08 Archive Date: 05/08/08 DOCKET NO. 05-29 715 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial evaluation for foreign body and accidental stab wound of the right thigh (right thigh scars). 2. Entitlement to a higher initial evaluation for herniated nucleus pulposus of thoracic spine at T7 and T8. 3. Entitlement to service connection for bronchial asthma. 4. Entitlement to service connection for residuals of status post two fractures of the right clavicle. 5. Entitlement to service connection for a left ankle disorder. 6. Entitlement to service connection for a right ankle disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Robert J. Burriesci, Associate Counsel INTRODUCTION The veteran served on active duty from November 1982 to March 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In a March 2006 rating decision, the RO increased the evaluation of the veteran's service-connected herniated nucleus pulposus of the thoracic spine at T7-8 to 10 percent, effective February 2, 2006 (not the original date of claim April 1, 2004). As the veteran has not been granted the maximum benefit allowed, the veteran is presumed to be seeking a 100 percent evaluation and the claims are still active. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The issues of entitlement to service connection for bronchial asthma is 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 medical evidence shows that the thigh scar is not manifested by disfigurement, adherence, tenderness upon examination, instability, or any orthopedic impairment. 2. Prior to and as of February 2, 2006, the veteran's low back disability has not manifested by incapacitating episodes of intervertebral disc disease requiring bed rest prescribed by a physician. The veteran does not have forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; a combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height 3. The veteran does not have current residuals of status post two fractures of the right clavicle. 4. The veteran's left ankle disorder is related to active service. 5. The veteran does not have a current right ankle disorder. CONCLUSIONS OF LAW 1. The criteria for a compensable evaluation for the veteran's service-connected thigh scar have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.118, Diagnostic Codes 7801, 7802, 7803, 7804, 7805 (2007). 2. The criteria for an evaluation in excess of 0 percent prior to February 2, 2006, and in excess of 10 percent as of February 2, 2006 for herniated nucleus pulposus of thoracic spine at T7 and T8 have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.321, 4.1-4.14, 4.40-4.46, 4.71a, Diagnostic Code 5243 (2007). 3. Residuals of status post two fractures of the right clavicle were not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.102, 3.303 (2007). 4. A left ankle disorder was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.102, 3.303 (2007). 5. A right ankle disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.102, 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Increased Rating Claims The veteran seeks entitlement to an initial compensable evaluation for foreign body and accidental stab wound of the right thigh (right thigh scars) and entitlement to a higher initial evaluation for herniated nucleus pulposus of thoracic spine at T7 and T8, currently evaluated as 10 percent disabling. Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. See 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. See 38 C.F.R. § 4.3. The veteran's entire history is reviewed when making disability evaluations. See 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). Before proceeding with its analysis of the veteran's claims, the Board finds that some discussion of the Fenderson case is warranted. In that case, the Court noted the distinction between a new claim for an increased evaluation of a service- connected disability and a case in which the veteran expresses dissatisfaction with the assignment of an initial disability evaluation where the disability in question has just been service-connected. In the former case, the Court held in Francisco v. Brown, 7 Vet. App. 55, 58 (1994), that the current level of disability is of primary importance. In the latter case, where, as here, the veteran has expressed dissatisfaction with the assignment of an initial rating, the VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim-a practice known as "staged rating." When evaluating joint disabilities rated on the basis of limitation of motion, VA may consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2007); DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. 38 C.F.R. § 4.14 (2007). Notwithstanding the above, VA is required to provide separate evaluations for separate manifestations of the same disability that are not duplicative or overlapping. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994). In addition, the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as the veteran's relevant medical history, his current diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). A. Foreign Body and Accidental Stab Wound of the Right Thigh In a February 2005 rating decision, the RO granted service connection for foreign body and accidental stab wound of the right thigh. A noncompensable disability rating was assigned effective April 1, 2004 pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7805. Diagnostic Code 7802 provides ratings for scars, other than the head, face, or neck, that are superficial or that do not cause limited motion. Superficial scars that do not cause limited motion, in an area or areas of 144 square inches (929 sq. cm.) or greater, are rated 10 percent disabling. Note (1) to Diagnostic Code 7802 provides that scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25. Note (2) provides that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118. Diagnostic Code 7803 provides a 10 percent rating for superficial unstable scars. Note (1) to Diagnostic Code 7803 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118. Diagnostic Code 7804 provides a 10 percent rating for superficial scars that are painful on examination. Note (1) to Diagnostic Code 7804 provides that a superficial scar is one not associated with underlying soft tissue damage. Note (2) provides that a 10-percent rating will be assigned for a scar on the tip of a finger or toe even though amputation of the part would not warrant a compensable rating. 38 C.F.R. § 4.118. Diagnostic Code 7804 also directs the rater to see 38 C.F.R. § 4.68 (amputation rule). 38 C.F.R. § 4.118. Diagnostic Code 7805 provides that other scars are to be rated on limitation of function of affected part. 38 C.F.R. § 4.118. The veteran was afforded a VA Compensation and Pension (C&P) examination in conjunction with his claim in January 2005. The veteran reported that he had two right leg injuries in 1986. First, the veteran was opening a can with a knife and inadvertently stabbed himself in the right thigh, medial portion, mid area. The laceration was repaired but had to be reopened later and allowed to heal secondarily. The examiner found a transverse scar that is four centimeters by one centimeter, "completely healed with no symptoms and no disability." The examiner rendered the opinion that the scar is well healed, with a slight depression underneath, and "quite healthy." Second, a tiny piece of metal entered the veteran's thigh nine centimeters above the veteran's knee joint as the veteran used a hand axe to cut items including metal. The examiner found that the piece of metal remains indwelling in front of the mid portion of the right femur. The examiner indicated that there were no symptoms and no disability. The examiner rendered the opinion that scar measures three millimeters and is very hard to see and that there were no symptoms or disability associated with the scar. In February 2006, the veteran was afforded a VA C&P scars examination in conjunction with his claim. The examiner found the first scar to be 40 millimeters by 10 millimeters. The examiner noted that the scar was without pain on examination, dos not adhere to the underlying tissue, does not breakdown or ulcerate, and does not involve the head, face, or neck. The examiner found that the scar does not limit the function of the quadriceps muscle. The examiner found the second scar to be five millimeters by 5 millimeters. The examiner noted that the scare was not painful, not adherent to the underlying tissue, not unstable, and does not involve the head, face, or neck. The examiner found that the scar does not impair the function of the vastus medialis muscle. The Board finds that the preponderance of the evidence is against the veteran's claim for a compensable disability rating for right thigh scars. The scars are not deep nor do they limit the motion or other function of the left leg. In addition, they do not cover an area of 144 square inches, are not painful on examination, and are not unstable or adhered to underlying tissue. The medical evidence fails to show that the veteran's right thigh scars meet the criteria for a compensable rating under any applicable diagnostic code. The preponderance of the evidence being against the veteran's claim, the benefit of the doubt doctrine is not applicable. Consequently, the veteran's claim must be denied. B. Herniated Nucleus Pulposus of Thoracic Spine at T7-8 The veteran's herniated nucleus pulposus of thoracic spine at T7 and T8 is rated as 10 percent disabling, under Diagnostic Code 5243. Diagnostic Code 5243 (effective September 26, 2003) provides that intervertebral disc syndrome (IVDS) is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent disability rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent disability rating is assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (effective September 26, 2003) provides a 10 percent disability rating for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Note (1) to Diagnostic Code 5243 (effective September 26, 2003) provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2) provides that, if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment is to be rated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. See also Plate V, 38 C.F.R. § 4.71a. In December 2004, the veteran underwent a magnetic resonance imaging (MRI) scan of the spine. The scan found a far left lateral disc protrusion at T7-8 measuring as great as three millimeters, which impressed the anterior thecal sac with no contact to the cord. The vertebral body height and disc spaces were maintained and the signal of the marrow and the cord were normal. The MRI did not reveal large herniation or central spinal canal stenosis and there was no impingement upon the exiting neural elements. In January 2005, the veteran was afforded a VA C&P examination in conjunction with his claim. The veteran reported midline back pain at the mid-thoracic levels 7 and 8. After examining the veteran the examiner rendered the opinion that the veteran had bilateral protrusion and tear of the spinal disc, thoracic 7-8 level, with extrusion of the nuclear pulposis. The examiner opined that the condition was not due to any specific remembered injury but was due to years of strenuous heavy-duty construction. The examiner found no ongoing pain and noted that the veteran is able to walk unassisted. The veteran's usual occupation was not found to be affected by the condition. In February 2006, the veteran was afforded another VA C&P examination in conjunction with his claim. The veteran did not describe any numbness, weakness, bowel or bladder complaints. The veteran had a normal gait and did not use any assistive devices. The veteran indicated that he had missed eight days of work in the past 12 months due to back pain. The veteran indicated no additional limitations with repetitive use, in incoordination or fatigue on back function, and no incapacitating episodes within the prior 12 months. Upon examination, the veteran's back was found to have a forward flexion from 0 to 90 degrees, without pain, extension from 0 to 30 degrees, without pain, right lateral rotation of 0 to 30 degrees, without pain, left lateral rotation of 0 to 30 degrees with pain at 30 degrees, and right and left lateral flexion of 0 to 30 degrees without pain. In this respect, the Board notes that the veteran's ranges of motion, as reported at this time, do not even meet the criteria required for the already awarded 10 percent rating. Furthermore, the examiner noted that the veteran was tender in the intrascapular region at approximately the level of T7. The examiner found no muscle spasm. Straight leg raising test was negative to 90 degrees in the sitting position. Motor strength was found to be 5/5 in both lower extremities, in all muscle groups and reflexes were 2+ in the knee and ankle jerks bilaterally. The examiner rendered the opinion that the veteran had MRI documented T7-8 herniated nucleus pulposus of mild to moderate disability. The Board finds that the veteran's herniated nucleus pulposus of thoracic spine at T7 and T8 warrants no more than 0 percent prior to February 2, 2006, and no more than 10 percent as of February 2, 2006. Simply put, prior to and as of February 2, 2006, the veteran's low back disability is not manifested by incapacitating episodes of intervertebral disc disease requiring bed rest prescribed by a physician. The veteran does not have forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; a combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height In reaching this determination, the Board notes that the veteran's range of motion findings obtained at the February 2006 VA examination were normal and reflect no limitation. The veteran has not had any incapacitating episodes. The medical evidence fails to show that the veteran's herniated nucleus pulposus of thoracic spine at T7 and T8 meets the criteria for a rating in excess of 0 percent prior to February 2006, or in excess of 10 percent as of February 2006 under the applicable diagnostic codes. Considering the DeLuca factors, the veteran's condition warrants no higher than the ratings already assigned. The veteran's condition was reported to manifest pain at the extreme of range of motion in left lateral rotation. Range of motions tests did not reveal any pain on motion in any other direction and did not show any fatigue, reduced range of motion, or pain upon repetitive motion. The preponderance of the evidence being against the veteran's claim, the benefit of the doubt doctrine is not applicable. Consequently, the veteran's claim must be denied. C. Extraschedular The Board finds that this matter need not be remanded to have the RO refer the veteran's claim to the Under Secretary for Benefits or to the Director of the Compensation and Pension Service, pursuant to 38 C.F.R. § 3.321(b), for assignment of an extraschedular rating. The Board notes the above determination is based on application of pertinent provisions of the VA's Schedule for Rating Disabilities, and there is no showing that the veteran's right thigh scars and herniated nucleus pulposus of thoracic spine at T7 and T8 reflect so exceptional or so unusual a disability picture as to warrant the assignment of a compensable evaluation on an extraschedular basis, and indeed, neither the veteran nor his representative have identified any exceptional or unusual disability factors. See 38 C.F.R. § 3.321. In this regard, the Board observes that there is no showing the disability results in marked interference with employment. Moreover, his right thigh scars and herniated nucleus pulposus of thoracic spine at T7 and T8 have not required any, let alone, frequent periods of hospitalization, or otherwise rendered impractical the application of the regular schedular standards. In the absence of evidence of these factors, the criteria for submission for assignment of an extraschedular rating are not met. Thus, a remand this claim to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) is not necessary. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). II. Service Connection Claims Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 101(16), 1110, 1131, 1137; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). In addition, service connection may 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). Generally, to establish service connection, there must be (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in- service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The Court of Appeals for Veterans Claims (Court) has also held that where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Federal Circuit has also recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. Residuals of Status Post Two Fractures of the Right Clavicle The veteran seeks service connection for the residuals of status post two fractures of the right clavicle. The veteran's SMRs reveal that the veteran was treated for a fracture of the right clavicle in December 1983. The veteran was afforded a VA C&P examination in conjunction with this claim in January 2005. Upon examination the veteran was found to have completely normal range in abduction, extension, posterior, and anterior flexion in both shoulders. The examiner noted that there was no limitation of strength in either shoulder. The Board finds that the preponderance of the evidence is against entitlement to service connection for residuals of status post two fractures of the right clavicle. As indicated above, service medical records reveal that the veteran was treated for the fracture of a the right clavicle in service.; however, more significantly, there is no medical evidence that the veteran currently has any residuals of the fractures of the right clavicle as evidenced by the VA examination performed in January 2005. In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143- 44 (1992). In Brammer, the United States Court of Appeals for Veterans Claims (Court) stated that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability." Brammer, 3 Vet. App. at 225. The Court further stated that where the proof is insufficient to establish a present disability there could be no valid claim for service connection. Id. As is noted above, the veteran asserts that he is entitled to service connection for residuals of status post two fractures of the right clavicle; however, there is no medical evidence of record, which establishes that the veteran currently has a right clavicle disability. Under these facts, a "disability" for VA compensation benefit purposes is not shown to be present in this case. In the absence of a current disability, as defined by governing law, the claim must be denied. B. Left Ankle Disorder The veteran seeks service connection for a left ankle disorder. The veteran's SMRs reveal that the veteran was treated for complaints of left ankle pain in January and December 1982, an inversion injury to the left ankle in March 1991, and a sprained left ankle in March 1998. The veteran was afforded a VA C&P examination in conjunction with his claim in January 2005. The veteran reported that he injured his left ankle in service while playing basketball. The veteran indicated that it was not diagnosed with a fracture, but rather, a tear in the lateral collateral triangular ligament area of the left ankle. He stated that he was provided with a removable boot and ace bandages were wrapped around the ankle. The veteran reported that he now has mild varus instability of the left ankle. After examining the veteran, the examiner found no need for an assistive device, with no effect on the veteran's usual occupation, and no effect on the veteran's daily activities. The examiner noted that both ankles revealed dorsiflexion to 25 degrees and plantar flexion to 55 degrees, no deformity, and no current symptoms and no disabilities other than occasional varus instability. The examiner rendered the opinion that the veteran had "status post basketball injury sprain of the left ankle with tear in the triangular lateral ligament, suggillation, healing with mild varus instability occasionally." In light of the veteran's in service left ankle injury, report of continuity of instability in his left ankle since service, and the opinion of the VA examiner in January 2005 finding mild varus instability related to the in service injury, the Board finds that service connection for the veteran's left ankle disorder is warranted. C. Right Ankle Disorder The veteran seeks service connection for a right ankle disorder. The veteran's SMRs reveal that the veteran was treated for an inversion injury to the right ankle in July 1998. As noted above, the veteran was afforded a VA C&P examination in January 2005 in conjunction with his claim. The veteran did not report any problems regarding his right ankle. After examining the veteran, the examiner found no need for an assistive device, with no effect on the veteran's usual occupation, and no effect on the veteran's daily activities. The examiner noted that the right ankles revealed dorsiflexion to 25 degrees and plantar flexion to 55 degrees, no deformity, and no current symptoms and no disabilities other than occasional varus instability. The Board finds that the preponderance of the evidence is against entitlement to service connection for a right ankle disorder. As indicated above, service medical records reveal that the veteran was treated for a right ankle injury in service; however, more significantly, there is no medical evidence that the veteran currently has a right ankle disorder. The examiner, in January 2005, rendered the opinion that the veteran's right ankle did not reveal any current symptoms and no disabilities. As stated above, in the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143- 44 (1992). In Brammer, the United States Court of Appeals for Veterans Claims (Court) stated that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability." Brammer, 3 Vet. App. at 225. The Court further stated that where the proof is insufficient to establish a present disability there could be no valid claim for service connection. Id. As is noted above, the veteran asserts that he is entitled to service connection for a right ankle disorder; however, there is no medical evidence of record, which establishes that the veteran currently has this disability. Under these facts, a "disability" for VA compensation benefit purposes is not shown to be present in this case. In the absence of a current disability, as defined by governing law, the claim must be denied. III. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). 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). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the VCAA duty to notify was satisfied by way of a letter(s) sent to the appellant on May 2004 that fully addressed all four notice elements and was sent prior to the initial AOJ decision in this matter. The letter informed the appellant of what evidence was required to substantiate the claim(s) and of the appellant's and VA's respective duties for obtaining evidence. The appellant was also asked to submit evidence and/or information in her or his possession to the AOJ. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims 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) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In regard to the veteran's claims of entitlement to service connection for a right ankle disorder and entitlement to service connection for residuals status post two fractures of the right clavicle, although the notice provided did not address either the rating criteria or effective date provisions that are pertinent to the appellant's claims, such error was harmless given that service connection is being denied, and hence no rating or effective date will be assigned with respect to this claimed condition. In regard to the veteran's claims of entitlement to an initial compensable evaluation for foreign body and accidental stab wound of the right thigh and entitlement to a higher initial evaluation for herniated nucleus pulposus of thoracic spine at T7 and T8, currently evaluated as 10 percent disabling, the veteran is challenging the initial evaluation and effective date assigned following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the veteran's service medical records. The appellant was afforded a VA medical examinations in January 2005 and February 2006. Significantly, neither the appellant nor his or her 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). ORDER Entitlement to an initial compensable evaluation for foreign body and accidental stab wound of the right thigh (right thigh scars), is denied. Entitlement to a higher initial evaluation for herniated nucleus pulposus of thoracic spine at T7 and T8, currently evaluated as 10 percent disabling, is denied. Entitlement to service connection for residuals of status post two fractures of the right clavicle, is denied. Entitlement to service connection for a left ankle disorder, is granted. Entitlement to service connection for a right ankle disorder, is denied. REMAND The veteran is seeking service connection for bronchial asthma. The veteran contends that while he was diagnosed with and treated for bronchial asthma prior to service; the condition was permanently aggravated by his active service. The veteran's service medical records reveal that the veteran did not report asthma on his Report of Medical History upon entry into service. The Report of Medical Examination upon entry into service did not note asthma. The veteran was treated numerous times during service for asthma symptoms and in subsequent Reports of Medical History the veteran indicated that he had asthma. In December 2004, the veteran was afforded a VA C&P examination in conjunction with his claim. The veteran reported that he had had problem with asthma since childhood and had been hospitalized on a couple of occasions. The examiner diagnosed the veteran with mild bronchial asthma with a history of asthma symptoms since early childhood. However, the examiner did not render an opinion on whether the veteran's preexisting asthma was permanently aggravated by the veteran's service or whether the veteran's current bronchial asthma was related to the asthmatic symptoms experienced in service. VA is required to make reasonable efforts to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c). The veteran reported in his December 2004 VA C&P examination that he has seen a physician at the "health clinic in Arlington, Texas" since separation from service. However, these treatment records have not been associated with the claims folder and there is no indication that any attempts to obtain them have been made. Accordingly, the Board has no discretion and must remand these claims to obtain those records. Accordingly, the case is REMANDED for the following action: 1. Contact the veteran and request that he identify the names, addresses and approximate dates of treatment for all health care providers, VA and private, who may possess additional records pertinent to his claims from separation from service to the present. Following the receipt of any necessary authorizations, attempt to obtain and associate with the claims folder any medical records identified by the veteran. Specifically, following the receipt of any necessary authorizations from the veteran, attempt to obtain and associate with the claims file treatment records pertaining to the veteran from the health clinic in Arlington, Texas, as noted in the December 2004 VA examination report. 2. After completion of the foregoing development, arrange for the veteran to undergo an appropriate VA examination to determine the nature, extent, onset and etiology of any bronchial asthma, found to be present. The claims folder should be made available to and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. The examiner is asked to comment on the record of treatment for asthma in the service medical records. The examiner is asked to express an opinion as to when the veteran's bronchial asthma was first manifested (i.e., prior to service, in service, or after service). The examiner should also render an opinion as to whether it is more likely than not (meaning likelihood greater than 50%), at least as likely as not (meaning likelihood of at least 50%), or less likely than not or unlikely (meaning that there is a less than 50% likelihood) that the veteran's bronchial asthma, is related to or had its onset during service. If the examiner determines that the veteran's bronchial asthma is a disease which clearly and unmistakably (i.e., undebatably) preexisted service, the examiner is asked to indicate whether there was a permanent increase in the severity of the underlying pathology associated with the asthma which occurred during service. If the examiner answers this question affirmatively, the examiner is then asked to express an opinion as to whether the increase in severity is clearly and unmistakably (i.e., undebatably) due to the natural progress of the disease. If the examiner determines that the veteran's bronchial asthma did not increase in severity during service, the examiner should indicate as such. Lastly, the examiner should indicate whether the claimed asthma is otherwise related to the veteran's active service. The examiner must provide a complete rationale any stated opinion. 3. Thereafter, the RO should readjudicate the veteran's claim. If the benefits sought on appeal are not granted, the RO should issue a supplemental statement of the case and provide the veteran and his representative an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The appellant need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The purpose of the examination requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the veteran is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (2007) failure to cooperate by attending the requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). 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. 2006). ______________________________________________ C. TRUEBA Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs