Citation Nr: 0814819 Decision Date: 05/05/08 Archive Date: 05/12/08 DOCKET NO. 07-24 433 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to a rating in excess of 10 percent for chronic right ankle sprain. 2. Entitlement to a compensable rating for residuals of left inguinal hernia repair. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Riley, Associate Counsel INTRODUCTION The veteran served on active duty from November 2000 to November 2004. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which, in pertinent part, denied entitlement to increased ratings for the above conditions. In December 2007, the veteran provided testimony at a hearing before the undersigned at the Boston RO. A transcript of the hearing is of record. In a May 2007 statement, the veteran raised the issue of entitlement to service connection for a hernia. This claim is referred to the RO for the appropriate action. FINDINGS OF FACT 1. Chronic right ankle sprain is manifested by no more than moderate limitation of motion. 2. Residuals of left inguinal hernia repair are manifested by a superficial tender scar; the veteran does not have an inguinal hernia that is postoperative, recurrent, readily reducible and well supported by a truss or belt. CONCLUSIONS OF LAW 1. The schedular criteria for a rating in excess of 10 percent for chronic right ankle sprain have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2007); 38 C.F.R. §§ 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5270, 5271 (2007). 2. The schedular criteria for a compensable rating for residuals of a left inguinal hernia repair have not been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.7, 4.10, 4.14, 4.114, Diagnostic Code 7338 (2007). 3. The schedular criteria for a separate rating of 10 percent for a superficial tender scar of the left lower quadrant have been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.14, 4.118, Diagnostic Code 7804 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007) redefined VA's duty to assist the veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). Under the VCAA, 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 request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In a letter issued in March 2006, prior to the initial adjudication of the claims, the RO notified the veteran of the evidence needed to substantiate his claims for increased ratings. The letter also satisfied the second and third elements of the duty to notify by informing the veteran that VA would try to obtain medical records, employment records, or records held by other Federal agencies, but that he was nevertheless responsible for providing any necessary releases and enough information about the records to enable VA to request them from the person or agency that had them. With respect to the fourth element of VCAA notice, the March 2006 letter contained a notation that the veteran should submit any evidence in his possession pertinent to the claim on appeal. The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The veteran has substantiated his status as a veteran, and was notified of the second and third Dingess elements in the March 2006 letter. He received notice regarding the effective date and disability rating elements of his claims in a November 2006 letter. The Court has also held that, at a minimum, adequate VCAA notice in increased rating cases requires: (1) that VA notify the claimant that, to substantiate such a claim, the claimant 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; (2) if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). The March 2006 letter told the veteran that to substantiate the claims, he should submit evidence showing that the disabilities had worsened. It also provided examples of the types of evidence that he could submit or ask VA to obtain. The November 2006 Dingess letter told him that evidence demonstrating the effect his disabilities have on his employment would aid in substantiating his claims. He did not receive notice that the impact of the disabilities on daily life would be relevant. Any notice error will be presumed prejudicial unless VA can show that the error did not affect the essential fairness of the adjudication and persuade the Court that the purpose of the notice was not frustrated, for example 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." Sanders v. Nicholson, 487 F.3d 881, 888-9 (Fed. Cir. 2007), George- Harvey v. Nicholson, 21 Vet. App. 334, 339 (2007) . The Court in Vazquez-Flores held that actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrates an awareness of what was necessary to substantiate his or her claim. Vazquez-Flore, 22 Vet. App. 37 at 48, citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007). This showing of actual knowledge shows that there was no prejudice from the absence of complete notice on the first and third elements of Vazquez-Flores notice. The notice defect does not constitute prejudicial error in this case because the veteran demonstrated actual knowledge of the need for evidence of the impact of his disabilities on employment and daily life, specifically through his correspondence with VA, specifically his June 2007 Form 9, and his testimony before the Board in December 2007, where he addressed the impact of his disabilities on daily life. The right ankle disability and inguinal hernia repair are not rated on the basis of specific measurements or test results. Additionally, the VCAA letters provided notice on the fourth element of Vazquez-Flores notice by providing examples of evidence the veteran could submit or ask VA to assist in obtaining. There was a timing deficiency with regard to the November 2006 letter, in that it was issued after the initial adjudication of the claim. The timing deficiency was cured by the readjudication of the claims in the statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Duty to Assist The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the veteran, including service medical records, records from various federal agencies, and private medical records. In this regard, the Board notes that during his December 2007 hearing, the veteran testified that he had undergone a potentially relevant recent physical conducted by his private physician and that he would obtain records of the evaluation and submit it to the Board with an accompanying waiver of RO consideration. No record of such treatment has been received. The veteran has not authorized VA to obtain these records. VA is only required to obtain records for which necessary authorizations have been submitted. 38 C.F.R. § 3.159(c)(1)(ii) (2007). There are no other identified records that are not part of the claims folder. Additionally, the veteran has been provided several proper VA examinations in response to his claims. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. II. General Legal Criteria Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2007). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7 (2007). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2007). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). III. Right Ankle Legal Criteria Moderate limitation of motion under Diagnostic Code 5271 warrants a 10 percent disability evaluation. A 20 percent rating is warranted for marked limitation of motion of an ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5271. A 30 percent rating is warranted for ankylosis of the ankle in plantar flexion between 30 and 40 degrees, or ankylosis in dorsiflexion between 0 and 10 degrees. A 40 percent rating requires ankylosis in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion or eversion deformity. 38 C.F.R. § 4.71a, Diagnostic Code 5270. Normal ranges of ankle motions are 0 to 20 degrees for dorsiflexion and 0 to 45 degrees for plantar flexion. 38 C.F.R. § 4.71, Plate II (2007). Factual Background Service connection for a right chronic ankle sprain was granted in a June 2005 rating decision. A 10 percent evaluation was assigned, effective June 28, 2005. The veteran's current claim for an increased rating was received in February 2006. In May 2005, the veteran was afforded a VA examination of his right ankle. He stated that his ankle had never returned to normal following his in-service injury, and that he was unable to run or participate in the same recreational activities. Standing for prolonged periods caused some degree of swelling. He complained of minimal pain and was aware of tenderness to pressure over the anterior aspect. X- rays were again declined. Examination of the right ankle showed some slight swelling when compared to the left ankle. There was mild planel valgus of the right foot with depression of the longitudinal arch. The examiner also noted some protuberance and bulging of the medial and lateral malleoli when compared to the left. There was no gross instability. The veteran did have tenderness and soft tissue thickening in the interval between the tibia and fibula on the anterior aspect of the tibiotalar joint that was consistent with a soft tissue injury. Range of motion measurements, with three repetitions, were conducted with dorsiflexion to 0 degrees, plantar flexion to 35 degrees on the second repetition, and 20 degrees of inversion and eversion. The examiner found that the most impressive aspect of the examination was the veteran's swelling and tenderness with moderate decrease in motion both actively and passively. The diagnoses were chronic musculoligamentous sprain of the right ankle and injury to the tibiofibular syndesmosis. The veteran underwent another VA examination of his ankle several days later, also in May 2005. He reported having occasional swelling of his ankle without serious pain, especially when performing heavy lifting or with extensive running or walking. Examination of the right ankle was negative, with no swelling. Range of motion was completely normal with dorsiflexion to 20 degrees, plantar flexion to 40 degrees, inversion to 30 degrees, and eversion to 20 degrees. There was no pain with forced movement. The veteran refused to undergo X-rays as X-rays at the time of his initial ankle injury in 2001 were negative. In April 2006, the veteran was provided his most recent VA examination of his right ankle. He denied functional impairments on walking or standing. He reported pain, but no giving way or instability. Upon physical examination, the veteran's gait was noted to be normal. Dorsiflexion was to 25 degrees, with plantar flexion to 40 degrees. There was no additional limitation of motion upon repetitive use and no pain. Weakness of the right ankle was noted, but there was no varus or valgus angulation of the os calcis in relation to the long axis of the tibia. X-rays were normal. The diagnosis was right ankle weakness due to chronic ankle sprain and Achilles tendonitis. The examiner concluded that there were significant effects on the veteran's employment activities and mild effects on his daily activities. Analysis The veteran's right ankle is rated as 10 percent disabling under Diagnostic Code 5271 for moderate limitation of motion. The Board notes that the medical evidence of record clearly establishes that the veteran's right ankle is not ankylosed. The veteran retains useful motion of his right ankle, and therefore Diagnostic Code 5270 for ankle ankylosis is not for application. With respect to range of motion, the most limited motion was noted on the first examination in May 2005. At that time, plantar flexion was to 35 degrees and dorsiflexion was to 0 degrees with no pain. The examiner concluded that the veteran experienced moderate limitation of motion of his right ankle. In addition, there have been no findings of additional loss of range of motion upon repetitive testing. Flare-ups have not been documented. The evidence is, therefore against a finding that there is additional limitation of motion due to functional impairment. 38 C.F.R. §§ 4.40, 4.45, 4.59. While the veteran testified at his December 2007 hearing that his ankle would give out, instability testing has been consistently negative. Therefore, the Board finds that the limitation of motion of the veteran's right ankle more nearly approximates moderate than marked. Accordingly, an increased rating is not warranted under Diagnostic Code 5271 for limitation of motion at any time during the claims period. Other diagnostic codes pertaining to the ankle do not provide for an evaluation in excess of 10 percent unless there is ankylosis or marked malunion of the os calcis. 38 C.F.R. § 4.71a, Diagnostic Codes 5270, 5272, 5273 (2007). 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 DICTIONALRY (28TH Ed. 1994) at 86.). As just discussed the veteran retains significant ankle motion. Hence, he is not entitled to an increased rating on the basis of ankylosis. X-ray examinations have shown no abnormality. These findings weigh against a finding that there is malunion of the os calcis. The preponderance of the evidence is against an increased schedular rating. Reasonable doubt does not arise and an increased schedular rating is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.7, 4.21. IV. Residuals of Left Inguinal Hernia Repair Legal Criteria The veteran's hernia repair is evaluated under the rating code for inguinal hernias. Small, postoperative recurrent, or unoperated irremediable, not well supported by truss, or not readily reducible inguinal hernia is evaluated as 30 percent disabling. An inguinal hernia that is postoperative recurrent, readily reducible and well supported by a truss or belt is 10 percent disabling. A hernia that has not been operated, but is remediable, or a hernia that is small, reducible, or without true hernia protrusion is evaluated as noncompensably disabling. 10 percent is added for bilateral involvement, provided the second hernia is compensable. This means that the more severely disabling hernia is to be evaluated, and 10 percent, only, added for the second hernia, if the latter is of compensable degree. 38 C.F.R. § 4.114, Code 7338. A 10 percent evaluation is authorized for superficial scars that are painful on examination. 38 C.F.R. § 4.118, Diagnostic Code 7804 (2007). Factual Background Service connection for residuals of inguinal hernia repair was granted in a June 2005 rating decision. A noncompensable evaluation was assigned, effective November 12, 2004. The veteran was provided a VA examination of his residuals of a hernia repair in May 2005. He reported experiencing left lower quadrant discomfort and reduced ability to perform sports and physical activities. He also complained of discomfort from his scar. Upon examination, a well-healed, left lower quadrant scar with generalized tenderness was noted. There was no hernia on the present examination. The diagnosis was left inguinal hernia repair in 2004 with residual discomfort and limitation of physical activity. Another VA examination was provided to the veterans several days later, also in May 2005. He reported having localized tenderness in the scar at the site of the operation with no swelling of the testicle or unusual or severe pain or discomfort. Upon physical examination, there was no swelling at the site of the operation and a well-healed three inch scar was noted. There was no local tenderness and the left testicle was normal. There was no evidence of recurrence of the hernia. The examiner concluded that the examination was completely negative for findings. The veteran's most recent VA examination was conducted in April 2006. He reported experiencing pain in the area of his operation and scar and discomfort when carrying heavy objects. He stated that he worked for the Massachusetts Highway Department as an inspector of road construction. He is sometimes required to carry 80 lbs. worth of dirt samples that cause pain. Examination of the gastrointestinal system revealed soft abdomen with normal bowel sounds and no tenderness. A 2 inch well-healed scar was noted in the lower inguinal area. The scar was somewhat keloid in formation with no tenderness to light touch. Analysis While the veteran testified that he has discomfort and weakness in the inguinal walls due to his hernia repair, a compensable rating under Diagnostic Code 7338 requires a recurrent inguinal hernia that is readily reduceable and well supported by a truss or belt. Weakness without hernia recurrence does not meet these criteria. The record is negative for evidence of the recurrence of a hernia and none of the VA examiners have noted the presence of a current hernia. While an increased rating is not warranted for the left hernia repair under Diagnostic Code 7338, a separate rating is warranted for the veteran's surgical scar. The medical evidence of record shows that the veteran currently has a two to three inch scar on his left lower quadrant. Upon VA examination in May 2005, the scar was noted to be generally tender. A 10 percent rating is provided for superficial scars that are painful on examination. 38 C.F.R. § 4.118, Diagnostic Code 7804 (2007). This symptomatology is separate and distinct from that contemplated by under Diagnostic Code 7338. Cf. 38 C.F.R. § 4.14 (2007) (VA policy is to avoid rating the same manifestations of service connected disabilities under different codes); see Esteban v. Brown, 6 Vet App 259 (1994) (VA is permitted to rate totally separate manifestations of the same disability under separate codes). Therefore, a separate 10 percent rating for the left lower quadrant scar is warranted. The rating schedule does not provide for an evaluation in excess of 10 percent for the scar unless it is deep or causes limitation of motion and cover at least 12 square inches. 38 C.F.R. § 4.118, Diagnostic Code 7801 (2007). There is no allegation or evidence that the scar is deep or causes limitation of motion. It therefore does not approximate the criteria for an evaluation in excess of 10 percent. The Board has considered reasonable doubt and all potentially applicable provisions of 38 C.F.R. Parts 3 and 4. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board has found no section that provides a basis upon which to assign higher disability evaluations. Extraschedular The rating schedule will generally be considered adequate to rate service connected disabilities. 38 C.F.R. § 3.321(a) (2007). Under the provisions of 38 C.F.R. § 3.321(b), in exceptional cases an extraschedular evaluation can be provided in the interest of justice. The governing norm in such a case is that the case presents such an unusual or exceptional disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impracical the application of regular schedular standards. In this case the veteran's disabilities have not required any periods of hospitalization. The veteran is reportedly working, and the there have been no reports that the disabilities have interfered with that work. Accordingly, referral for consideration of an extraschedular rating is not warranted. ORDER Entitlement to a rating in excess of 10 percent for chronic right ankle sprain is denied. Entitlement to a compensable rating for residuals of left inguinal hernia repair is denied. Entitlement to a separate 10 percent disability rating for a scar of the veteran's left lower quadrant, as a residual of the left inguinal hernia repair, is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs