Citation Nr: 1007695 Decision Date: 03/02/10 Archive Date: 03/11/10 DOCKET NO. 07-04 290 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUES 1. Entitlement to an initial compensable evaluation for service-connected residuals of a right ankle injury. 2. Entitlement to an initial compensable evaluation for service-connected right knee retropatellar pain syndrome. 3. Entitlement to an initial evaluation in excess of 10 percent for service-connected headaches. 4. Entitlement to an initial compensable evaluation for a service-connected neck scar. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The Veteran served on active duty from August 1999 to August 2005. This matter comes to the Board of Veterans' Appeals (Board) from a May 2006 rating decision by which the RO, inter alia, granted service connection for the disabilities at issue herein. The Veteran is contesting the initial disability evaluations assigned. By November 2006 rating decision, the RO granted an increased rating of 10 percent for the Veteran's service-connected headaches. Although each increase represents a grant of benefits, the United States Court of Appeals for Veterans Claims (Court) has held that a decision awarding a higher rating, but less that the maximum available benefit does not abrogate the pending appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). Thus, this matter continues before the Board. In connection with this appeal, it is noted that the Veteran requested and was scheduled for a personal hearing before a Veterans Law Judge at the RO in December 2009. Although he was notified of the time and date of the hearing by mail sent to his last known address, he failed to appear for that hearing and neither furnished an explanation for his failure to report nor requested a postponement or another hearing. Pursuant to 38 C.F.R. § 20.704(d) (2009), when an appellant fails to report for a scheduled hearing and has not requested a postponement, the case will be processed as though the request for a hearing was withdrawn. FINDINGS OF FACT 1. The Veteran's service-connected residuals of a right ankle injury are manifested by no more than reports of recurrent sprains as well as discomfort with full range of motion. 2. The Veteran's service-connected right knee retropatellar pain syndrome is manifested by no more than full range of motion with subjective complaints of flare-ups alleviated with over-the-counter analgesics and no current adverse symptomatology. 3. The Veteran's service-connected headaches are manifested by no more than weekly headaches with some dizziness that last for approximately one hour. 4. The Veteran's service-connected neck scar is superficial, very small, largely asymptomatic, and not productive of disfigurement. CONCLUSIONS OF LAW 1. The criteria for entitlement to a compensable disability evaluation for the Veteran's service-connected residuals of a right ankle injury have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.71, 4.71a, Diagnostic Code 5271 (2009). 2. The criteria for entitlement to a compensable disability evaluation for the Veteran's service-connected right knee retropatellar pain syndrome have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5257 (2009). 3. The criteria for entitlement to a disability evaluation in excess of 10 percent for the Veteran's service-connected headaches have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ §§ 4.3, 4.7, 4.20, 4.124a, 4.130, Diagnostic Code 9304-8045 (2009). 4. The criteria for entitlement to a disability evaluation in excess of zero percent for the Veteran's service-connected neck scar have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Code 7802 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Law and Regulations Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. The additional code is shown after a hyphen. Regulations provide that when a disability not specifically provided for in the rating schedule is encountered, it will be rated under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. Fisher v. Principi, 4 Vet. App. 57, 60 (1993). An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2009). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three- step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 4.3 (reasonable doubt to be resolved in veteran's favor). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis Residuals of a right ankle injury The Veteran's service-connected residuals of a right ankle injury have been rated zero percent disabling by the RO under the provisions of Diagnostic Code 5271. 38 C.F.R. § 4.71a. Under Diagnostic Code 5271 (ankle, limited motion), marked limitation of motion in the ankle warrants a 20 percent disability rating, and moderate limitation of motion in the ankle warrants a 10 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5271. Normal range of motion for the ankle is defined as follows: dorsiflexion from zero to 20 degrees; and plantar flexion from zero to 45 degrees. 38 C.F.R. § 4.71, Plate I (2009). In February 2006, the Veteran was afforded a VA general medical examination. Regarding the right ankle, the Veteran reported right ankle pain that was a six on a scale of one to 10. He also complained of weakness, swelling, redness, instability, and locking. Prolonged walking and standing caused flare-ups and pain of seven on a scale of one to 10. The pain lasted for two hours and was relieved with rest and ice. The Veteran was able to function during flare-ups. He used a brace but no other assistive device. The Veteran noted right ankle pain while working as a school bus driver but continued to work without further difficulties. The Veteran did indicate that he resigned from his previous position as a bus driver in Qatar due to his right ankle pain. Objectively, right ankle range of motion was as follows: zero to 20 degrees of dorsiflexion, zero to 45 degrees of plantar flexion, zero to 30 degrees of inversion, and zero to 20 degrees of eversion. There was no change in range of motion with repeated testing. Pain, weakness, and tenderness were not present on examination. The Veteran could walk on his toes and heels as well as squat. An X-ray study of the right ankle revealed normal results. The examiner diagnosed chronic right ankle strain. On VA orthopedic examination in October 2006, the Veteran indicated that the right ankle became swollen on occasion. Swelling did not occur when using an ankle brace and proper tying of the shoes. The Veteran indicated that his right ankle twisted easily and felt weak. The Veteran had multiple sprains and morning stiffness. Pain was an eight on a scale of one to 10 that dissipated within an hour of taking his shoes off and taking a shower. There were brief decreases in right ankle range of motion following a sprain. No crutches and the like were needed. The Veteran indicated that he was a mechanic and experienced pain all day, but he was able to carry on with his activities of daily living. Right ankle range of motion was from zero to 20 degrees of dorsiflexion, zero to 45 degrees of plantar flexion, zero to 30 degrees of inversion, and zero to 20 of eversion. There was no pain on range of motion. There was no tenderness, swelling, or effusion of the right ankle. There was normal strength and normal gait. There was no guarding, and there were no deformities. There was normal heel-toe walk. Repetitive movements did not decrease range of motion or joint function. In short, it was a normal examination. There was no right ankle ankylosis. The diagnosis was of recurrent sprains, normal examination. On September 2008 VA joints examination, the Veteran reported right ankle swelling three or four times a week with mild discomfort. The Veteran used over-the-counter analgesics to ease right ankle and right knee pain. The Veteran denied incapacitating flare-ups. The Veteran worked as a diesel mechanic and did not miss work due to the service-connected right ankle disability. Right ankle range of motion was from zero to 20 degrees of dorsiflexion, zero to 45 degrees of plantar flexion, zero to 30 degrees of inversion, and zero to 20 degrees of eversion. This constituted, according to the examiner, full and normal right ankle range of motion. There was no pain on motion, and there were no additional limitations caused by pain, fatigue, incoordination, weakness, or lack of endurance. There was no objective evidence of heat, redness, swelling, or tenderness of the right ankle. Right ankle stability was intact. The Veteran, indeed, could hop on the right lower extremity. Weight bearing was normal. An X-ray study of the right ankle was within normal limits. The examiner diagnosed a right ankle sprain with residuals. Because the Veteran has full right ankle range of motion, a 10 percent evaluation under Diagnostic Code 5271 is not warranted, as that would require moderate limitation of motion of the right ankle. The provisions of 38 C.F.R. § 4.31 indicate that in every instance where the minimum schedular evaluation requires residuals and the schedule does not provide for a zero percent evaluation, a zero percent evaluation will be assigned when the required symptomatology is not shown. 38 C.F.R. § 4.31 (2009). Because the Veteran does not meet the minimum criteria for a scheduler evaluation under Diagnostic Code 5271, no more that a zero percent rating can be assigned under its provisions. Id. The Board also concludes that Diagnostic Code 5270 (ankle, ankylosis of) is not appropriate for application in this case because there is no evidence of ankylosis in the record. 38 C.F.R. § 4.71a, Diagnostic Code 5270. Ankylosis is "immobility and consolidation of a joint due to disease, injury, surgical procedure." See Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)). The Board observes that other provisions in the Ratings Schedule related to disabilities of the ankle are not applicable. Diagnostic Code 5272 (ankylosis of the subastragalar or tarsal joint), Diagnostic Code 5273 (malunion of the os calcis or astragalus), and Diagnostic Code 5274 (astragalectomy) do not apply because they concern disabilities from which the Veteran does not suffer. 38 C.F.R. § 4.71a, Diagnostic Codes 5272, 5273, and 5274. The Board observes that the Veteran's right ankle symptomatology does not seem to have fluctuated materially during the course of this appeal. Thus a staged rating need not be considered. Fenderson, supra. In any event, the Board observes that at no time has his right ankle symptomatology warranted a compensable evaluation under Diagnostic Code 5271. In the present case, it should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 (2009) allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 (2009) provides that consideration also be given to weakened movement, excess fatigability, and incoordination. No additional compensation is warranted under these provisions because functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements is not apparent. Moreover, weakened movement, excess fatigability, and incoordination have not been shown. Finally, in denying the claim for a higher rating, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service- connected residuals of a right ankle injury is inadequate. A comparison between the level of severity and symptomatology of the Veteran's residuals of a right ankle injury with the established criteria found in the rating schedule for ankle disabilities shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board further observes that, even if the available schedular evaluation for the disability is inadequate (which it manifestly is not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms." The record does not show that the Veteran has required frequent hospitalizations for his residuals of a right ankle injury. Indeed, it does not appear from the record that he has been hospitalized at all for that disability. Additionally, there is not shown to be evidence of marked interference with employment due to the disability. The Veteran indicated that he left a job in Qatar due to the right ankle disability, but he soon found another job that involved driving a bus. There is nothing in the record which suggests that the residuals of a right ankle injury markedly impacted his ability to perform his job. Moreover, there is no evidence in the medical records of an exceptional or unusual clinical picture. In short, there is nothing in the record to indicate that this service-connected disability on appeal causes impairment with employment over and above that which is contemplated in the assigned schedular rating. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The Board therefore has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision. Right knee retropatellar pain syndrome The Veteran's service-connected right knee retropatellar pain syndrome has been rated zero percent disabling by the RO under the provisions of Diagnostic Code 5257. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Under Diagnostic Code 5257, the following levels of disability are included: Recurrent subluxation or lateral instability: 30 % severe; 20 % moderate; 10% slight. The Board notes that words such as "slight" and "moderate" are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2009). Although the words "slight", "moderate", and "severe" are not defined in VA regulations, "slight" is generally defined as "small in size, degree, or amount"; "moderate" is generally defined as "of average or medium quality, amount, scope, range, etc."; and "severe" is defined as "extremely intense." Webster's New World Dictionary, Third College Edition (1988), pgs. 1038, 871, and 1071. Under 38 C.F.R. § 4.71, Plate II, normal range of motion for the knee is zero degrees extension and 140 degrees flexion. On February 2006 VA general medical examination, the Veteran reported occasional right knee pain that was a five on a scale of one to 10. Such pain occurred approximately three times a week with prolonged sitting. Exercise helped ease the pain. The Veteran used a knee brace at times. With his previous job, he had to get up and stand periodically and stretch the knee, but he was able to continue his occupational driving and to perform the activities of daily living. Objectively, there was full range of motion of the right knee, which was from zero to 140 degrees. There was no change in motion on repetition, and no additional limitation of motion was noted. There was no right knee pain, weakness, or tenderness. An X-ray study of the right knee failed to reveal any fracture, dislocation, or other bone or joint abnormality. The examiner diagnosed, in pertinent part, right retropatellar pain syndrome. On October 2006 VA joints examination, the Veteran complained of right knee locking, popping, and pain on squatting, using stairs, and kneeling. The Veteran experienced right knee pain on a daily basis that was a seven on a scale of one to 10. That increased pain lasted for an hour. The Veteran indicated, however, that as a mechanic, he did a lot of squatting and climbing and that any right knee pain did not fully subside until he returned home after the close of business. There was no decrease in range of motion or additional limitation of function of the right knee during flare-ups. There were no episodes of recurrent subluxation or dislocation. There was no arthritis. As to the impact of the right knee disability on the Veteran's occupation, the examiner indicated that the Veteran endured pain all day as a mechanic but was able to "carry on." There was no impact upon the activities of daily living brought on by the right knee disability. Right knee range of motion was from zero to 140 degrees. There was no painful motion, instability, weakness, tenderness, redness, abnormal movement, guarding, deformities, ankylosis, or swelling of the right knee. Repeated squats did not decrease right knee range of motion or joint function. The examiner, indeed, noted that it was a normal examination. The examiner diagnosed retropatellar pain syndrome. On September 2008 VA joints examination, the Veteran indicated that his right knee disability had improved and that it was asymptomatic. The Veteran, stated that he was given a right knee brace but that he did not use it because it was uncomfortable. The Veteran indicated that he used over-the-counter analgesics approximately once a week for right knee or ankle symptomatology. The Veteran denied acute incapacitating flare-ups of the right knee since leaving service. There were no episodes of dislocation or recurrent subluxation. There was no inflammatory arthritis. The Veteran, moreover, worked as a diesel mechanic for a defense contracting company and took no sick leave for his right knee. Right knee range of motion was from zero to 140 degrees. There was no right knee pain on motion. There was no additional limitation of motion due to pain, fatigue, incoordination, weakness, or lack of endurance. There was no evidence of heat, redness, swelling, or tenderness of the right knee. The Veteran could hop on either foot and squat without apparent discomfort. Right knee stability was intact. Gait was normal. There was no ankylosis. A right knee X-ray study was within normal limits. The examiner diagnosed sprain right knee, normal examination. As outlined above, under 38 C.F.R. § 4.31, in every instance where the minimum schedular evaluation requires residuals and the schedule does not provide for a zero percent evaluation, a zero percent evaluation will be assigned when the required symptomatology is not shown. The Board is of the opinion that the Veteran does not meet the minimum criteria for a compensable evaluation under Diagnostic Code 5257 because no recurrent subluxation or lateral instability of the right knee has been shown, and not even a slight disability picture is present with respect to symptomatology contemplated in Diagnostic Code 5257. As such, no more than a zero percent evaluation is warranted. 38 C.F.R. §§ 4.31, 4.71a, Diagnostic Code 5257. The Board observes, moreover, that the Veteran's symptomatology has not fluctuated materially during the course of the appeal, he has not had limitation of motion, recurrent subluxation, lateral instability, and the like, and his right knee symptomatology appears to have improved as evident from a reading of the September 2008 VA orthopedic examination report. As such, a staged rating need not be considered. Fenderson, supra. The Board will now consider other potentially relevant schedular provisions. Diagnostic Code 5265 (ankylosis of the knee) is inapplicable because right knee ankylosis has not been shown; Diagnostic Codes 5258 and 5259 (dislocation of the semilunar cartilage and removal of the semilunar cartilage respectively) are not relevant because the record is absolutely silent as to the Veteran's semilunar cartilage, Diagnostic Codes 5260 and 5261 (limitation of flexion of the leg and limitation of extension of the leg respectively) need not be considered because the Veteran has full right knee range of motion, Diagnostic Code 5262 (impairment of the tibia and fibula) does not apply because impairment of the tibia and fibula is not apparent from the record, and Diagnostic Code 5263 (genu recurvatum) need not be considered because the disability at issue therein is not one from which the Veteran suffers. 38 C.F.R. § 4.71a, Diagnostic Codes 5256 through 5263 with the exception of Diagnostic Code 5257. VA's General Counsel has stated that when a knee disorder is rated under Diagnostic Code 5257 and a veteran also has limitation of knee motion which at least meets the criteria for a zero percent rating under Codes 5003 (degenerative arthritis), 5260 or 5261 (2009), separate evaluations may be assigned for arthritis with limitation of motion and for instability. However, the General Counsel stated that if, as in this case, a veteran does not meet the criteria for a zero percent rating under Code 5003, 5260, or 5261, there is no additional disability for which a separate rating for arthritis may be assigned. VAOPGCPREC 9-98 (Aug. 14, 1998); VAOPGCPREC 23-97 (July 1, 1997). There is no evidence of degenerative joint disease or instability of the right knee or of limitation of motion of the right knee. Thus, the General Counsel opinions are inapplicable here. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca, supra. Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability, and incoordination. No additional compensation is warranted under these provisions because pain and weakness do not cause additional disability beyond that reflected on range of motion measurements. Furthermore, weakened movement, excess fatigability, and incoordination of the right knee have not been shown. Finally, in denying the claim for a higher rating, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service- connected right knee retropatellar pain syndrome is inadequate. A comparison between the level of severity and symptomatology of the Veteran's right knee retropatellar pain syndrome with the established criteria found in the Rating Schedule under Diagnostic Code 5257 shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board observes, indeed, that the Veteran's right knee disability does not even rise to the level necessary for a compensable evaluation under that or any other provision. The Board further observes that, even if the available schedular evaluation for the disability is inadequate (which it manifestly is not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms." The record does not show that the Veteran has required frequent hospitalizations for his right knee retropatellar pain syndrome. Indeed, it does not appear from the record that he has been hospitalized for that disability. Additionally, there is not shown to be evidence of marked interference with employment due to the disability. There is nothing in the record which suggests that right knee retropatellar pain syndrome markedly impacted his ability to perform his job. Moreover, there is no evidence in the medical records of an exceptional or unusual clinical picture. In short, there is nothing in the record to indicate that this service-connected disability on appeal causes impairment with employment over and above that which is contemplated in the assigned schedular rating. Van Hoose v. Brown, 4 Vet. App. at 363. The Board therefore has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision. Headaches The Veteran's service-connected headaches have been rated 10 percent disabling by the RO under the provisions of Diagnostic Code 9304-8045. 38 C.F.R. §§ 4.20, 4.124a, 4.130. 38 C.F.R. § 4.124a, Diagnostic Code 8045, indicates that purely neurologic disabilities, such as hemiplegia, epileptoform seizures, facial nerve paralysis, etc., following trauma to the brain, will be rated under the diagnostic codes specifically addressing such disabilities, with citation of a hyphenated diagnostic code. Under Diagnostic Code 8045, a 10 percent rating is warranted for purely subjective complaints following trauma, such as headache, dizziness, insomnia, etc., recognized as symptomatic of brain trauma. Further, the 10 percent rating will not be combined with any other rating for a disability due to brain trauma. 38 C.F.R. § 4.130, Diagnostic Code 9304 is rated under the General Rating Formula for Mental Disorders and pertains specifically to dementia due to head trauma. Under the General Rating Formula, a 30 percent evaluation is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). Under 38 C.F.R. § 4.124a, Diagnostic Code 8100, migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability warrant a 50 percent evaluation. Migraine headache disorders with characteristic prostrating attacks occurring on an average once a month warrants a 30 percent disability evaluation. A 10 percent evaluation requires characteristic prostrating attacks averaging one in two months over the last several months. A noncompensable evaluation is assigned for migraine headaches with less frequent attacks. On February 2006 VA general medical examination, the Veteran reported headaches that followed a shrapnel injury that occurred subsequent to an explosion on an improvised explosive device (IED) in 2004. He complained of daily headaches without aura that lasted for about an hour and eased on their own. The Veteran noted some photophobia but no phonophobia. There was nausea but no emesis, and he was able to function while headaches were present. Objectively, the Veteran was oriented times three with normal memory, gait, stance, and coordination. Cranial nerves II through XII were intact. The deep tendon reflexes were equal and active and 2+/4 in all the extremities. He had normal sensation to light monofilament touch on all extremities. The examiner diagnosed headaches from shrapnel wounds. On October 2006 VA neurologic examination, the Veteran indicated that headaches occurred about once a week and could return the same day. He also indicated that he occasionally awoke with dizziness lasting five to 10 minutes. The Veteran indicated that he wore earphones because he worked as a mechanic but that job-related noise exposure sometimes brought on headaches. The examiner diagnosed post concussion headaches. The Board observes that the Veteran is already maximally compensated under Diagnostic Code 8045. The Veteran suffers from no apparent neurologic deficits. Rather, he suffers from subjective complaints of headaches with some dizziness. As such, a 10 percent is the highest rating available to him under 9304-8045. The Board observes that the Veteran has been awarded service connection for posttraumatic stress disorder under 4.130, Diagnostic Code 9411. Diagnostic Code 9411, like Diagnostic Code 9304, is rated under the General Formula for Rating Mental Disorders. The Board is of the opinion that the Veteran's postconcussion headaches need not be evaluated under the General Formula for Rating Mental Disorders, because he does not appear to have any psychiatric symptomatology or cognitive impairment associated with such headaches. The Board will now consider whether the Veteran would fare better with an evaluation under Diagnostic Code 8100 as opposed to the current Diagnostic Code 9304-8045. The Board concludes that he would not because he does not experience prostrating attacks, such that the criteria for even a 10 percent evaluation are not met. In summary, there appears no means by which to assign an evaluation in excess of 10 percent for the Veteran's service- connected headaches at any time during the appellate period. Fenderson, supra. Finally, in denying the claim for a higher rating, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service- connected headaches is inadequate. A comparison between the level of severity and symptomatology of the Veteran's headaches with the established criteria found in the rating schedule for headaches due to brain trauma shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology. The Board further observes that, even if the available schedular evaluation for the disability is inadequate (which it manifestly is not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms." The record does not show that the Veteran has required frequent hospitalizations for his headaches. Indeed, it does not appear from the record that he has been hospitalized at all for his headaches. Additionally, there is not shown to be evidence of marked interference with employment due to the disability. There is nothing in the record which suggests that headaches markedly impacted his ability to perform his job. Moreover, there is no evidence in the medical records of an exceptional or unusual clinical picture. In short, there is nothing in the record to indicate that this service-connected disability on appeal causes impairment with employment over and above that which is contemplated in the assigned schedular rating. Van Hoose, supra. The Board therefore has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision. Neck scar The Veteran's service-connected neck scar has been rated zero percent disabling by the RO under the provisions of Diagnostic Code 7802. 38 C.F.R. § 4.118, Diagnostic Code 7802. The applicable rating criteria for skin disorders, found at 38 C.F.R. § 4.118, were amended effective August 30, 2002 and again in October 2008. The October 2008 revisions are applicable to application for benefits received by the VA on or after October 23, 2008. 73 Fed. Reg. 54708 (September 23, 2008). In this case, the Veteran filed his claim in August 2005. Therefore, only the post-2002 and pre-October 2008 version of the schedular criteria, set out immediately below, is applicable. Diagnostic Code 7802 pertains to scars, other than the head, face, or neck that are superficial and that do not cause limitation of motion. A maximum 10 percent rating is warranted for scars covering an area of 144 square inches (929 square centimeters) or greater. Note (1) 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 deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118. On February 2006 VA general medical examination, the Veteran, in pertinent part, reported that he sustained a scar on the neck following an IED explosion. He was told that the shrapnel would self extract over time. There were no complications, but the Veteran noted pain of five on a scale of one to 10 every other day associated with the scar but had no difficulty with function due to the scar. On objective examination, the examiner noted a scar on the lower lateral neck that was four millimeters in length but was currently covered by a follicular cyst. The scar was well healed with no deep adherence and was freely movable without pain and had normal coloration in the surrounding tissue. The examiner diagnosed a neck scar without disfigurement or dysfunction. On October 2006 VA examination, the Veteran indicated that he had few neck scar symptoms. He stated that there was occasional neck pain in the morning that dissipated with neck range of motion stretching. The examiner described a small, hard, nontender, and not swollen knot on the right side of the nape of the neck that was four millimeters in length. It was the same color as the surrounding skin, in a hairy area. The scar was not painful on examination, and there was no adherence to underlying tissue. The scar was not unstable or deep, and it was superficial and not disfiguring. The examiner diagnosed a piece of shrapnel of the skin on the neck with localized foreign body reaction. In February 2008, the Veteran underwent surgery in the right occipital neck region. On September 2008 VA scars examination, the Veteran reported that a piece of shrapnel embedded in his neck had been excised in February 2008. The pathology report, according to the examiner, however, reflected that the mass removed was a sebaceous cyst. There was no comment regarding a foreign body within the mass. The Veteran reported morning neck stiffness that eased with activity. Such stiffness occurred two or three times a week. Approximately once a week, he took over-the-counter analgesics for neck pain. The wound healed well, and the scar was nontender. The examiner described a scar on the right base of the neck that was 2.5 centimeters in length. The scar was not productive of pain. There was no adherence to underlying tissue. Skin texture was normal, and the scar was stable and superficial, and there was no elevation or depression of the surface contour of the scar on palpation. The scar was not deep, meaning that there was no underlying tissue loss or damage. There was no inflammation, edema, or keloid formation. The color of the scar was similar to that of the surrounding areas of the skin. The scarred area was not inflexible, and there was no limitation of motion associated with the scar. Indeed, there was full cervical spine range of motion. The scar was not disfiguring according to the examiner. The examiner diagnosed an asymptomatic well healed neck scar and myofascial syndrome of the right neck related to the surgical scar. Initially, the Board observes that a compensable evaluation is not warranted under Diagnostic Code 7802 because the Veteran's scar does not cover an area of 144 square inches. 38 C.F.R. § 4.118, Diagnostic Code 7802. The Board will explore the applicability of other rating provisions related to scars. Diagnostic Code 7800 pertains to disfigurement of the head, face, or neck. 38 C.F.R. § 4.118, Diagnostic Code 7800 (2008). This provision is inapplicable, as the Veteran's neck scar is not productive of disfigurement, is small, covered with hair, and is of similar color to surrounding skin. Diagnostic Code 7801 pertains to scars, other than on the head, face, or neck, that are deep or that cause limitation of motion. 38 C.F.R. § 4.118, Diagnostic Code 7801 (2008). This provision need not be considered in the Veteran's case because the Veteran's service-connected neck scar is neither deep nor productive of limitation of motion. Diagnostic Code 7803 provides for a 10 percent evaluation for scars that are superficial and unstable. 38 C.F.R. § 4.118, Diagnostic Code 7803 (2008). The Veteran scar is superficial, but it is not unstable. As such, a rating under Diagnostic Code 7803 would not be warranted. The Board finds, moreover, that Diagnostic Code 7804 is not for consideration. 38 C.F.R. § 4.118, Diagnostic Code 7804. Diagnostic Code 7804 deals with scars that are superficial and painful on examination. While the Veteran has regularly complained of slight pain in the morning and the September 2008 VA examiner diagnosed myofascial syndrome, the September 2008 examiner described the scar as asymptomatic. No pain was found on any of the examinations detailed above. As such, again, Diagnostic Code 7804 is inapplicable. Finally, the Board observes that Diagnostic Code 7805, which deals with scars that cause limitation of function is inapplicable in this instance, as no limitation of function has been caused by the Veteran's service- connected neck scar. 38 C.F.R. 4.118, Diagnostic Code 7805. In sum, an initial compensable evaluation is not warranted at any time for the Veteran's service-connected neck scar, and an increased rating is denied for the entire appellate period. 38 C.F.R. § 4.118, Diagnostic Code 7802; Fenderson, supra. In denying the claim for a higher rating, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected neck scar is inadequate. A comparison between the level of severity and symptomatology of the Veteran's neck scar with the established criteria found in the rating schedule for scars shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. Indeed, the Veteran's scar appears to be small, not readily visible, and largely asymptomatic. The Board further observes that, even if the available schedular evaluation for the disability is inadequate (which it manifestly is not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms." The record does not show that the Veteran has required frequent hospitalizations for his neck scar. Indeed, it does not appear from the record that he has been hospitalized at all for that disability. Additionally, there is not shown to be evidence of marked interference with employment due to the disability. There is nothing in the record which suggests that the neck scar markedly impacted his ability to perform his job. Moreover, there is no evidence in the medical records of an exceptional or unusual clinical picture. In short, there is nothing in the record to indicate that this service-connected disability on appeal causes impairment with employment over and above that which is contemplated in the assigned schedular rating. See Van Hoose, 4 Vet. App. at 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The Board therefore has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision. Rice A review of the record indicates that the Veteran has not raised the issue of entitlement to a total rating based on individual unemployability due to service- connected disability (TDIU). The Court has held that entitlement to TDIU should be considered as part of the underlying determination of the appropriate initial disability rating to be assigned following the grant of service connection. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) ("[W]e hold that a request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation."). Because a claim of TDIU cannot be construed from a close reading of the record with respect to any of the issues on appeal herein, it need not be considered. The Board emphasizes that the Veteran's orthopedic disabilities have apparently caused some discomfort at work. The Veteran, however, has had no periods of unemployment or prolonged, frequent, or unusual patterns of absenteeism caused by any of his service-connected disabilities. He himself indicated that he "carried on." As such, again, the matter of TDIU is not implicit in the record. Veterans Claims Assistance Act of 2000 (VCAA) As provided for by VCAA, 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 (West 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). 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; and (3) that the claimant is expected to provide 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), in this case the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court held that, upon receipt of an application for a service- connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) 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 this case, notice consistent with the Court's holding in Dingess was provided in March 2006. Here, the VCAA duty to notify was satisfied by way of a letters provided in June and November 2005 that fully addressed all three notice elements and was provided prior to the initial AOJ decision in this matter. The letters informed the Veteran of what evidence was required to substantiate the claims and of the Veteran's and VA's respective duties for obtaining evidence. 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 Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the service treatment records, VA clinical records, and private medical records. The was afforded VA medical examinations in furtherance of the issues on appeal. Significantly, neither the nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran 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 service- connected residuals of a right ankle injury is denied. Entitlement to an initial compensable evaluation for service- connected right knee retropatellar pain syndrome is denied. Entitlement to an initial evaluation in excess of 10 percent for service-connected headaches is denied. Entitlement to an initial compensable evaluation for a service-connected neck scar is denied. ______________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs