Citation Nr: 1012016	
Decision Date: 03/31/10    Archive Date: 04/07/10

DOCKET NO.  09-07 182	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, 
the Commonwealth of Puerto Rico


THE ISSUES

1.  Whether new and material evidence has been received to 
reopen a claim of entitlement to service connection for 
chronic lumbosacral strain with radiculopathy (referred to 
hereinafter as "low back condition").

2.  Entitlement to an evaluation in excess of 10 percent 
disabling for the residuals of a left ankle sprain with 
instability (referred to hereinafter as "left ankle 
condition").

3.  Entitlement to an effective date earlier than December 
21, 2006, for the grant of an evaluation of 10 percent 
disabling for a left ankle condition.


ATTORNEY FOR THE BOARD

S. Flot, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February 1975 to 
February 1979.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a September 2007 rating decision from 
the Department of Veterans Affairs (VA) Regional Office (RO) 
in San Juan, the Commonwealth of Puerto Rico.


FINDINGS OF FACT

1.  In an April 1996 rating decision, the RO denied an 
application to reopen a claim of service connection for a low 
back condition.  The Veteran was notified of the decision and 
of his appellate rights, but did not appeal that 
determination.

2.  The evidence received subsequent to the April 1996 rating 
decision does not raise a reasonable possibility of 
substantiating the claim of entitlement to service connection 
for a low back condition.

3.  The Veteran's left ankle condition was not manifested by 
no more than moderate limitation of motion of the ankle.

4.  The Veteran did not seek a compensable evaluation for his 
left ankle condition prior to his claim filed on December 21, 
2006.

5.  There is no medical evidence showing a factually 
ascertainable increase of the Veteran's left ankle condition 
during the year prior to December 21, 2006.


CONCLUSIONS OF LAW

1.  The RO's April 1996 decision denying the Veteran's 
application to reopen his claim of entitlement to service 
connection for a back condition is final.  38 U.S.C.A. § 7105 
(West 2002); 38 C.F.R. §§ 3.104(a), 20.302(a), 20.1103 
(2009).

2.  New and material evidence has not been received to reopen 
a claim of entitlement to service connection for a low back 
condition.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 
(2009).

3.  The criteria for a rating in excess of 10 percent 
disabling for a left ankle condition have not been met.  38 
U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.6, 
4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 
5010-5271 (2009).

4.  The criteria for the assignment of an effective date 
earlier than December 21, 2006, for the grant of an 
evaluation of 10 percent disabling for a left ankle condition 
have not been met.  38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. 
§§ 3.1(p), 3.155(a), 3.400, 4.71a, Diagnostic Code 5010-5271 
(2009).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 
(VCAA), VA has a duty to notify and a duty to 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, 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; and (3) that the claimant is expected to provide.  
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).

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United 
States Court of Appeals for Veterans Claims held that 
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) also require 
VA 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 
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 the context of claims to reopen, the Court has clarified 
that VA must notify a claimant of both the evidence and 
information that is necessary to reopen the claim and the 
evidence and information that is necessary to establish 
entitlement to the underlying claim for the benefit that is 
being sought.  Kent v. Nicholson, 20 Vet. App. 1 (2006).  To 
satisfy this requirement, the Secretary is required to look 
at the bases for the denial in the prior decision and to 
provide the claimant with a notice letter that describes what 
evidence would be necessary to substantiate those elements 
required to establish service connection that were found 
insufficient in the previous denial.

With respect to increased rating claims, VA must provide the 
claimant with generic notice of the evidence needed to 
substantiate the claim, namely evidence demonstrating a 
worsening or increase in severity of the disability and the 
effect that worsening has on employment, and of how 
disability ratings and effective dates are assigned.  
Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).

Prior to the initial AOJ decision in this matter, the Veteran 
was notified by letter dated in January 2007 of the evidence 
required to reopen his claim of entitlement to service 
connection for a low back condition, the elements for 
establishing service connection, which elements were found 
insufficient when his claim previously was denied, and the 
evidence not of record necessary to substantiate those 
elements.  This letter also notified him of the evidence 
required to establish entitlement to an increased evaluation 
and the evidence not of record necessary to substantiate his 
claim for an increased evaluation for his left ankle 
condition.  Further notification was provided with respect to 
the Veteran's and VA's respective duties for obtaining 
evidence regarding both claims as well as how VA determines 
disability ratings and effective dates.  As this letter fully 
addressed all notice elements, the Board finds that VA's duty 
to notify has been satisfied.

VA also has a duty to assist the Veteran in the development 
of his claim.  This duty includes assisting the Veteran in 
the procurement of service treatment records and other 
pertinent treatment records as well as providing a medical 
examination or opinion when necessary.  38 U.S.C.A. § 5103A; 
38 C.F.R. § 3.159.

VA has obtained the Veteran's service treatment records, VA 
treatment records, and Federal Bureau of Prisons treatment 
records.  The Veteran was afforded a VA medical examination 
with respect to his claim of entitlement to an increased 
evaluation for his left ankle condition in March 2007. 
 However, no VA medical examination or opinion was provided 
with respect to the Veteran's application to reopen a claim 
of entitlement to service connection for a low back 
condition.  The Board notes that VA does not have a duty to 
provide such an examination or opinion if a claim is not 
reopened.  See 38 U.S.C.A. § 5103A(f); 38 C.F.R. 
§ 3.159(c)(4)(C)(iii); see also Paralyzed Veterans of America 
v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 
2003).  As discussed below, there is no new and material 
evidence to merit reopening this claim.  A medical 
examination or opinion thus is not warranted.

Significantly, the Veteran has not identified, and the record 
does not otherwise indicate, any additional existing evidence 
necessary for a fair adjudication of the claim that has not 
been obtained.  Hence, the Board finds that all necessary 
development has been accomplished, and no further assistance 
to the Veteran is required to fulfill VA's duty to assist.  
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).  Therefore, appellate review may proceed without 
prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. 
App. 384 (1993).

II.  Application to Reopen

The Veteran seeks service connection for a low back 
condition.  In an April 1996 rating decision, the RO denied 
service connection for this condition because the evidence 
did not establish that it was incurred in or related to 
service.  The pertinent evidence of record at the time of the 
decision included the Veteran's service treatment records and 
treatment records from the Veteran's Hospital in San Antonio, 
Texas..

The Veteran was notified of the RO's April 1996 rating 
decision and of his appellate rights in April 1996.  He did 
not appeal the decision, and as such it became final based on 
the evidence then of record.  38 U.S.C.A. § 7105; 38 C.F.R. 
§§ 3.104(a), 3.160(d), 20.302(a), 20.1103.  However, the 
Secretary shall reopen and readjudicate a final decision that 
has been disallowed if new and material evidence pertaining 
to the claim is submitted.  38 U.S.C.A. § 5108; Manio v. 
Derwinski, 1 Vet. App. 140, 145 (1991).

New evidence means evidence not previously submitted to 
agency decision makers.  38 C.F.R. § 3.156(a).  Material 
evidence means evidence that, by itself or when considered 
with previous evidence of record, relates to an unestablished 
fact necessary to substantiate the claim.  Id.  New and 
material evidence can be neither cumulative nor redundant of 
the evidence of record at the time of the last prior final 
denial of the claim sought to be reopened and must raise a 
reasonable possibility of substantiating the claim.  Id.  For 
the purpose of determining whether a case should be reopened, 
the credibility of the evidence is presumed.  Justus v. 
Principi, 3 Vet. App. 510, 513 (1992).

Subsequent to the April 1996 rating decision, treatment 
reports related to the Veteran's low back were associated 
with the claims file.  These included treatment records from 
the Federal Bureau of Prisons dated from January 1997 to 
November 2006 and VA treatment records from the VA Medical 
Center (VAMC) in San Juan, the Commonwealth of Puerto Rico, 
and from the VA Outpatient Center (OPC) in Ponce, the 
Commonwealth of Puerto Rico, dated from December 2006 to May 
2009.

The  Federal Bureau of Prisons records reveal that the 
Veteran reported "lower back surgery - service-connected" 
in January 1997.  He complained of chronic low back pain in 
July 1997.  X-rays of his back showed upper lumbar 
dextroscoliosis with mild rotatory component and osteopenia 
as well as spondylosis with narrowing of L5-S1 intervertebral 
disc space level as seen in degenerative disc disease.  The 
Veteran reported recurrent back pain in December 1998 and low 
back pain for two years as the result of an injury 21 years 
ago in February 1999.  In December 1999, he again complained 
of, and was diagnosed with, low back pain.  He also noted a 
history of recurrent back pain in January 2000.

The Veteran's VA treatment records reflect a similar story.  
After a routine medical evaluation in July 2008, the Veteran 
was diagnosed with recurrent low back pain.  X-rays conducted 
in August 2008 revealed paravertebral muscle spasm, 
degenerative changes greater at the lower lumbar levels, 
degenerative disc disease at L4-L5 and L5-S1, and 
thoracolumbar levoscoliosis and lumbar dextroscoliosis.  The 
Veteran continued to complain of recurrent low back pain in 
September 2008, December 2008, and January 2009.  In May 
2009, he reported intermittent back pain.  Based on the 
results of magnetic resonance imaging in March 2009, he was 
diagnosed with mild bulging disc at L2-L3 indenting the 
thecal sac, posterior bulging disc and hypertrophy of 
ligamentus flavum at L4-L5 with spinal canal stenosis and 
left foraminal stenosis, degenerative disc disease and 
narrowing of the intervertebral space at L5-S1, and moderate 
levoscoliosis.

The Veteran's Federal Bureau of Prisons and VA treatment 
records are new in that they have not been considered as part 
of a previous adjudication of the Veteran's claim.  However, 
they are not material.  The treatment records consist largely 
of his complaints of low back pain and objective test results 
reflecting numerous abnormalities in his low back.  Absent is 
any competent evidence that the Veteran's low back condition 
was incurred in or related to service.  As the new evidence 
does not address the elements that were found insufficient in 
the previous denial of the Veteran's claim, the Board finds 
that it does not raise a reasonable possibility of 
substantiating the Veteran's claim.  Having determined that 
the above considered evidence is new but not material 
pursuant to 38 C.F.R. § 3.156(a), the claim of entitlement to 
service connection for a low back condition cannot be 
reopened.

III.  Higher Evaluation

The Veteran seeks an evaluation in excess of 10 percent 
disabling for a left ankle condition.  He argues that this 
condition is more severe than contemplated by a 10 percent 
disability rating.

Disability evaluations are based upon VA's Schedule for 
Rating Disabilities as set forth in 38 C.F.R. Part 4.  
Separate Diagnostic Codes identify various disabilities and 
the criteria for specific ratings for the disabilities.  The 
percentage ratings represent as far as practicably can be 
determined the average impairment in earning capacity due to 
a service-connected disability.  38 U.S.C.A. § 1155.  The 
evaluation assigned is determined by comparing the extent to 
which a Veteran's service-connected disability impairs his 
ability to function under the ordinary conditions of daily 
life, as demonstrated by the Veteran's symptomatology, with 
the schedule of ratings.  Id.; 38 C.F.R. § 4.10; see 
Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Disabilities 
must be reviewed in relation to their history.  38 C.F.R. § 
4.1.  Examination reports must be interpreted, and if 
necessary reconciled, into a consistent picture so that the 
evaluation rating may accurately reflect the elements of 
disability present.  38 C.F.R. § 4.2.  If two disability 
ratings are potentially applicable, the higher ratings will 
be assigned if the disability picture more nearly 
approximates the criteria required for that ratings.  
Otherwise, the lower rating will be assigned.  38 C.F.R. 
§ 4.7.  However, any reasonable doubt regarding the degree of 
disability will be resolved in favor of the Veteran.  
38 C.F.R. § 4.3.

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.  
See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, 
staged ratings are appropriate in any increased rating claim 
if distinct time periods with different ratable symptoms can 
be identified.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

Pyramiding, the evaluation of the same disability or the same 
manifestation of a disability under different Diagnostic 
Codes, is to be avoided.  38 C.F.R. § 4.14.  It is possible, 
however, for a Veteran to have separate and distinct 
manifestations attributable to the same injury, which would 
permit a rating under several Diagnostic Codes.  The critical 
element permitting the assignment of multiple ratings under 
several Diagnostic Codes is that none of the symptomatology 
for any one of the disorders is duplicative or overlapping 
with the symptomatology of the other disorder.  Esteban v. 
Brown, 6 Vet. App. 259, 261-62 (1994).

Disability of the musculoskeletal system is primarily the 
inability, due to damage or infection in the parts of the 
system, to perform the normal working movements of the body 
with normal excursion, strength, speed, coordination, and 
endurance.  38 C.F.R. § 4.40.  Diagnostic Codes predicated on 
limitation of motion do not prohibit consideration of a 
higher rating for flare ups or for functional loss due to 
weakness, excess fatigability, incoordination, or pain on 
use.  38 C.F.R. § 4.45; see also DeLuca v. Brown, 8 Vet. App. 
202, 206 (1995).  A finding of functional loss due to pain 
must be supported by adequate pathology and evidenced by 
visible behavior, such as facial expression or wincing, of 
the Veteran undertaking the motion.  38 C.F.R. §§ 4.40, 4.59.

The Secretary shall give the benefit of the doubt to the 
Veteran when there is an approximate balance of positive and 
negative evidence regarding any issue material to the 
determination of a matter.  38 U.S.C.A. § 5107(b); 38 C.F.R. 
§ 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 
(1990).

The Veteran's service-connected left ankle condition 
currently is rated under 38 C.F.R. § 4.71a, Diagnostic Code 
5010-5271.  Hyphenated Diagnostic Codes are used when a 
rating for a particular disability under one Diagnostic Code 
is based upon rating of the residuals of that disability 
under another Diagnostic Code.  38 C.F.R. § 4.27.  The first 
four digits, 5010 in this case, is the Diagnostic Code for 
the disability.  Id.  The second four digits after the 
hyphen, 5271 in this case, is the Diagnostic Code used to 
rate the residuals of that disability.  Id.

Diagnostic Code 5010 pertains to the disability of arthritis 
due to trauma.  Pursuant to this provision, traumatic 
arthritis is rated as degenerative arthritis.  38 C.F.R. 
§ 4.71a, Diagnostic Code 5010.  Degenerative arthritis is the 
subject of Diagnostic Code 5003.  Under Diagnostic Code 5003, 
evaluations for degenerative arthritis established by X-ray 
findings shall be rated on the basis of limitation of motion 
under the appropriate Diagnostic Codes for the specific joint 
or joints involved.  If, however, rating on this basis 
results in a noncompensable evaluation, the Veteran shall be 
awarded a 10 percent evaluation for each major joint or group 
of minor joints affected by limitation of motion, to be 
combined but not added.  Limitation of motion affecting the 
joint or group of joints must be objectively confirmed by 
findings such as swelling, muscle spasm, or satisfactory 
evidence of painful motion.  Moreover, in the absence of any 
limitation of motion, X-ray evidence showing involvement of 2 
or more major joints or 2 or more minor joint groups warrants 
a 10 percent evaluation, and the same with occasional 
incapacitating exacerbations warrants a 20 percent 
evaluation.  38 C.F.R. § 4.130, Diagnostic Code 5003.

Diagnostic Code 5271 addresses the residuals of limited 
motion of the ankle.  Moderate limitation of motion of the 
ankle warrants a 10 percent rating while marked limitation of 
motion of the ankle warrants the maximum 20 percent rating.  
38 C.F.R. § 4.71a, Diagnostic Code 5271.

The words "moderate" and "marked" as used in this and 
other Diagnostic Codes are not defined in the Schedule for 
Rating Disabilities.  Rather than applying a mechanical 
formula, the Board must evaluate all of the evidence to 
arrive at an equitable and just decision.  38 C.F.R. § 4.6.  
Of assistance in rendering such a decision here is the fact 
that normal range of motion for the ankle is from 0 degrees 
to 20 degrees dorsiflexion and from 0 degrees to 45 degrees 
plantar flexion.  38 C.F.R. § 4.71, Plate II.

Several other Diagnostic Codes, which provide for higher 
ratings then presently assigned, are potentially applicable 
to the Veteran's left ankle condition.  Pursuant to 
Diagnostic Code 5270, which concerns ankylosis of the ankle, 
a 20 percent rating requires ankylosis in plantar flexion 
less than 30 degrees.  Ankylosis in plantar flexion between 
30 degrees and 40 degrees, or ankylosis in dorsiflexion 
between 0 degrees and 10 degrees warrants a 30 percent 
disability rating.  A 40 percent disability rating is 
assigned for ankylosis in plantar flexion more than 40 
degrees or ankylosis in dorsiflexion at more than 10 degrees 
or with abduction, adduction, inversion, or eversion 
deformity.  38 C.F.R. § 4.71a, Diagnostic Code 5270.  
Diagnostic Code 5272 addresses ankylosis of the subastragalar 
or tarsal joint.  Ankylosis of either of these joins in poor 
weight-bearing position warrants a 20 percent disability 
rating.  38 C.F.R. § 4.71a, Diagnostic Code 5272.  Malunion 
of the os calcis or astragalus resulting in marked deformity 
warrants a 20 percent disability rating under Diagnostic Code 
5273.  38 C.F.R. § 4.71a, Diagnostic Code 5273.  Finally, 
Diagnostic Code 5274 provides for a 20 percent disability 
rating for an astragalectomy operation.  38 C.F.R. § 4.71a, 
Diagnostic Code 5274.

Federal Bureau of Prisons records dated from January 1997 to 
November 2006 document several instances of edema in the 
Veteran's left lower extremity.  The last such instance 
occurred in September 2001.

Treatment records dated between December 2006 and March 2007 
from the VAMC in San Juan, the Commonwealth of Puerto Rico, 
and from the VA OPC in Ponce, the Commonwealth of Puerto 
Rico, list an ankle injury as one of the Veteran's health 
issues.

The Veteran was afforded a VA examination in March 2007.  He 
reported left ankle pain, tenderness, instability, weakness, 
and the inability to perform regular sports activities or 
walk or stand for prolonged periods.  He further reported 
moderate weekly flare-ups in which he experiences numbness 
lasting one to two days.  However, he denied stiffness, 
episodes of dislocation or subluxation, and giving way in his 
left ankle.  Upon examination, the Veteran's gait was 
antalgic and there was evidence of abnormal weight bearing.  
No constitutional symptoms of arthritis, incapacitating 
episodes of arthritis, or inflammatory arthritis were noted 
with respect to the left ankle.  There also was no evidence 
of left ankle ankylosis, loss of a bone or part of a bone, or 
vargus or valgus deformity.  The Veteran's range of motion in 
his left ankle was from 0 degrees to 15 degrees dorsiflexion 
and from 0 degrees to 40 degrees plantar flexion.  He 
experienced pain only at 15 degrees dorsiflexion and 40 
degrees plantar flexion.  Repetition produced no additional 
limitation of motion or pain.  X-rays revealed mild soft 
tissue edema of the left ankle.  The diagnosis was residual 
left ankle sprain with instability.

VA treatment records from the aforementioned facilities dated 
between March 2007 and May 2009 note an ankle injury in 
general and more specifically an old left ankle fracture 
among the Veteran's health issues.

In light of the evidence of record, the Board finds that 
entitlement to an evaluation in excess of 10 percent 
disabling for a left ankle condition is not warranted under 
Diagnostic Code 5010-5271.  The Veteran's left ankle did not 
manifest marked limitation of motion at any time during the 
period on appeal.  In March 2007, the Veteran's dorsiflexion 
was limited to 15 degrees and his plantar flexion was limited 
to 40 degrees.  Given that normal dorsiflexion is to 20 
degrees and normal plantar flexion is to 45 degrees, this 
evidence reveals that the Veteran experienced a 5 degree loss 
in both dorsiflexion and plantar flexion.  Such limitation of 
motion can be characterized equitably and justly as moderate 
at best.

Consideration has been given to whether an evaluation in 
excess of 10 percent disabling for the Veteran's left ankle 
condition is warranted for flare ups or for functional loss 
due to weakness, excess fatigability, incoordination, or pain 
on movement.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 
Vet. App. 202.  The evidence includes the Veteran's 
complaints of moderate weekly flare-ups of numbness lasting 
one to two days as well as weakness, instability, tenderness, 
and pain in his left ankle.  While pain was noted during his 
March 2007 VA examination at the extreme of the Veteran's 
limited range of dorsiflexion and plantar flexion, no 
additional pain or range of motion loss was noted following 
repeated testing.  The Board thus finds that any flare ups or 
functional loss due to painful movement of the Veteran's left 
ankle are encompassed in the currently assigned 10 percent 
disability rating.

Consideration also have been given to whether the Veteran is 
entitled to an evaluation in excess of 10 percent disabling 
for a left ankle condition under any other Diagnostic Code.  
However, there is no basis for an evaluation under Diagnostic 
Codes 5270 and 5272, as the Veteran does not manifest 
ankylosis of the ankle or ankylosis of the subastragalar or 
tarsal joints.  Diagnostic Code 5273 also is not relevant 
because there is no evidence of malunion of the os calcis or 
astragalus.  Nor is there evidence that the Veteran underwent 
an astragalectomy, rendering Diagnostic Code 5274 
inapplicable.

The Board acknowledges the Veteran's assertion that he 
experiences impairment as a result of his left ankle 
condition.  Specifically, the Veteran has reported pain, 
tenderness, edema, instability and weakness in his left 
ankle.  He reports that he is unable to perform regular 
sports activities or walk or stand for prolonged periods.  
The Veteran, as a lay person, is competent to provide such 
evidence of how his left ankle condition affects his everyday 
life.  See Layno v. Brown, 6 Vet. App. 465, 469-470 (1994) 
(finding lay testimony competent when it concerns features or 
symptoms of injury or illness).  While the Board finds the 
Veteran credible, VA must consider only the rating criteria 
and other applicable regulations to rate a disability.  
Massey v. Brown, 7 Vet. App. 204, 208 (1994).  As discussed 
above, the evidence does not show that the Veteran is 
entitled to a rating in excess of 10 percent disabling for 
his left ankle condition.

In sum, the Board finds that continuance of the 10 percent 
disability rating for the Veteran's left ankle condition is 
appropriate in this case.  Staged ratings are not warranted, 
as there appears to be no identifiable period on appeal 
during which the this condition manifested symptoms meriting 
a disability rating in excess of 10 percent.  The 
preponderance of the evidence therefore is against the 
Veteran's claim for a higher rating, and the benefit of the 
doubt rule does not apply.  38 U.S.C.A. § 5107(b); see 
Gilbert, 1 Vet. App. at 49.

The above determination continuing the Veteran's 10 percent 
disability rating for a left ankle condition is based on 
application of pertinent provisions of the VA's Schedule for 
Rating Disabilities.  The Board notes that there is no 
indication that this condition reflects so exceptional or so 
unusual a disability picture as to warrant the assignment of 
a compensable evaluation on an extraschedular basis.  See 38 
C.F.R. § 3.321(b).  The Veteran has identified any compelling 
exceptional or unusual disability factors.  The evidence of 
record also does not suggest any such factors.  In this 
regard, the Board observes that there is no showing that the 
Veteran's left ankle condition has manifested symptoms not 
contemplated by the above referenced Diagnostic Codes.  There 
also is no showing that it has resulted in marked 
interference with employment.  In this regard, the Board 
acknowledges that the examiner who conducted the March 2007 
VA examination opined that the Veteran's left ankle condition 
has significant effects on his occupational activities.  He 
referenced pain, decreased mobility, decreased strength, 
problems with lifting and carrying, lack of stamina, and 
problems lifting and carrying.  He also opined, however, that 
the result would be the Veteran's assignment to different 
duties.  The Veteran further indicated that he was retired 
and currently employed part-time as a telemarketer.  Finally, 
there is no showing that this disability has required 
frequent, let alone any, periods of hospitalization.  In the 
absence of evidence of these factors, the criteria for 
submission for assignment of an extraschedular rating are not 
met.  Remanding this claim to the RO for referral to and 
assignment of an extraschedular rating by the Under Secretary 
for Benefits or Director of the Compensation and Pension 
Service thus is not warranted.  See Thun v. Peake, 22 Vet. 
App. 111, 115-16 (2008); 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).

IV.  Earlier Effective Date

The Veteran seeks an effective date earlier than December 21, 
2006, for the grant of an evaluation of 10 percent disabling 
for a left ankle condition.  He has not identified the 
particular date he believes this evaluation should be 
effective as of, or specified why he believes he is entitled 
to an earlier effective date for it.

The assignment of effective dates is governed by 38 U.S.C.A. 
§ 5110 and 38 C.F.R. § 3.400.  Generally, the effective date 
of an award cannot be earlier than the date of receipt of the 
application therefor.  38 U.S.C.A. § 5110(a).  The VA 
regulation applicable to effective dates for awards of 
increased compensation thus provides that the effective date 
is the date of receipt of the claim or the date entitlement 
arose, whichever is later.  38 C.F.R. § 3.400(o)(1).

An exception to this general rule exists, however, for awards 
of increased compensation in certain circumstances.  If the 
evidence demonstrates that an increase in disability occurred 
within the one year period preceding the date of receipt of a 
claim for increased compensation, the increase is effective 
as of the earliest date the increase in disability was 
factually ascertainable.  38 U.S.C.A. § 5110(b)(2); 38 C.F.R. 
§ 3.400(o)(2); Dalton v. Nicholson, 21 Vet. App. at 31-32; 
Harper v. Brown, 10 Vet. App. 125 (1997); VAOPGCPREC 12-98 
(1998).

VA regulations define "application" or "claim" as a formal 
or informal communication in writing requesting a 
determination of entitlement or evidencing a belief in 
entitlement, to a benefit.  38 C.F.R. § 3.1(p).  An informal 
claim is further defined as any communication or action from 
a Veteran or his duly authorized representative indicating an 
intent to apply for one or more benefits under the laws 
administered by the VA.  38 C.F.R. § 3.155(a).  Such informal 
claim must identify the benefit sought.  Id.  Upon receipt of 
an informal claim, if a formal claim has not been filed, an 
application form will be forwarded to the claimant for 
execution.  If received within one year from the date it was 
sent to the Veteran, it will be considered filed as of the 
date of receipt of the informal claim.  Id.

VA received a claim of entitlement to service connection for 
a left ankle condition from the Veteran in February 1979.  
The RO granted service connection and assigned a 
noncompensable evaluation for this condition in a May 1979 
rating decision.  In February 1996, the Veteran filed a claim 
of entitlement to a compensable evaluation for his left ankle 
condition.  His noncompensable evaluation was continued in an 
April 1996 RO rating decision.  The Veteran's next 
communication with VA about his left ankle condition did not 
come until December 21, 2006, the date VA received his second 
claim of entitlement to a compensable evaluation for this 
condition.  In a September 2007 rating decision, the RO 
granted this claim and by awarding the Veteran a 10 percent 
disability evaluation for this condition effective December 
21, 2006.

In light of these facts and the evidence and law set forth 
above in Section III, the Board finds that there is no legal 
authority to assign an effective date earlier than December 
21, 2006, for the grant of an increased evaluation of 10 
percent disabling for the Veteran's left ankle condition.  No 
treatment records regarding this condition exist for the year 
preceding December 21, 2006.  The record therefore does not 
establish that a factually ascertainable increase in the 
Veteran's left ankle condition occurred during this period.  
As such, the exception to the general rule that the effective 
date of an award cannot be earlier than the date of receipt 
of the claim for such award does not apply.

On December 21, 2006, VA received the Veteran's claim for 
increased compensation for his left ankle condition.  There 
is no indication in the claims file that the Veteran 
attempted to file a formal or informal increased compensation 
claim for this condition prior to this date.  VA therefore is 
precluded as a matter of law from granting an effective date 
earlier than December 21, 2006.  In assigning the Veteran a 
10 percent evaluation for his left ankle condition effective 
as of this date, the RO has already assigned the earliest 
possible effective date.  The Veteran's claim of entitlement 
to an effective date earlier than December 21, 2006, for the 
grant of an increased evaluation of 10 percent disabling for 
a left ankle condition accordingly must be denied.


ORDER

New and material evidence not having been received, the 
application to reopen the claim of entitlement to service 
connection for a low back condition is denied.

Entitlement to an evaluation in excess of 10 percent 
disabling for a left ankle condition is denied.

Entitlement to an effective date earlier than December 21, 
2006 for the grant of an evaluation of 10 percent disabling 
for a left ankle condition is denied.



____________________________________________
STEVEN D. REISS
Acting Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs