Citation Nr: 1014331 Decision Date: 04/15/10 Archive Date: 04/29/10 DOCKET NO. 07-26 786 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a left ankle disorder. 2. Entitlement to an increased initial rating for residuals, right tibial stress fracture, currently evaluated as 10 percent disabling. 3. Entitlement to an increased initial rating for margarine headaches, currently evaluated as 10 percent disabling. 4. Entitlement to an increased initial rating for dermatitis, currently evaluated as 10 percent disabling. 5. Entitlement to an increased initial rating for right ankle sprain, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The Veteran served on active duty from January 2002 to June 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Atlanta, Georgia, Department of Veterans Affairs (VA) Regional Office (RO). By rating decision of July 2007, service connection for migraine headaches and service connection for seborrheic dermatitis was granted and evaluated as 10 percent disabling, respectively, effective June 16, 2005. In August 2007, the Veteran stated that she was appealing all issues that were rated which included her, right ankle sprain, migraine headaches, and dermatitis. The Veteran has expressed disagreement in the level of disability granted, however, no statement of the case (SOC) has been issued. Therefore, a remand of those issues is required. Manlincon v. West, 12 Vet.App. 238, 240 (1999). The issues of entitlement to an initial increased rating for right ankle sprain, migraine headaches, and seborrheic dermatitis being remanded are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. No left ankle disorder has been shown. 2. The residuals of a right tibial stress fracture are productive of only slight knee disability; moderate knee or ankle disability has not been shown. CONCLUSIONS OF LAW 1. A left ankle disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2009). 2. The criteria for an increased initial rating higher than 10 percent for residuals, right tibial stress fracture have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.40, 4.41, 4.45, 4.71, 4.71(a), Diagnostic Code (DC) 5262 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran asserts that service-connected residuals, right tibial stress fracture are more severe than the current evaluation reflects. She complains of intermittent pain at the right tibia area, with worsening with lifting, carrying, and moving around quickly. She also relates that she has left ankle swelling and pain which had its onset during active service. The Board has reviewed all of the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the analysis below will focus specifically on what the evidence shows, or fails to show. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131 (West 2002). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2009). However, continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (2009). Further, service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2009). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2009). Separate diagnostic codes identify the various disabilities. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2009). As the Veteran has perfected an appeal as to the assignment of an initial rating following the initial award of service connection, the Board must evaluate all the evidence of record reflecting the severity of the Veteran's disability from the date of grant of service connection to the present. Fenderson v. West, 12 Vet. App. 119, 126 (1999). This could result in staged ratings, i.e. separate ratings for different time periods. Id. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2009). Service Connection The Veteran asserts that she has a left ankle disorder based upon service incurrence. She complains of swelling and pain in her left ankle that has been ongoing since service. Service medical records are devoid of findings, treatment, or diagnoses related to the left ankle. In February and April 2002, there were treatment records which showed that the Veteran complained of pain and swelling from her knees to her ankles. No diagnosis related to this complaint was made. After service, the Veteran underwent a VA examination in June 2007. She made complaints of residuals right ankle sprain with residual pain. No complaints related to the left ankle were made. Physical examination of the left ankle showed no signs of edema, effusion, weakness, tenderness, redness, heat, abnormal movement, subluxation, or guarding movement. There was also no deformity shown. The range of motion of the left ankle joint showed dorsiflexion of 20 degrees and plantar flexion of 45 degrees. The joint function was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. Neurological examination revealed left ankle jerk of 2+. There was no diagnosis of a disability of the left ankle. Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. See 38 U.S.C.A. § 1110 (West 2002); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service- connected disease or injury to cases where such incidents have resulted in a disability). "In the absence of proof of a present disability there can be no valid claim." See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board has also considered the Veteran's statements asserting that she has a bilateral ankle disorder since active duty service. While she is competent to report symptoms as they come to her through her senses (such as left ankle pain), a chronic ankle disorder is not the types of disorder that a lay person can provide competent evidence on questions of etiology or diagnosis. Such competent evidence has been provided by the medical personnel who have examined the Veteran during the current appeal and by medical evidence obtained and associated with the claims file. None of these findings show that the Veteran has a chronic left ankle disorder. Further, the Veteran has not presented any evidence except her own claim that she has a left ankle disorder that was caused in service. Although there were two occasions in service that she complained of bilateral pain from her knees to her ankles, there was never any diagnosis made related to a left ankle disorder. The medical evidence since service shows no present left ankle disability. Here, the Board attaches the greater probative weight to those clinical findings than to the Veteran's statements and assertions. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). In sum, the evidence of record finds that the Veteran does not have a left ankle disorder. Accordingly, the appeal is denied. Initial Increased Rating 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. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45 (2009). The Court has held that the RO must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The Board notes that the guidance provided by the Court in DeLuca must be followed in adjudicating claims where a rating under the diagnostic codes governing limitation of motion should be considered. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Actually painful, unstable, or malaligned joints, due to healed injury, are as entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See 38 C.F.R. § 4.59 (2009). Under Diagnostic Code 5262, pertaining to "impairment of tibia and fibula," a 10 percent rating is warranted for malunion with slight knee or ankle disability. A 20 percent rating contemplates malunion with moderate knee or ankle disability, and a 30 percent rating is warranted for malunion with marked knee or ankle disability. A 40 percent rating is warranted for nonunion with loose motion, requiring brace. The Veteran underwent a VA examination in June 2007. She related that the condition had existed since 2002, since boot camp. She stated that she had suffered from pain located at the right tibia for 5 years and that the pain was constant. She also related that on a scale of 1 to 10, her worst pain was an 8. The pain could be elicited by activity and prolonged standing. It was relieved by rest and medication. At the time of pain, she was able to function with medication. The bone condition had never been infected. She was not receiving any treatment for her condition. Physical examination of the tibia and fibula revealed normal findings. The right knee showed no signs of edema, effusion, weakness, tenderness, heat, abnormal movement, subluxation, or guarding of movement. The range of motion of the right knee showed flexion of 140 degrees, extension of 0 degrees. The knee joint was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. The anterior and posterior ligaments stability test of the right knee was within normal limits. The medial and lateral collateral ligaments stability test was within normal limits. The right ankle showed signs of tenderness and pain with toe walking. However, there were no signs of edema, effusion, weakness, redness, heat, abnormal movement, guarding of movement and subluxation. Examination of the right ankle showed no sign of deformity. Range of right ankle motion revealed dorsiflexion of 20 degrees and plantar flexion of 45 degrees. The joint function was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. Neurological function of the lower extremities showed motor function and sensory function were within normal limits. The right lower extremity revealed ankle and knee joint of 2+, respectively. The right tibia, fibula, and ankle x-rays were within normal limits. The diagnosis was right tibia stress fracture with residual pain from medial tibial stress syndrome. The subjective factors were pain with prolonged standing, walking, and running. The objective factors were tenderness along the medial tibial border and medial metaphysis. The right ankle sprain showed subjective factors of pain with prolonged walking, running, and standing. The objective factors were tenderness over the anterior talofibular ligament and anterior lateral pain with toe walk. The Veteran underwent an examination in August 2008 at the Thomasville Orthopedic Center. She presented with intermittent pain that had been ongoing for some time. She related that if she was on her feet for any period of time, she had substantial pain which particularly radiated down the medial aspect of her foot. She also had intermittent knee pain on the medial joint line. Physical examination revealed tenderness to palpation along the medial joint line. Range of motion was full. She had no substantial knee effusion. She had mild tenderness to palpation along the periosteum at the mid tibia. There was no swelling or any other abnormality shown. X-ray of the knee showed normal bony abnormality. She was injected in her right knee with Marcaunem, Lidocaine, and Depo-Medrol. The Veteran underwent a VA examination in June 2009. She reported a history of being diagnosed with a stress fracture in boot camp. She complained of intermittent pain at the right tibia area, worsening with lifting, carrying, jogging, or moving around quickly. Her current treatment was noted to be to avoid running and jumping on hard surfaces, use of Naprosen as needed, and hot packs as needed. There was no history of hospitalization or surgery for this disability. No assistive device was needed for walking and it had no affect on motion of a joint. There were flare-ups noted to occur every two to three weeks of moderate severity. The flare-ups were controlled with pain medication and decreased mobility. Significant physical findings showed mild tenderness at the distal right tibia anteriorly to palpation. There was no objective evidence of redness, swelling or dislocation/abnormal bone formation at the right anterior shin area. The Veteran related that she was employed as a secretary for 1 to 2 years, she was employed full time and she had lost no time from work as a result of her disability. She also related that since her job was sedentary, she was able to work through flare-ups. She was assigned different duties when her disability presented a problem. The Board has also considered the Veteran's statements that her residuals, right tibial stress fracture is worse. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39- 40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to her through her senses. Layno, 6 Vet. App. at 470. She is not, however, competent to identify a specific level of disability of her right tibial disability according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's aforementioned disability has been provided by the medical personnel who have examined her during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings address the criteria under which the disability is evaluated. A thorough review of the record reveals that the Veteran is appropriately evaluated with slight knee or ankle disability, warranting no more than a 10 percent evaluation. The Board has considered that she has complained of intermittent pain in her right ankle and or knee. She has received an injection for pain in the knee on one occasion during this appellate period and she uses Naproxen for pain as needed. However, her ankle range of motion has been within normal limits. She used no assistive devices and her condition was controlled with pain medication and decreased motion. The objective findings on physical examination have been minimal. As such, the Board finds these records to be more probative than the Veteran's subjective evidence of complaints of increased symptomatology. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (interest in the outcome of a proceeding may affect the credibility of testimony). Overall, moderate knee or ankle disability, necessary for a 20 percent rating has not been shown. The Board finds that the Veteran's right and left knee disability have not manifested symptomatology that more nearly approximates the criteria required for a rating in excess of 10 percent. In sum, after a careful review of the evidence of record, the Board finds that the benefit of the doubt rule is not applicable and the appeal is denied. Next, the Board will consider whether referral for an extraschedular evaluation is warranted. The question of an extraschedular rating is a component of a claim for an increased rating. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). Under the provisions of 38 C.F.R. § 3.321(b)(1) (2009), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." Id. Therefore, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). In this case, there is no evidence of marked interference with the Veteran's employment or frequent periods of hospitalization that indicate that referral for an extraschedular evaluation is warranted. Specifically, there is no evidence of hospitalization as a result of her aforementioned service-connected right tibial fracture and no documentation that the residuals specifically affect her ability to be employed. The Veteran is currently employed and indicates that her employment as a secretary has not been affected by her tibial disability. She asserts she has missed no days because of her disability, and that she is able to work through her flare-ups of pain with pain medication and decrease in mobility. Moreover, the rating criteria reasonably describes the Veteran's disability level and symptomatology, and provides for higher ratings for additional or more severe symptoms than currently shown by the evidence. Thus, her disability picture is contemplated by the rating schedule, and the assigned schedular evaluations are, therefore, adequate. Consequently, referral to the Under Secretary for Benefits or the Director, Compensation and Pension Service, under 38 C.F.R. § 3.321 is not warranted for her service-connected right tibial stress fracture. In sum, the competent evidence does not show that the Veteran's symptomatology of her right tibial stress fracture warrants an increased rating for any period on appeal. For these reasons, the Board finds that the Veteran's disability does not meet the criteria for a rating in excess of 10 percent during any period of the increased rating claim. Therefore, the appeal is denied. Finally, as provided for by the Veterans Claims Assistance Act of 2000 (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 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). Proper notice from VA must inform the claimant of any information and medical or lay 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (2) 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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in January 2006 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed her of what evidence was required to substantiate the claims and of her and VA's respective duties for obtaining evidence. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. With respect to the Dingess requirements, in July 2008, the RO provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. With that letter, the RO effectively satisfied the remaining notice requirements with respect to the issues on appeal. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002 & Supp. 2009); 38 C.F.R. § 3.159 (2009). In determining whether a medical examination should be provided or medical opinion obtained, there are four factors to consider: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing an in-service event, injury, or disease, or manifestations during the presumptive period; (3) an indication that the disability or symptoms may be associated with service; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. With respect to the third factor, the types of evidence that "indicate" that a current disorder "may be associated" with service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). After a careful review of the file, 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). First, the Veteran has submitted private treatment records related to the claims. Moreover, the Veteran underwent VA examinations in connection with her increased rating claim and also in June 2007 in connection with the service connection claim. Significantly, neither the Veteran nor her representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims. 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 Service connection for a left ankle disorder is denied. An increased initial rating for residuals, right tibial stress fracture is denied. REMAND The Veteran was granted service connection for migraine headaches, seborrheic dermatitis and right ankle sprain by rating decision of July 2007. She was notified that each disability was rated 10 percent respectively, in a letter of July 2007. In her substantive appeal of August 2007, she stated that she was appealing all of her issues that had been rated. This was taken as a notice of disagreement to the ratings granted. None of these three issues were reflected in a statement of the case (SOC). Under the circumstances, the Board has no discretion and is obliged to remand these three issues of an initial increased for issuance of an SOC. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Accordingly, the case is REMANDED for the following action: The RO should then readjudicate the issues of entitlement to an initial rating for migraine headaches, seborrheic dermatitis, and a right ankle sprain currently on appeal. The Veteran and her representative MUST be furnished a Statement of the Case (SOC) that addresses all pertinent evidence, laws and regulations relevant to her claims in compliance with the holding in Manlincon v. West as discussed above, and in accordance with 38 C.F.R. § 19.29, unless the matter is resolved by granting the benefits sought, or the withdrawal of the Veteran's NOD. If the Veteran perfects an appeal by timely submitting a substantive appeal, the matter should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ MICHAEL MARTIN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs