Citation Nr: 1243597 Decision Date: 12/20/12 Archive Date: 12/27/12 DOCKET NO. 07-12 995 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for residuals, left hand injury. 2. Entitlement to an initial compensable rating for residuals, left ankle injury, prior to November 3, 2009. 3. Entitlement to an initial rating in excess of 10 percent for residuals, left ankle injury, since November 3, 2009. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The Veteran served on active duty from May 1963 to March 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision of the Chicago, Illinois, Department of Veterans Affairs (VA) Regional Office (RO)which denied service connection for residuals, left hand. Service connection was granted for residuals, left ankle injury, and a noncompensable rating was granted, effective May 20, 2005. In May 2009, the Veteran and his spouse testified at a Travel Board hearing in Chicago, Illinois, before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record and associated with the claims folder. In August 2009, the Board remanded the instant case for further development. By rating decision of December 2011, a noncompensable rating for residuals, left ankle injury was increased to 10 percent, effective November 2009. The United States Court of Appeals for Veterans Claims (Court) indicated that a claimant will generally be presumed to be seeking the maximum benefits allowed by law and regulations, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet.App. 35, 38 (1992). Therefore, the claim for an increased initial rating for residuals, left ankle injury is still in appellate status. FINDINGS OF FACT 1. "A left hand injury was not documented at service discharge or for many years thereafter; and, the competent and credible evidence of record fails to establish a link between residuals of a left hand injury and the Veteran's active duty service. 2. Prior to November 2009, residuals, left ankle injury was not productive of moderate limitation of motion of the left ankle. 4. Since November 2009, residuals, left ankle injury was productive of no more than moderate limitation of motion of the left ankle. CONCLUSIONS OF LAW 1. A left hand injury was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2011). 2. The criteria for a compensable rating prior to November 2009 for residuals, left ankle injury have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a, DC, 5271 (2012). 3. The criteria for a rating in excess of 10 percent since November 2009 for residuals, left ankle injury have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a, DC 5271 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Assist and Notify Before addressing the merits of the claim, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). The notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. 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. The Board notes that where service connection has been granted and an initial rating and effective date have been assigned, the claim of service connection has been more than substantiated, as it has been proven. As such, 38 U.S.C.A. § 5103(a) notice is no longer required since the purpose that the notice was intended to serve has been fulfilled. Furthermore, once a claim for service connection has been substantiated, the filing of a notice of disagreement with the rating of the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. Therefore, any defect as to 38 U.S.C.A. § 5103(a) notice is nonprejudicial. See Dunlap v. Nicholson, 21 Vet. App. 112 (2007); Goodwin v. Peake, 22 Vet. App. 128 (2008) (where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to any downstream elements). Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseski v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet.App. 128 (2008);Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet.App. 112 (2007). None is found by the Board. In the issue of service connection, the VCAA duty to notify was satisfied by way of letters sent to the Veteran in July 2005 and March 2006. The letters fully addressed all notice elements. It informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). With those letters, the RO effectively satisfied the notice requirements with respect to the issues of service connection on appeal. Under these circumstances, the Board finds that adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). Next, VA has a duty to assist a veteran in the development of the claims. This duty includes assisting him or her in the procurement of service treatment records, private treatment records, and other pertinent VA treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2010). The RO associated the Veteran's service treatment records, private treatment records, and VA treatment records with the claims file. No outstanding evidence has been identified. The Veteran was afforded VA examinations in connection with the claims. The Board finds the VA examination reports were thorough and adequate upon which to base a decision. The November 2005 VA examination required additional findings and as a result, he underwent additional examination by VA in November 2009. The VA examiner personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and provided the information necessary to evaluate the Veteran's disabilities under the applicable rating criteria. Additionally, as to the service connection claims, the VA examinations were thorough and provided adequate information upon which to decide the claim. Further, the Veteran was provided an opportunity to set forth his contentions at a Travel Board hearing in May 2009 before the undersigned VLJ. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that the RO Decision Review Officer or Veteran's Law Judge (VLJ) who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the undersigned VLJ identified the issues on appeal. The VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Therefore, not only were the issues "explained in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claims," were also fully explained. See Bryant, 23 Vet.App. at 497. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and the Board can adjudicate the claims based on the current record. The Board concludes that all the available records and medical evidence have been obtained in order to make an adequate determination as to these claims. 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). Service Connection The Veteran claims that service connection is warranted for a left hand injury based upon service incurrence. He maintains that he was seen in service after he slammed his left hand in a car door. His left index finger was drained and he alleges that he has had pain in the left hand since that time. 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. §§ 1110 (West 2002). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet.App. 110, 111 (2002); Caluza v. Brown, 7 Vet.App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). 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). 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). 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). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d. 1313 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Service treatment records show the Veteran was seen in July 1964 for a left index finger disorder. He related that he had been seen by sick call one week earlier with a small spot infection of the left index finger. He had the infection incised at a private hospital and since that time it became progressively worse. Physical examination revealed a felon of the left index finger. Incision and drainage was performed and he was admitted to the hospital. He was placed on light duty and told to soak the left hand 2 times daily for 10 days. He was placed on Tetracycline soaks. The drain was subsequently removed and the Veteran continued the Tetracycline soaks. He did extremely well without any recurrent inflammation or infection. In April 1965, the Veteran was seen with a possible foreign body of the left little finger. Hot soaks of two days responded well, but later became reinfected. He had a past history of cellulitis infections. It was noted that he had a past infection on the same hand. He was treated with hot soaks and Tetracycline. It was stated that if this did not appear to improve his condition he should be sent to the hospital on shore for incision and drainage. On separation examination in March 1967, clinical evaluation of the upper extremities proved normal. No complaints, findings, or diagnosis regarding his left hand injury or treatments were made. In October 2005, the Veteran underwent a VA examination. He related that he had a history of incision and drainage of a felon of the left finger in service. He stated that he did not recall a fracture of the finger or the left hand. He related that he has flare-ups of pain in damp and cold weather. Physical examination of the left hand showed no anatomical defects. He exhibited full range of motion of the metacarpophalangeal joint (MCP)and the interphalangeal (IP) joints of the left hand. There was slight weakness to the left hand grip. There was no appreciable loss of dexterity. He was able to twist, pull, push and manipulate papers and small objects. X-rays showed minimal cystic changes of the proximal end of the second and third proximal phalanges, consider enchondroma. No fractures, whether recent or old, were identified. The diagnosis was possible carpal tunnel syndrome (CTS) of the left hand and left elbow. The examiner opined that the Veteran's service treatment records yielded a history of felon left index finger infection, secondary to a prior trauma. However, there was no correlation between the Veteran's inservice left index finger condition and his current left hand complaints. The current left hand complaints were less likely than not related to the Veteran's military service. The Veteran testified at a Travel Board hearing in May 2009. At that time, he testified that he slammed his left hand in a car door while in service and it was lanced where it became swollen. He stated that he did not relate any fracture in connection with the injury. He stated that he had it wrapped for a month and that it was infected at the left index finger. He stated that there was a residual scar which was tender in damp weather and winter. He also stated that it ached and he had decreased left hand grip strength as a result. He related that he was told that he had CTS in the left wrist. Pursuant to the Board's August 2009 remand, the Veteran underwent additional VA examination in November 2009. The examiner elicited history from the Veteran and examined his left hand. X-rays performed in conjunction with the examination showed no acute fracture or dislocation. There was normal mineralization and there were no significant changes. There were no abnormal soft tissue calcifications. There was ulnar negative variance. The diagnosis was remote felon left index finger, drained in 1967. The examiner opined that it was less likely than not that the Veteran's current complaints of left hand discomfort were related to the cystic abnormalities noted on the 2005 hand x-ray nor were they a residual of the drainage of the left index finger felon. He stated that drainage of the left index finger felon could not cause a cystic degeneration of the second and third fingers. No credible medical evidence linked the two. He also opined that there was no credible medical evidence that linked a remote drainage of felon to diffuse hand pain. VA outpatient treatment records from December 2005 to December 2011 showed no findings, treatment, or diagnoses related to a left hand injury. At the outset, the Board emphasizes that although the medical evidence of record shows that the Veteran did slam his hand in service and he was treated on at least two occasions in 1964 and 1965 with incision and drainage of a left index finger felon, on separation from service in 1967, his left hand was found to be clinically normal. There is no evidence that a left hand condition was diagnosed at separation or at any time within close proximity to service. The contemporaneous objective medical evidence is simply against the finding that residuals of a left hand injury were shown on service separation or any time thereafter. However, this does not in itself preclude a grant of service connection. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). A review of the post-service evidence does not support the conclusion that the Veteran's residuals of a left hand injury are causally related to active service. Specifically, other than the Veteran's and his spouse's statements of such, the competent and credible evidence is against the finding that the Veteran's residuals of a left hand injury are related to service. As discussed, the medical evidence associated with the claims folder does not show evidence of residuals of a left hand injury from service discharge until complaints presented in 2005. These findings tend to indicate that any left hand injury sustained in service was acute and transitory and resolved prior to service discharge without residual disability. The fact remains that, aside from the Veteran's personal statements, and those of his spouse, there is not one iota of evidence documenting the Veteran's has residuals of a left hand injury since the 1960's which is what he alleges. It is important to note that he states that he has CTS of the left wrist. A November 2005 VA examination report provided a diagnosis of a possible CTS of the left hand. Unfortunately, he has not presented any evidence that his complaints of left wrist/left hand CTS is in any way related to a left index finger injury sustained in service. The Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.1996) (table); 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 Board questions whether the Veteran is competent to state that he has experienced residuals of a left hand injury since active service. It is equally true that he is competent to identify some types of symptoms that may be ascribed to residuals of a left hand injury. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 at n.4 (Fed. Cir. 2007) ("Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer."). However, the Board does not believe the Veteran is competent to attribute such symptomatology to the subsequent development of this condition. Moreover, even if the Veteran is found to be competent, the Board is within its province to weigh that testimony and to make a credibility determination. Significantly, the Veteran's reported history of continued symptoms since active service is inconsistent with the other evidence of record. Although his spouse indicates that he has been rubbing his left hand and using pain medication for the left hand since service, she too, is not competent to determine if his present left hand pain is the result the injury he sustained in service. Consideration has been given to the Veteran's statements that he has had left hand residuals since service on a continuous basis. However, the fact remains that there is an approximately 40 year period between the first documented medical evidence of this problem and the Veteran's service discharge. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (indicating that "evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the [V]eteran's health and medical treatment during and after military service, as evidence of whether a pre-existing condition was aggravated by military service"). Indeed, the Board is left to wonder why the Veteran would wait 40 years to file a claim for this disorder, if, as he argues, he has been experiencing chronic symptoms of the disorder since service. This too bears against his overall credibility. See Shaw v. Principi, 3 Vet. App. 365 (1992) (a veteran's delay in asserting a claim can constitute negative evidence that weighs against the claim). Accordingly, the Board finds the statements of the Veteran asserting in-service incurrence or continuity of symptomatology since service lack credibility and is without probative value. See, e.g. Madden v. Gober, 125 F.3d 1477, 1481 (1997) (the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration a veteran's statements, it may consider whether self-interest may be a factor in making such statements). Next, service connection may be granted when the evidence establishes a medical nexus between active duty service and current complaints. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's left hand complaints to service, despite his contentions to the contrary. No medical professional has established a relationship between this disorder and active duty. There is no medical evidence of record, and the Veteran has not indicated that any physician has associated, his left hand complaints to his active service. Moreover, both the November 2005 VA examination findings and the November 2009 VA examination findings indicate that it is less likely that his inservice left index finger injury is related to his current left hand complaints. The November 2009 VA findings indicate that cystic findings on the 2005 x-ray could not have been caused by the drainage of a left index finger felon which occurred in service. The examiner indicated that there is no credible evidence linking a remote drainage of a felon to diffuse left hand pain. The Board notes that the Veteran has asserted that his claimed disorder is related to his active service. He is again competent to report symptoms as they come to him through his senses. However, the Veteran is not competent to provide an opinion regarding the etiology of his left hand disorder. See Jandreau v. Nicholson. Because residuals of a left hand disorder are not diagnosed by unique and readily identifiable features, they do not involve a simple identification that a layperson is competent to make. Therefore, the Veteran's statements regarding the claimed etiology of his left hand complaints are found to lack competency. Thus, as a nexus between the Veteran's claimed residuals, left hand injury and his active service have not been established, either through medical evidence or the Veteran's own statements, the claim fails on that basis. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection for residuals, left hand injury. Initial Ratings Disability ratings 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 ratings shall be applied, the higher rating 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. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations that are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When all of the evidence is assembled, VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In determining the level of impairment, the disability must be considered in the context of the whole recorded history. 38 C.F.R. §§ 4.2, 4.41 (2011). An evaluation of the level of disability present also includes consideration of the functional impairment of the appellant's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2011). When the appeal arises from an initial rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are also appropriate in increased rating claims, in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). When, an already established service-connected disability, the present disability level is the primary concern and past medical reports do not take precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). The Board has reviewed all of the evidence in the Veteran's claims file. 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. 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). 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 of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervations, or other 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. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or misaligned joints due to a healed injury are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. By rating decision of November 2005, service connection for left ankle injury was granted. A noncompensable rating was awarded, effective May 20, 2005. By rating decision of December 2011, the noncompensable evaluation was increased to 10 percent, effective November 3, 2009. A 10 percent evaluation has been in effect since that date. The Veteran asserts that his left ankle disability is more severe than the current evaluation reflects. The Veteran's left ankle disability is evaluated under 38 C.F.R. § 4.71a, DC 5271. Prior to November 3, 2009, the Veteran's left ankle was evaluated as noncompensably disabling. Since November 3, 2009, his left ankle has been evaluated as 10 percent disabling. DC 5271, limitation of ankle motion warrants a 10 percent rating for moderate limitation of motion. A 20 percent rating is warranted for marked limitation of motion. The Board notes that words such as 'moderate' and 'marked' are not defined in VA's 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.' See 38 C.F.R. § 4.6. The Board notes that normal ranges of motion of the ankle are dorsiflexion from 0 degrees to 20 degrees, and plantar flexion from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. The Veteran underwent a VA examination in November 2005. He presented for an initial claim for his left ankle complaints. He complained of weakness, giving out throbbing, occasional swelling, and walking with a limp. He had lateral ankle pain. He was treated with over the counter aspirin or Motrin as needed. He complained of flare-ups of symptoms associated with and increased by cold, damp weather. These symptoms were precipitated by standing more than 2 to 3 hours and alleviating factors included heat and heat cream rubs. During flare-ups, he complained of extended weight bearing. He used an ace bandage as needed. Physical examination showed left ankle range of motion findings of dorsiflexion of 0 to 20 degrees, and plantar flexion of 0 to 45 degrees. Motor strength was 5/5. There was no fatigue, weakness, lack of endurance, or incoordination. There was lateral ankle tenderness. There was no medial ankle tenderness. There was a slight antalgic gait. There were 2 bony fragments at the tip of the lateral malleolus, considered as previous ununited fracture. There was no soft tissue swelling identified. The diagnosis was calcifications of the left ankle lateral malleolus. In May 2009, the Veteran testified at a Travel Board hearing before the undersigned VLJ. The Veteran related that he had continual pain in his left ankle. He stated he had instability of the left ankle which caused him to fall and trip on occasion. He claimed he had swelling at times but no deformity of the left ankle and he was able to walk normally. He wore no brace or special shoes, and had no operations or recommendations for an operation. He testified that he sometimes wrapped his ankle and used Aspercreme for pain. His left ankle caused him difficulty when he attempted to work around the house. Pursuant to the Board's remand, the Veteran underwent VA examination in November 2009. He related pain of the left ankle, more during cold weather. He related that while taking long walks, he wrapped the ankle with an ace wrap. His stance was normal. He had no history of neoplasm related to his left ankle complaint. Physical examination of the left ankle revealed normal relation of the os calcis to the tibia and fibula. The lateral malleolus was prominent in the area of the old fracture. Range of motion showed dorsiflexion of 0 to 20 degrees, pain from 0 to 20 degrees; plantar flexion was 0 to 40 degrees, pain from 20 degrees to 40 degrees; inversion and eversion from 0 to 20 degrees, pain was 0 to 20 degrees. After 3 repetitions, the findings were all unchanged. X-rays of the left ankle showed no recent fracture or dislocation. The diagnosis was remote left ankle fracture with chronic ankle strain. The examiner also indicated that flare-ups were present, but there was no additional functional limitation during the flare-ups. VA outpatient treatment records from December 2005 to December 2011 were obtained and associated with the claims folder. Those records showed no findings related to his left ankle injury. Prior to November 2009, the Veteran's left ankle disability is not productive of moderate disablement, necessary to warrant a 10 percent rating. At no time prior to November 2009, does the medical evidence show more than mild complaints. The Veteran's left ankle disability exhibited full range of motion and the examiner indicated no objective evidence of pain, weakness, fatigue, lack of endurance, or incoordination was observed. Subjective complaints of pain were expressed by the Veteran and noted by his spouse in hearing testimony, but the objective medical evidence of record was devoid of these findings. As such, a compensable rating prior to November 2009 is not warranted. Since November 2009, the Veteran's left ankle disability is productive of no more than moderate disablement. Marked disablement, necessary for a 20 percent rating has not been shown. Although his left ankle disability presented pain in plantar flexion from 20 degrees to 40 degrees, after 3 repetitions, there was no change in the findings. Although there was some limitation of motion, the level of limitation was no more than moderate. The Board further finds that there is no basis for the assignment of a higher rating based on consideration of any of the factors addressed in 38 C.F.R. §§ 4.40, 4.45 and DeLuca, 8 Vet. App. at 204-7. The Court has held that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, 25 Vet.App. 32, 38 (2011). Rather, pain, may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. Here, as noted, even with his complaints of pain, the Veteran had no additional loss of plantar flexion. The examiner also specifically indicated that there was no additional loss of motion or functional loss of plantar flexion, on repetition, despite the complaints of pain. Evidence reflects that the currently assigned 10 percent ratings properly compensate him for the extent of functional loss resulting from symptoms like painful motion, tenderness, and antalgic gait. Notwithstanding the above, the Board has also considered additional diagnostic codes which may provide for higher evaluations for the ankle. Under 38 C.F.R. § 4.71a, a disability rating in excess of 20 percent will be warranted for an ankle disability when there is ankylosis of the ankle in plantar flexion between 30 degrees and 40 degrees, or in dorsiflexion between 0 degrees and 10 degrees, (30 percent disabling under Diagnostic Code 5270); or ankylosis in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion or eversion deformity (40 percent disabling under Diagnostic Code 5270). Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet.App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health 68 (4th ed. 1987)). At no time during the appellate period was there any evidence of ankylosis. Therefore an increased initial rating based on ankylosis was not shown. The Board has considered the Veteran's statements that his left ankle disability is worse. He asserted, in essence, that he warranted increased ratings for this disability. 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 him through his senses. Layno, 6 Vet. App. at 470. However, the Veteran has not been shown to possess the competence to identify a specific level of disability of these disorders according to the appropriate diagnostic codes. Such competent evidence-concerning the nature and extent of the Veteran's left ankle disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which the Veteran's left ankle disability is evaluated. The Board has also considered 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) (2011), 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. The Court clarified the analytical steps necessary to determine whether referral for such consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). A determination of whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology first must be made by the RO or Board. If the rating criteria are inadequate, the RO or Board must proceed to determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. In this case, there has been no showing that the Veteran's disability picture could not be contemplated adequately by the applicable schedular rating criteria discussed above. The evaluations of the Veteran's left ankle disability were applied to the applicable rating criteria and case law. The Board fully explained why a higher rating was not warranted for his left ankle disability. Given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran's left ankle disability, includes exceptional factors. Referral for consideration of the assignment of a disability evaluation on an extraschedular basis for this disability is not warranted. See Thun, 22 Vet. App. at 111; see also 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). Finally, although the Veteran has submitted evidence of a medical disability, and made a claim for the highest rating possible, he has not submitted evidence of unemployability, or claimed to be unemployable. He reported that he was retired, but he did not indicate that it was the result of his service-connected disability. Therefore, the question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability has not been raised. See Rice v. Shinseki, 22 Vet.App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). ORDER Service connection for residuals, left hand injury, is denied. An initial compensable rating for left ankle disability, prior to November 3, 2009, is denied. An initial rating in excess of 10 percent for left ankle disability, since November 3, 2009, is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs