Citation Nr: 1306177 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 09-38 328 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an increased (compensable) rating for status post residual scar from left inguinal hernia. 2. Entitlement to an increased (compensable) rating for status post right wrist ganglion cyst. 3. Entitlement to an increased (compensable) rating for status post left wrist ganglion cyst. 4. Entitlement to an increased (compensable) rating for residuals of a right medial malleolus chip fracture. 5. Entitlement to a 10 percent rating based on multiple noncompensable service-connected disabilities. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from April 1987 to November 1992. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in April 2009, a statement of the case was issued in July 2009, and a substantive appeal was received in September 2009. FINDINGS OF FACT 1. The Veteran's left inguinal hernia scar is superficial, 6 cm by 0.2 cm, not painful on examination, and not unstable, and it does not cause functional impairment; he does not have a postoperative recurrent left inguinal hernia. 2. The Veteran's right and left wrist ganglion cysts are 1 cm and 0.6 cm in diameter, respectively; they are not painful on examination or unstable, and they do not cause limitation of motion of his wrists. 3. Residuals of the Veteran's right malleolus chip fracture include arthritis and painful motion. He does not have marked right ankle limitation of motion. His right ankle scar is stable, 3.8 cm x 0.2 cm, and not painful on examination. 4. Since the Veteran's service-connected right ankle disability is compensable throughout the course of the claim, a compensable rating under 38 C.F.R. § 3.324, for multiple noncompensable service-connected disabilities, may not be assigned. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for status post residual scar from left inguinal hernia have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.114, 4.118, Diagnostic Codes 7338 (2012), 7804 (2008). 2. The criteria for a compensable rating for status post right wrist ganglion cyst have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.118, Diagnostic Code 7899-7819 (2008). 3. The criteria for a compensable rating for status post left wrist ganglion cyst have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.118, Diagnostic Code 7899-7819 (2008). 4. The criteria for a 10 percent rating, but not higher, for residuals of a right medial malleolus chip fracture are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (2012). 5. The criteria for a compensable rating based upon multiple noncompensable service-connected disabilities have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 3.324 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the Veteran pre-adjudication notice by a letter dated in March 2008. The notification complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004). With respect to the Veteran's claim for compensation under 38 C.F.R. § 3.324, notice is found to be not required, as such claim cannot be substantiated as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426m 439 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law); VAOPGCPREC 5-2004 (June 23, 2004) (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit). VA also has a duty to assist a claimant under the VCAA. VA has obtained VA medical records; assisted the Veteran in obtaining evidence; examined the Veteran for the disabilities at issue in March 2008; attempted to examine the Veteran for them again in May 2012, but he failed to report without providing good cause; and afforded the Veteran the opportunity to give testimony before the Board. VA examined the Veteran for the disabilities at issue in March 2008. The examiner physically evaluated the Veteran and recorded examination findings adequate to rate the Veteran's disabilities. This examination was therefore adequate. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claims at this time. The Veteran contends that higher ratings are warranted for the disabilities at issue, as he is in constant pain and the disabilities are far worse than noncompensable. Disability ratings 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. 38 C.F.R. Part 4 contains the rating schedule. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). The rating criteria in 38 C.F.R. § 4.118, regarding skin diseases, have changed during the rating period, effective August 23, 2008. These revisions, however, are inapplicable, as they are applicable only to applications for benefits received by VA on or after October 23, 2008. See 73 FR 54708 (Sept. 23, 2008). The Veteran claims were received in January 2008. 38 C.F.R. § 4.118, Diagnostic Code 7801 (2008) permits a 10 percent rating for scars other than of the head, face, or neck, that are deep or that cause limitation of motion, if they have an area or areas exceeding 6 square inches (39 sq. cm.). Under 38 C.F.R. § 4.118, Diagnostic Code 7802 (2008), scars other than of the head, face, or neck, that are superficial and that do not cause limited motion warrant a 10 percent rating if they have area or areas exceeding 144 square inches (929 sq. cm.). Under 38 C.F.R. § 4.118, Diagnostic Code 7803 (2008), unstable superficial scars warrant a 10 percent rating. Under Diagnostic Code 7804, scars which are superficial and painful on examination warrant a 10 percent rating. The Veteran's left inguinal hernia scar is rated by the RO under 38 C.F.R. § 4.114, Diagnostic Code 7338, which provides for a noncompensable rating for an inguinal hernia when it is small, reducible, or without true hernia protrusion; or when it has not been operated on, but is remediable; and a 10 percent rating when there is a postoperative recurrent hernia which is readily reducible and well supported by a truss or belt. The Veteran's right and left wrist ganglion cysts are rated under 38 C.F.R. § 4.118, Diagnostic Code 7899-7819. Diagnostic Code 7819 indicates to rate them as disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), or impairment of function. The Veteran's right medial malleolus chip fracture is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5271. Under such code, moderate limitation of motion of the ankle warrants a 10 percent rating. Marked limitation of motion of the ankle warrants a 20 degrees. Under 38 C.F.R. § 4.71a, Plate II (2012), normal ankle dorsiflexion is to 20 degrees and normal ankle plantar flexion is to 45 degrees. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). With any form of arthritis, painful motion is an important factor of disability. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Whenever a Veteran is suffering from 2 or more separate permanent service-connected disabilities of such character as clearly to interfere with normal employability, even though none of the disabilities may be of compensable degree under the rating schedule, the rating agency is authorized to apply a 10 percent rating, but not in combination with any other rating. On VA evaluation in June 2007, prior to the rating period, there had been right ankle swelling medially, with a normal range of motion. On VA evaluation in January 2008, the Veteran reported that on and off, his right ankle gives out sometimes. On examination, it had no swelling or tenderness. The diagnosis was right ankle pain. The examiner suspected a subacute partial deltoid ligament strain; X-rays revealed focal subacute tenosynovial thickening of the posterior tibial tendon, anterior to the sustentaculum tali process of the calcaneus. This was not confirmed on sagittal planes. The assessment was mild degenerative joint disease of the right ankle. On VA examination in March 2008, the Veteran did not claim any pain, functional impairment, or incapacitation due to his ganglion cysts, in his wrists. He stated that his left inguinal hernia, which was operated on in service, had not returned, and he did not claim pain at the area of the left inguinal hernia surgery or functional impairment, disability, or treatment as having resulted from his surgery. He reported that his right ankle now would give way without warning, and that sometimes it swells. He did not claim that it was weak, stiff, red, warm, lacked endurance, locked, fatigued, or dislocated. He did not claim that his right ankle was with any pain, and he did not claim treatment for any right ankle condition. On examination, there was a stable, nontender scar with no ulceration in the left inguinal region which measured 6 cm by 0.2 cm. There were cysts noted at the dorsal aspect of the Veteran's wrists. The Veteran's right wrist cyst was 1 cm in diameter, and the left wrist cyst was 0.6 cm in diameter. They were nontender and did not have any adherence. His abdominal examination was normal with no left inguinal hernia. His gait was normal and his feet had no signs of any abnormal weightbearing. The Veteran's wrists were nontender and each had dorsiflexion to 70 degrees, palmar flexion to 80 degrees, radial deviation to 20 degrees, and ulnar deviation to 45 degrees, each with no pain. The range of motion of the wrists was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. His ankles manifested no evidence of edema, effusion, weakness, tenderness, redness, heat, guarding on movement, or subluxation, and there was no dorsiflexion, plantar flexion, inversion, or eversion deformity, nor was there ankylosis. Dorsiflexion was to 20 degrees, and plantar flexion was to 45 degrees, with no pain. There was no malunion of the os calcis or of the astragalus. A December 2009 VA medical record indicates that on examination, the Veteran had a right inguinal hernia but that he did not have a left inguinal hernia. On VA evaluation in February 2010, the Veteran's extremities had no significant deformity and no atrophy. He had a dorsal right wrist ganglion, estimated to be 1 cm, and a dorsal left hand ganglion, estimated to be 3-5 mm. His motor was 5/5 in both upper extremities with no focal weakness. On VA evaluation in July 2010, the Veteran complained of right ankle/foot joint pain and he had an old right ankle scar but no pretibial edema. In August 2010, he again complained of right ankle pain. On examination, he had pain along the medial right ankle joint along the medial malleolus, but there was no overt swelling or redness. His motor was grossly intact. An ankle brace was ordered. Based on the evidence, the Board concludes that a compensable rating is not warranted for the Veteran's service-connected left inguinal hernia disability. The evidence shows that his scar is superficial. Because it is only 6 cm by 0.2 cm and it is not deep, a compensable rating cannot be assigned under Diagnostic Code 7801. Additionally, a compensable rating cannot be assigned under Diagnostic Code 7802 because of its size of less than 144 square inches/929 square centimeters. A compensable rating cannot be assigned for it under Diagnostic Code 7803 as no evidence shows that it is unstable. A compensable rating cannot be assigned for it under Diagnostic Code 7804 as it is not painful on examination. The examination in March 2008 found it to be nontender and no other evidence shows it to be painful. Moreover, a compensable rating is not warranted under Diagnostic Code 7338 as the evidence shows that there has been no recurrence of his left inguinal hernia during the rating period. Based on the evidence, the Board concludes that compensable ratings are not warranted for the right or left wrist ganglion cyst disabilities. Because the cysts are not located on the Veteran's head, face, or neck, Diagnostic Code 7800 is not applicable. Diagnostic Codes 7801 and 7802 do not help, as the cysts do not have an area or areas of 6 square inches/39 square cm, or of 144 square inches/929 square centimeters. Diagnostic Code 7803 does not help, as they are not unstable. Diagnostic Code 7804 does not help, as the cysts were not painful on examination in March 2008 or elsewhere. Additionally, a compensable rating cannot be assigned under Diagnostic Code 5215 as the cysts do not cause limitation of motion of either wrist, to include wrist dorsiflexion limited to less than 15 degrees, or wrist palmar flexion limited to in line with the forearm. The examination in March 2008 showed dorsiflexion of each wrist to 70 degrees, and palmar flexion to 80 degrees, which is normal per 38 C.F.R. § 4.71a, Plate I (2012). The provisions of 38 C.F.R. §§ 4.40, 4.45 do not assist, as functional impairment is not shown. Based on the evidence, the Board concludes that a 10 percent rating, but no higher, is warranted for residuals of a right ankle chip fracture. This 10 percent rating is warranted under 38 C.F.R. § 4.59, for arthritis with painful motion. The Veteran had reported right ankle swelling on occasion. He reported in January 2008 that his ankle sometimes gives out. The examiner in January 2008 suspected a partial deltoid ligament strain, and X-rays revealed tenosynovial thickening of the posterior tibial tendon, in the area of the calcaneus, and the diagnosis was of right ankle arthritis. Again in March 2008, the Veteran reported that his right ankle sometimes swells, and in August 2010, he had pain along his medial ankle joint. A VA outpatient record also shows that a brace was ordered. All in all, the evidence warrants a finding that the Veteran does suffer some painful motion of his right ankle. Even though minimal, such painful motion arguably warrants a 10 percent rating when 38 C.F.R. 4.59 is considered. However, the preponderance of the evidence is against a rating greater than 10 percent for the Veteran's right ankle chip fracture residuals, as it indicates that he does not have marked limitation of motion of his right ankle. The range of motion as tested is in the normal range, rather than markedly limited. See 38 C.F.R. § 4.71a, Plate II (indicates that normal ankle dorsiflexion is to 20 degrees and that normal ankle plantar flexion is to 45 degrees). The provisions of 38 C.F.R. §§ 4.40, 4.45 do not assist, as the Veteran's range of motion has been essentially normal on testing, and on VA examination in March 2008, he denied weakness, stiffness, redness, warmth, lack of endurance, locking, and fatigue, and they were not found. Moreover, he had a normal gait with no signs of abnormal weightbearing at that time, and no atrophy in February 2010. The Veteran's assertions that he is in constant pain have been considered. However, the objective evidence showing that this is not the case, particularly concerning his claims other than for his right ankle, is considered more probative than his otherwise unsupported contention. In Fenderson v. West, 12 Vet. App. 119 (1999), and in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation or an increased rating has been disagreed with, it was possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. The Board concludes that the disabilities have not significantly changed, and so uniform ratings are warranted. In light of the award of a compensable rating for the Veteran's right ankle for the entirety of the rating period, a compensable rating under 38 C.F.R. § 3.324 cannot be assigned. A compensable rating cannot be assigned under 38 C.F.R. § 3.324 in combination with any other rating, including the 10 percent rating assigned for the Veteran's service-connected right ankle disability. An award of a 10 percent rating under the provisions of 38 C.F.R. § 3.324 is predicated on the existence solely of multiple non-compensable service-connected disabilities. Once a compensable rating has been awarded for any service-connected disability, 38 C.F.R. § 3.324 has no applicability. See Butts v. Brown, 5 Vet. App. 532, 541 (1993). Extraschedular Considerations The above determinations are based upon application of the pertinent provisions of VA's rating schedule. The Board finds that the record does not reflect that the Veteran's service-connected disabilities are so exceptional or unusual as to warrant the assignment of a higher rating on an extraschedular basis. See 38 C.F.R. § 3.321(b)(1) (2011). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disabilities with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id.; see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation 38 C.F.R. § 3.321(b)(1) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). In this case, the Board finds that the rating criteria used to evaluate the Veteran's service-connected disabilities reasonably describe his disability levels and symptomatology. The schedular criteria, in general, are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2012). Therefore, the Veteran's disability picture is contemplated by the rating schedule and no extraschedular referral is required. 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). Lastly, the Court has held that a request for a total disability rating based on individual unemployability (TDIU), whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim, or, if the disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In the instant case, the Veteran is working as a car detailer according to a July 2011 VA medical record and an unemployability claim has not been reasonably raised by the record. ORDER A compensable rating for status post residual scar from left inguinal hernia is not warranted. A compensable rating for status post right wrist ganglion cyst is not warranted. A compensable rating for status post left wrist ganglion cyst is not warranted. A 10 percent rating, but not higher, for residuals of a right malleolus chip fracture, is warranted, subject to the controlling regulations applicable to the payment of monetary benefits. To this extent only, the appeal is granted. A compensable rating based on multiple noncompensable service-connected disabilities is not warranted. ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs