Citation Nr: 1307745 Decision Date: 03/08/13 Archive Date: 03/11/13 DOCKET NO. 09-39 976 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a bilateral knee disability. 2. Entitlement to service connection for a low back disability. 3. Entitlement to service connection for a bilateral hip disability. 4. Entitlement to service connection for a bilateral foot disability. 5. Entitlement to service connection for insomnia and sleep apnea. 6. Entitlement to service connection for disabilities of the lung and chest. 7. Entitlement to service connection for a skin condition. 8. Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD). 9. Entitlement to service connection for a right ankle disability. 10. Entitlement to a rating in excess of 10 percent for status post tibia/fibula fracture with left ankle strain. 11. Entitlement to a compensable rating for left leg shortening. REPRESENTATION Appellant represented by: Jan Dils, Attorney ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel INTRODUCTION The Veteran served on active duty from April 1968 to March 1970, from August 1970 to August 1972, and from October 1972 to January 1990. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions in June 2008 and March 2009 of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The June 2008 rating decision, in part, denied service connection for PTSD. The psychiatric disability issue has been recharacterized to better reflect the Veteran's contentions and changes in case law. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The claims of service connection for a bilateral hip disability, insomnia and sleep apnea, disabilities of the lung and chest, a skin condition, and a psychiatric disorder to include PTSD, are REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. A bilateral knee disability did not have its onset in service and was not caused or aggravated by service or a service-connected disability; degenerative joint disease of the knees was first demonstrated more than 15 years after separation from service. 2. A chronic low back disability did not have its onset in service and was not caused or aggravated by service or a service-connected disability; degenerative joint disease of the lumbar spine was first demonstrated more than 15 years after separation from service. 3. There is no medical evidence demonstrating a disability of either foot during service or currently. 4. There is no medical evidence demonstrating a right ankle disability during service or currently. 5. At no time during the appeal period has the Veteran's left tibia and fibula disability been characterized by more than moderate limitation of ankle motion, and no associated knee disability has been shown. 6. Throughout the pendency of the appeal, the Veteran's left leg length discrepancy is manifested by shortening of less than 1 and 1/4 to 2 inches (3.2 cms to 5.1 cms). CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral knee disability have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309, 3.310 (2012). 2. The criteria for service connection for a low back disability have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309, 3.310 (2012). 3. The criteria for service connection for a bilateral foot disability have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). 4. The criteria for service connection for a right ankle disability have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). 5. The criteria for a rating in excess of 10 percent for residuals of left tibia and fibula fractures with left ankle strain have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5262, 5271 (2012). 6. The criteria for a compensable rating for a left leg length discrepancy have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5275 (2012). VCAA Notice and Assistance Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 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. April 2007, December 2007, and September 2008 letters satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). These letters also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained; he did not identify any private/VA treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). VA examinations were conducted in December 2006, May 2008, and October 2008; the Veteran has not argued, and the record does not reflect, that these examinations were inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). As the evidence of record does not indicate that a current foot or right ankle disability may be associated with service, a medical examination or medical opinion is not required under the duty to assist. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the claim of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in- service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In addition, where a Veteran served ninety days or more during a period of war or during peacetime after December 31, 1946, and certain diseases, such as arthritis, become manifest to a compensable degree within one year after the veteran's military service ends, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113 38 C.F.R. §§ 3.307, 3.309(a). This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Under certain circumstances lay statements may serve to support a claim for service connection by supporting the occurrence of lay observable events or the presence of disability, or symptoms of disability, capable of lay observation. Jandreau, supra. Lay testimony is competent regarding features or symptoms of injury or disease when the features or symptoms are within the personal knowledge and observations of the witness. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); see also Buchanan, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. Knees The service treatment records do not contain any complaint or finding related to the knees. After service in May 2005 the Veteran complained of pain and paresthesia in the right knee. In August 2006, he complained of left knee pain. X-ray showed osteoarthritis of the left knee. In May 2008 on VA examination, the Veteran stated that his knee began four years earlier. X-rays showed osteoarthritis of both knees. The diagnosis was bilateral knee degenerative joint disease. The VA examiner expressed the opinion that it was less likely than not that the knee disability was secondary to or permanently aggravated by the altered gait from the service-connected disabilities. The VA examiner stated that if the degenerative joint disease was secondary to a limp one would expect more weight and pressure to be on the right leg, leading to worse degenerative joint disease on the right knee, which was not found. The evidence shows that the Veteran has been diagnosed with degenerative joint disease of the knees. The remaining question is whether there is a relationship between the Veteran's bilateral knee disability and service or his service-connected residuals of a left ankle fracture or left leg shortening. The service treatment records contain no evidence of knee symptoms, and the earliest reference to knee pain is in 2005, more than 15 years after separation from service. See Maxson v. Gober, 230 F.3rd. 1330, 1333 (Fed. Cir. 2000) (time elapsed prior to initial complaint can be considered as evidence against the claim.). There is no history of knee pain during or since service, suggesting that a knee disability had onset during service or that there is a causal relationship between service and a bilateral knee disability. On the VA examination in May 2008, the Veteran dated the onset of his knee problems to four years earlier. In sum, the medical evidence does not indicate that degenerative joint disease of the knees had its onset during service or that it is causally related to service, and service connection on a direct basis is not warranted. As degenerative joint disease (arthritis) of the knees was not diagnosed until 2006. service connection on a presumptive basis is not warranted. 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. On the claim of secondary service connection, which is the Veteran's main contention, that is, the bilateral knee disability is related to the service-connected residuals of a left ankle fracture and left leg shortening, the evidence does not include any medical evidence demonstrating such a link. The only medical opinion of record addressing this point, the May 2008 VA examination report, is against the claim. The Veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). And the Veteran as a lay person is competent to identify a simple medical condition, or describe a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The question then is whether the Veteran as a lay person is competent to offer an opinion on the causal relationship or nexus between the current knee disabilities and the service-connected residuals of a left ankle fracture and left leg shortening. Degenerative joint disease is not a condition under case law that has been found to be capable of lay observation and it is not a simple medical condition, because the disability cannot be identified or diagnosed by the Veteran as a lay person based on mere personal observation, that is, the disability cannot be perceived through the senses, for example, by visual observation, and therefore such a disability is not a simple medical condition. As the disability is not a condition that can be identified based on personal observation, either by case law or as a simple medical condition, and any inference based on what is not personally observable cannot be competent lay evidence. And no factual foundation has been established to show that the Veteran is otherwise qualified through specialized education, training, or experience to offer an opinion on the causal relationship or nexus between the current knee disabilities and the service-connected disabilities of the left lower extremity. For this reason, the Veteran's lay opinion is not competent evidence. Since the Veteran's lay opinion is not competent evidence, the Veteran's opinion is excluded, that is, not admissible as evidence and cannot be considered as competent lay evidence favorable to claim. For these reasons, the preponderance of the evidence is against the Veteran's claim for service connection for degenerative joint disease of the left and right knees on a direct and secondary basis. Low Back The Veteran contends that he has arthritis of his lumbar spine that is caused or made worse by his service connected residuals of left tibia/fibula fractures and left leg shortening. The service treatment records show that the Veteran was seen for acute lumbar strain in June 1982. The remainder of the service treatment records do not contain any complaint or finding related to the back. After service in May 2005 the Veteran complained of lower back pain. The diagnosis was L4-5 and L5-S1 degenerative disc space narrowing and L5-S1 facet arthrosis by X-ray. In May 2008 on VA examination, the Veteran stated that his low back pain began in 1982. The Veteran's wife stated that the Veteran's back would bother him on and off over the years, and that in the past three to four years it had bothered him more. X-rays showed osteoarthritis of the lumbar spine. The diagnosis was degenerative joint disease of the lumbar spine and the VA examiner expressed the opinion that it was less likely than not that the back disability was due to back strain in 1982, which was a short-term strain with no indication of a chronic condition as there was no documentation of continued back problems over the years until recently. The examiner was unable to state without resorting to speculation whether the lumbar spine disability was caused by the disabilities of the left lower extremity. The VA examiner did state that the left leg shortening and the altered gait were both mild, and it seemed improbable that the Veteran would develop arthritis due to a mild gait disturbance. Also, the Veteran had a history of many years of physical work as a truck mechanic that likely contributed significantly to development of his current back problem. Magnetic resonance imaging (MRI) in February 2009 showed degenerative facet joint disease and symmetrical neural foraminal narrowing. There was evidence of mild broad-based disc bulge at L2-L3 and disc desiccation at L4-5, L3-4, and L2-3 disc spaces. The evidence documents that the Veteran has been diagnosed with degenerative joint disease of the lumbar spine. Therefore, the remaining question is whether there is a relationship between the Veteran's low back disability and service or his service-connected disabilities of the left lower extremity. The service treatment records show only an acute lumbar strain in 1982 with no further findings of back complaints or pathology during the remainder of service. The earliest mention of back complaints is in 2005, more than 15 years after separation from service. See Maxson v. Gober, 230 F.3rd. 1330, 1333 (Fed. Cir. 2000) (time elapsed prior to initial complaint can be considered as evidence against the claim.). The Veteran's wife stated that the Veteran had back problems since service. In a statement in July 2007, the Veteran stated that his lower back had been hurting him for the several years. The Veteran's own statements do not provide evidence of continuity of back symptomatology since service. The record does not contain any medical findings or a history, suggesting that a chronic back disability had its onset during service or that there is a causal relationship between service and a current back disability. In May 2008, the VA examiner concluded that the current back findings were not related to the inservice acute lumbar strain in 1982. In sum, the medical evidence does not indicate that degenerative joint disease of the lumbar spine had its onset during service or that it is causally related to service, and service connection on a direct basis is not warranted. As degenerative joint disease (arthritis) of the lumbar spine was not diagnosed until 2008, service connection on a presumptive basis is not warranted. 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. On the claim of secondary service connection, that is, the low back disability is related to the service-connected residuals of a left ankle fracture and left leg shortening, the evidence does not include any medical evidence demonstrating such a link. The only medical opinion of record addressing this point, the May 2008 VA examination report, is against the claim. The Veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). And the Veteran as a lay person is competent to identify a simple medical condition, or describe a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The question then is whether the Veteran as a lay person is competent to offer an opinion on the causal relationship or nexus between the current low back disability the service-connected residuals of a left ankle fracture and left leg shortening. Degenerative joint disease is not a condition under case law that has been found to be capable of lay observation and it is not a simple medical condition, because the disability cannot be identified or diagnosed by the Veteran as a lay person based on mere personal observation, that is, the disability cannot be perceived through the senses, for example, by visual observation, and therefore such a disability is not a simple medical condition. As the disability is not a condition that can be identified based on personal observation, either by case law or as a simple medical condition, and any inference based on what is not personally observable cannot be competent lay evidence. And no factual foundation has been established to show that the Veteran is otherwise qualified through specialized education, training, or experience to offer an opinion on the causal relationship or nexus between the current low back disability and the service-connected disabilities of the left lower extremity. For this reason, the Veteran's lay opinion is not competent evidence. Since the Veteran's lay opinion is not competent evidence, the Veteran's opinion is excluded, that is, not admissible as evidence and cannot be considered as competent lay evidence favorable to claim. For these reasons, the preponderance of the evidence is against the Veteran's claim for service connection for a low back disability on a direct and secondary basis. Feet The Veteran contends that he has a bilateral foot disability as a result of wearing combat boots during military training. He reports that he has chronic pain, swelling, and stiffness in his feet. The service treatment records do not contain any complaint or finding related to the feet. There are no records of any current disability of either foot. On VA examination in December 2006, the examiner noted that the feet showed no callus and no skin breakdown. VA examination in May 2008 noted that the feet did not show any callus formation. These examination reports do not reflect that the Veteran reported any foot complaints. To the extent that the Veteran believes he has a bilateral foot condition, the Board notes that a symptom without a diagnosed or identifiable underlying malady or condition does not in and of itself constitute a disability for which service connection may be granted. See Sanchez-Benitez, 13 Vet. App. at 285. Although the Veteran is competent to report symptoms, a disability is required in order to establish service connection. Brammer, 3 Vet. App. at 225; see Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, in the absence of evidence of a diagnosed disability of either foot, the preponderance of evidence is against service connection and the claim is denied. 38 U.S.C.A. § 5107(b). Right Ankle The Veteran contends that he has a right ankle disability that is attributable to injury during service. He has not reported any specific injury involving the right ankle, but generally reports that he injured his ankles during service; he is service connected for residuals of left ankle fracture. The service treatment records do not contain any complaints or findings related to the Veteran's right ankle. There are no records of any current disability of the right ankle. VA examination in May 2008 included normal examination findings related to the right ankle. The examination report did not reflect that the Veteran reported any right ankle complaints. A May 2012 X-ray report noted that the right ankle joint appeared normal without erosion or significant degeneration. There was extensive calcification in the soft tissues of the posterior distal ankle in the region of the Achilles tendon; this was to be correlated clinically for any known history of Achilles tendon injury, rupture, or calcific tendonitis. To the extent that the Veteran believes he has a right ankle condition, the Board notes that a symptom without a diagnosed or identifiable underlying malady or condition does not in and of itself constitute a disability for which service connection may be granted. See Sanchez-Benitez, 13 Vet. App. at 285. Although the Veteran is competent to report symptoms, a disability is required in order to establish service connection. Brammer, 3 Vet. App. at 225; see Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, in the absence of evidence of a diagnosed disability of the right ankle, the preponderance of evidence is against service connection and the claim is denied. 38 U.S.C.A. § 5107(b). Increased Ratings Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. The percentage ratings in VA's Schedule for Rating Disabilities (Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1 (2012). A disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss due to pain, supported by adequate pathology and evidenced by the visible behavior of the Veteran undertaking the motion is a factor. Weakness is also an important. 38 C.F.R. § 4.40. When evaluating the joints, factors to consider include less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. 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. Left Ankle The Veteran suffered fractures of the left tibia and fibula during service in 1983. Service connection for status post tibia and fibula fracture with left ankle strain was granted in December 2006. An initial 10 percent rating was assigned from July 2006. The Veteran filed a claim for increased rating in August 2008. The RO has rated the Veteran's left ankle disability under 38 C.F.R. § 4.71a, Diagnostic Code 5271. The current 10 percent rating is assigned where there is moderate limitation of motion of the ankle. A 20 percent rating is assigned where there is marked limitation of motion of the ankle. For VA rating purposes, full range of motion of an ankle is from 20 degrees of dorsiflexion to 45 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II. "Slight," "moderate," and "marked" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Under Diagnostic Code 5010, traumatic arthritis is to be rated as degenerative arthritis under Diagnostic Code 5003. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, an evaluation of 10 percent is applied for each major joint or group of minor joints affected by limitation of motion. With any form of arthritis, painful motion is an important factor. It is the intention of the rating schedule 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. Under DC 5262, pertaining to impairment of the tibia and fibula, a 40 percent rating is warranted when there is nonunion of, with loose motion, requiring a brace. A 30 percent rating is warranted when there is malunion with marked knee or ankle disability. A 20 percent rating is warranted when there is malunion with moderate knee or ankle disability. A 10 percent rating is warranted when there is malunion with slight knee or ankle disability. On VA examination in December 2006, the Veteran reported lower left leg pain. He reported no left leg weakness. Prolonged walking aggravated his leg pain. He used Motrin for pain relief. The Veteran was able to walk without assistive devices. The Veteran reported left ankle pain in the anterior aspect. He reported ankle stiffness, but no locking or giving way of the ankle. The Veteran had missed no work days from his ankle disability. He was able to perform his job and his daily activities, but avoided heavy lifting, prolonged walking, and running. On examination, the Veteran walked with a small limp. There was mild tenderness at the area of a small indentation in the anterior aspect of the tibia where the fracture was. There was no evidence of malunion or nonunion. The examiner noted that the left leg was two centimeters shorter than the right leg. Dorsiflexion of the left ankle was from zero to 15 degrees. He could not flex further due to pain. Plantar flexion was from zero to 45 degrees with some pain noted at 45 degrees. Repetitive motion showed no additional loss of motion by pain, fatigue, weakness, or lack of endurance. There was no effusion, erythematous changes, muscle atrophy, muscle spasm, or instability of the left ankle. The examiner diagnosed status post left tibia and fibula fracture with residual tenderness at the fracture site with residual shorter left leg, strain of the left ankle with residual pain and some limitation of motion, but no instability. The examiner noted that the Veteran had left ankle strain caused by his limp from the shorter left leg. On VA examination in May 2008, the Veteran reported constant severe left lower leg and ankle pain. On examination, there was mild tenderness above the ankle at the lower tibia and fibula. Dorsiflexion was from zero to 15 degrees without pain. Plantar flexion was from zero to 25 degrees, with pain at 25 degrees. With repetition, there was no additional loss of motion secondary to pain, weakness, or lack of endurance. Left knee range of motion was from zero to 120 degrees, with pain at 120 degrees (the same as the right knee). On VA examination in October 2008, the Veteran reported constant left ankle pain. He also reported pain in the anterior tibial aspect of the left lower extremity. The Veteran had lost less than one week from work in the past year due to doctors' visits, problems with his knees, left leg, and left ankle. He could perform all his activities of daily living. The Veteran used a cane for walking. He was able to walk for one-quarter of a mile. Left ankle dorsiflexion was from zero to 20 degrees without pain. Planter flexion was from zero to 40 degrees without pain. There was no pain with repetitive use. The diagnosis was chronic left ankle strain. The available medical evidence does not show that the Veteran has significant loss of plantar flexion or dorsiflexion of the left ankle. His dorsiflexion has been noted to be 15 degrees (in December 2006 and May 2008) and 20 degrees (October 2008), and plantar flexion has been noted as 45 degrees (December 2006), 25 degrees (May 2008), and 40 degrees (October 2008). Repetitive testing has not been shown to result in additional limitations of motion. Since the Veteran's ankle disability is not characterized by marked loss of range of motion of the ankle, an increased 20 percent rating is not warranted under Diagnostic Code 5271. The evidence of record reveals complaints of ankle pain but the objective evidence does not demonstrate that the pain has resulted in additional functional limitation comparable to the next -higher percent rating under Diagnostic Code 5271. The Board has considered whether a higher rating may be warranted under another Diagnostic Code. As the evidence does not reflect ankylosis of the left ankle, a higher rating is not warranted under Diagnostic Code 5270, pertaining to ankylosis of the ankle. A separate rating is not warranted under DC 5262 as knee disability associated with the tibia and fibula fracture residuals is not demonstrated and the Veteran is already being compensated for his ankle disability. Therefore, the Board finds that the preponderance of the evidence is against the claim for an increased rating for the service-connected residuals of left tibia and fibula fracture with left ankle strain. 38 U.S.C.A. § 5107(b). Left Leg Shortening The RO has rated the Veteran's left leg length discrepancy under Diagnostic Code 5275, which pertains to shortening of bones of the lower extremities. 38 C.F.R. § 4.71a, Diagnostic Code 5275. Under Diagnostic Code 5275, a 10 percent rating is warranted for shortening of the bones of the lower extremity from 1 and 1/4 to 2 inches (3.2 cms to 5.1 cms). A 20 percent rating requires shortening of 2 to 2 and 1/2 inches (5.1cms to 6.4 cms). A 30 percent rating is warranted for shortening of the bones of the lower extremity from 2 and 1/2 to 3 inches (6.4 cms to 7.6 cms). A 40 percent rating requires shortening of 3 to 3 and 1/2 inches (7.6 cms to 8.9 cms). 38 C.F.R. § 4.71a, Diagnostic Code 5275. On VA examination in December 2006, the Veteran's left leg was measured at 86 centimeters with the right as 88 centimeters. The examiner attributed the discrepancy in leg lengths to the Veteran's tibia and fibula fractures. On VA examination in May 2008, the examiner noted that the left leg was approximately one centimeter shorter than the right leg. On VA examination in October 2008, the examiner measured the left leg as 92.2 centimeters in length and the right leg as 94.4 centimeters. The medical evidence does not show a left leg length discrepancy of from 1 and 1/4 to 2 inches (3.2 cms to 5.1 cms) as required for a higher (compensable) rating. Absent evidence of shortening of the left leg from 1 and 1/4 to 2 inches (3.2cms to 5.1cms, a compensable rating is not warranted under Diagnostic Code 5275. As the requirements for a compensable rating under Diagnostic Code 5275 are not met, a noncompensable (0 percent) rating is proper pursuant to 38 C.F.R. § 4.31. As the preponderance of the evidence is against a compensable rating for a left leg length discrepancy, the benefit-of-the-doubt rule does not apply. 38 U.S.C.A. § 5107(b). Extraschedular Consideration Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for a rating. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the disability level and symptomatology, then the disability picture is encompassed by the Rating Schedule, and the assigned schedular rating is, therefore, adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Comparing the Veteran's current disability levels and symptomatology to the Rating Schedule, the degree of disability is encompassed by the Rating Schedule and the assigned schedule ratings are adequate and no referral to an extraschedular rating is required under 38 C.F.R. § 3.321(b)(1). In other words, the Board finds that the rating criteria reasonably describe the Veteran's disabilities and symptomatology, and the Veteran does not have any symptomatology not already encompassed by the Rating Schedule. Total Disability Rating for Compensation Based on Individual Unemployability The Veteran has not raised and the record does not reasonably raise a claim for a total disability rating for compensation based on individual unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009) (in a claim for increase, where the Veteran expressly raises a claim for a total disability rating on the basis of individual unemployability or the claim is reasonably raised by the record, the claim is not a separate claim, but a part of a claim for increase). (The Order follows on the next page.). ORDER Service connection for a bilateral knee disability is denied. Service connection for a low back disability is denied. Service connection for a bilateral foot disability is denied. Service connection for a right ankle disability is denied. A rating in excess of 10 percent for status post tibia/fibula fracture with left ankle strain is denied. A compensable rating for left leg shortening is denied. REMAND On the claim of service connection for a bilateral hip disability, the Veteran asserts that the disability is caused by or aggravated by the service connected residuals of tibia and fibula fracture and a left leg length discrepancy. In May 2012, X-rays showed bilateral hip osteoarthritis and the Veteran has not waived initial review of the evidence by the RO. On the claim of service connection for a psychiatric disorder the Veteran stated that he has problems with stress and anxiety, which he attributes to events in service. On the claim of service connection for sleep apnea and insomnia, a private sleep study in February and March 2007 diagnosed sleep apnea. The Veteran states that his sleep problems are related to a psychiatric disorder. On the claim of service connection for a skin rash, the service treatment records show that the Veteran was treated on several occasions for tinea versicolor, which was also noted on separation examination in January 1990. On the claim of service connection for disabilities of the respiratory system and chest, the service treatment records show that the Veteran complained of chest wall pain in April 1977, that he suffered a laceration of the chest from a knife wound in October 1979, and that he was treated for a deep bruise or contusion of the chest in June 1987 that resulted in atelectasis. After service, the Veteran complained of dyspnea in November 2005 and COPD was noted in September 2006. As the evidence of record is insufficient to decide the claims under the applicable theories of service connection, additional development under the duty to assist is needed. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran a VA examination to determine: Whether osteoarthritis of the left hip and right hips is caused by or aggravated by the service-connected residuals of tibia and fibula fracture and left leg length discrepancy. In this context, "aggravation" means a chronic or permanent worsening of the claimed condition by the service-connected disabilities as opposed to a temporary flare-up of symptoms. The Veteran's file must be reviewed by the VA examiner. 2. Afford the Veteran a VA examination to determine: Whether the Veteran has a current respiratory disability or chest disability, and, if so, whether the current disability is the result of the in-service treatment for chest wall pain in April 1977, a laceration of the chest from a knife wound in October 1979, or a deep bruise or contusion of the chest in June 1987 with atelectasis. The Veteran's file must be reviewed by the VA examiner. 3. Afford the Veteran a VA examination to determine: Whether the Veteran has skin disease, and, if so, whether the current disability is a progression of tinea versicolor in service or the development of a new and separate condition. The Veteran's file must be reviewed by the VA examiner. 4. Afford the Veteran a VA examination to determine: Whether the Veteran had a psychiatric disorder and, if so, whether the psychiatric disorder is related to events in service as described by the Veteran. If the Veteran has a psychiatric disorder, the VA examiner is asked whether the Veteran's insomnia or sleep apnea was caused by or aggravated by the psychiatric disorder or a separate disability. The Veteran's file must be reviewed by the VA examiner. 5. After the development has been completed, adjudicate the claims. If any benefit sought is denied, furnish the Veteran and his attorney a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claims 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. 2010). ______________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs