Citation Nr: 1313229 Decision Date: 04/19/13 Archive Date: 05/02/13 DOCKET NO. 06-28 266 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a compensable initial evaluation prior to October 5, 2009 for post-operative appendectomy scar residuals with a history of hernia, and an initial evaluation in excess of 10 percent from October 5, 2009. 2. Entitlement to an initial disability evaluation in excess of 10 percent for post-operative right tibial and fibular fracture residuals and right knee patellar tendonitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from April 1981 to November 2004. These matters come before the Board of Veterans' Appeals (Board) from a December 2004 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in St. Petersburg, Florida. In June 2007, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. These matters were previously before the Board in December 2007, May 2010, and August 212 and were remanded for further development. They have now returned to the Board for further appellate consideration. The Board finds that VA substantially complied with the mandates of its remands and will proceed to adjudicate the appeal. The issue of entitlement to an initial rating in excess of 30 percent for labyrinthitis with benign positional vertigo and tinnitus (claimed as Meniere's disease) has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). (See March 2013 correspondence from Veteran.) Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The earliest clinical evidence of pain on examination of an abdominal superficial scar is in June 2007. 2. The competent credible clinical evidence of record reflects that the Veteran's service-connected superficial abdominal scar is approximately 7.0 cm x 1/3 cm in size, moves freely with the surrounding skin, is without pigmentation change, is without damage to the underlying tissue, is without functional limitation, and is without signs of inflammation. 3. The Veteran is less than credible with regard to the extent of his service-connected scar symptoms, to include limitation of motion and excessive pain. 4. The Veteran is less than credible with regard to the extent of his service-connected post-operative right tibial and fibular fracture residuals and right knee patellar tendonitis disability symptoms. 5. Throughout the rating period on appeal, the Veteran's service-connected post-operative right tibial and fibular fracture residuals and right knee patellar tendonitis disability has been manifested by complaints of numbness, limitation of motion, and pain; objectively, the Veteran has a mildly antalgic gait at times, decreased sensation in the right lower extremity, no muscle atrophy, no hypertrophy, full extension and flexion of the right knee, no instability, no meniscal tear, a negative grind test, right ankle dorsiflexion from 0 to 10 degrees, right ankle plantar flexion from 0 to 30 degrees, no tenderness, no spasm, no edema, normal reflexes and normal strength, reflecting no more than a slight disability. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 10 percent, and no higher, for post-operative appendectomy scar residuals with a history of hernia from June 18, 2007, and no earlier, are met. 38 U.S.C.A. §§1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.350, 4.118, Diagnostic Codes 7800-7805 (prior to October 23, 2008). 2. The criteria for a disability rating in excess of 10 percent from June 18, 2007 for post-operative appendectomy scar residuals with a history of hernia are not met. 38 U.S.C.A. §§1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.350, 4.118, Diagnostic Codes 7800-7805 (prior to October 23, 2008 and from October 23, 2008). 3. The criteria for a rating in excess of 10 percent for post-operative right tibial and fibular fracture residuals and right knee patellar tendonitis are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R.§§ 3.321, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5256 - 5263 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). See also Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). This appeal arises from the Veteran's disagreement with initial evaluations following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). No additional discussion of the duty to notify is therefore required. VA also has a duty to assist the Veteran in the development of a claim, which is not abrogated by the granting of service connection. The claims file contains service treatment records (STRs), VA and private medical records and correspondence, and the statements of the Veteran and his spouse in support of his claims. The Board has considered the statements and perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims for which VA has a duty to obtain. The Veteran was afforded VA examinations in August 2004, October 2009, and October 2012. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the examinations are adequate, as they include clinical examinations and interviews with the Veteran with regard to his symptoms. The reports of the examination contain findings necessary to evaluate the Veteran's service-connected disabilities under the applicable diagnostic code rating criteria. Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c) (4). Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claims. Essentially, all available evidence that could substantiate the claims has been obtained. Legal Criteria Rating Disabilities - in general Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. Id. § 4.3. In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Moreover, an appeal from the initial assignment of a disability rating, such as the appeal in this case, requires consideration of the entire time period involved, and contemplates staged ratings where warranted. See Fenderson, supra. Rating Scar(s) While the Veteran's claim was pending, new rating criteria for evaluating skin disabilities became effective on October 23, 2008; these regulations apply only to claims filed on or after October 23, 2008, or when requested by the Veteran. However, the Board has an obligation to consider all potentially applicable provisions of law and regulation and to apply the diagnostic criteria in a manner that maximizes his benefits. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); Bradley v. Peake, 22 Vet. App. 280 (2008). The revised diagnostic criteria are potentially applicable for purposes of establishing an appropriate rating from October 23, 2008, onward. See Fenderson v. West, 12 Vet. App. 119 (1999). The rating criteria applicable for rating scars, as in effect prior to October 23, 2008, are as follows: The following rating criteria are effective prior to October 23, 2008: Diagnostic Code (DC) 7801 provides ratings for scars, other than the head, face, or neck, that are deep or that cause limited motion. Scars that are deep or that cause limited motion in an area or areas exceeding 6 square inches (39 sq. cm.) are rated 10 percent disabling. Scars in an area or areas exceeding 12 square inches (77 sq. cm.) are rated 20 percent disabling. Scars in an area or areas exceeding 72 square inches (465 sq. cm.) are rated 30 percent disabling. Scars in an area or areas exceeding 144 square inches (929 sq.cm.) are rated 40 percent disabling. Note (1) to Diagnostic Code 7801 provides that scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25. Note (2) provides that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118. DC 7802 provides ratings for scars, other than the head, face, or neck, that are superficial or that do not cause limited motion. Superficial scars that do not cause limited motion, in an area or areas of 144 square inches (929 sq. cm.) or greater, are rated 10 percent disabling. Note (1) to Diagnostic Code 7802 provides that scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25. Note (2) provides that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118. DC 7803 provides a 10 percent rating for superficial unstable scars. Note (1) to DC 7803 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118. DC 7804 provides a 10 percent rating for superficial scars that are painful on examination. Note (1) to DC 7804 provides that a superficial scar is one not associated with underlying soft tissue damage. Note (2) provides that a 10-percent rating will be assigned for a scar on the tip of a finger or toe even though amputation of the part would not warrant a compensable rating. 38 C.F.R. § 4.118. DC 7804 also directs the rater to see 38 C.F.R. § 4.68 (amputation rule). 38 C.F.R. § 4.118. DC 7805 provides that other scars are to be rated on limitation of function of affected part. 38 C.F.R. § 4.118. The following rating criteria are effective October 23, 2008: Diagnostic Code 7801 pertains to burn scars or scars due to other causes, not of the head, face, or neck, that are deep and nonlinear. Where there is evidence of such a scar area or areas exceeding 6 square inches (39 sq. cm.), a 10 percent evaluation will be assigned. A 20 percent evaluation is warranted where there is evidence of a scar area or areas exceeding 12 square inches (77 sq. cm.). A 30 percent evaluation is warranted where there is evidence of a scar area or areas exceeding 72 square inches (465 sq. cm.). A 40 percent evaluation for area or areas exceeding 144 square inches (929 sq. cm.) is assignable. 38 C.F.R. § 4.118, Diagnostic Code 7801 (2012). Note (1) to Diagnostic Code 7801 defines a deep scar which is one associated with underlying soft tissue damage. Id. Note (2) to Diagnostic Code 7801 provides that if multiple qualifying scars are present, or if a single qualifying scar affects more than one extremity, or a single qualifying scar affects one or more extremities and either the anterior portion or posterior portion of the trunk, or both, or a single qualifying scar affects both the anterior portion and the posterior portion of the trunk, assign a separate evaluation for each affected extremity based on the total area of the qualifying scars that affect that extremity, assign a separate evaluation based on the total area of the qualifying scars that affect the anterior portion of the trunk, and assign a separate evaluation based on the total area of the qualifying scars that affect the posterior portion of the trunk. The midaxillary line on each side separates the anterior and posterior portions of the trunk. Combine the separate evaluations under 38 C.F.R. § 4.25. Qualifying scars are scars that are nonlinear, deep, and not located on the face, head or neck. Id. Under Diagnostic Code 7802, burn scars or scars due to other causes, not of the head, face, or neck, that are superficial and nonlinear, and that involve an area of 144 square inches (929 sq. cm.) or greater, warrant a 10 percent rating. Under Note (1) to Diagnostic Code 7802, a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118 (2012). Under Diagnostic Code 7804, one or two scars that are unstable or painful warrant a 10 percent rating. If one or more scars are both unstable and painful, 10 percent is to be added to the evaluation that is based on the total number of unstable or painful scars. Scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an additional evaluation under this diagnostic code, when applicable. 38 C.F.R. § 4.118 (2012). Under Diagnostic Code 7805, any disabling effects of other scars (including linear scars), and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804 not considered in a rating provided under Diagnostic Codes 7800-7804 are to be evaluated under an appropriate Diagnostic Code. 38 C.F.R. § 4.118 (2012). Rating Musculoskeletal System Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40 and 4.45 (2012), see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2012). The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. Id. § 4.45. Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence pertinent issues on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. Post Appendectomy/Hernia Repair Scar Historically, the Veteran had an appendectomy using a Rockey-Davis incision in June 1994. Five days later, the Rockey-Davis incision was surgically reopened due to a wound abscess and small pericecal fluid collection without frank pus. Five years later, in February 1998, a wound exploration/scar revision/ hernia repair was performed due to complaints of pain. A small hernia (1 cm fascial defect in the medial portion of the wound) was noted and repaired. Service connection has been established effective from December 1, 2004 for a scar, status post appendectomy with history of a hernia, evaluated as noncompensable prior to October 5, 2009, and as 10 percent disabling from October 5, 2009. The Veteran contends that a higher rating is warranted. An August 2004 VA examination report is of record. It reflects that the Veteran reported that he no longer has pain in the area of the scar except when he sneezes. The report also reflects that the scar was 6 cm and flat with slight concavature. The examiner found that there was no pain on palpation. In his November 2005 notice of disagreement, the Veteran stated that his scar is "occasionally sensitive, but bigger problem is damage that was done to muscles in stomach." He alleged that the scar causes excessive pain in the right side, which causes excessive pain in the back requiring him to rest. (The Board notes that a May 2006 VA examination report reflects that the Veteran reported the onset of his low-back pain in 1982 or 1983, many years prior to his appendectomy. He also reported that the pain in his midline and pointed to the entire lumbar spine area. He described a constant pain which was dull and achy, and also sharp at times. An August 2006 VA examination report also reflects that the Veteran reported back pain beginning in the late 1980s. The reports are negative for any clinical findings that the Veteran's scar was related to his back pain.) When considered with the record as a whole, the Board finds that the Veteran is less than credible with regard to any statement that his scar causes pain in the back which affects his entire lumbar spine and causes limitation of motion. In private medical correspondence dated in June 2007, Dr. J. R., stated that the Veteran "had an appendectomy with scar revision in 1998, yet his scar was still apparent" on recent June 18, 2007 examination and there was "an obvious dimpling defect, with pain and weakness in the area. The patient has asked that I report these findings to you." This is the earliest finding of pain on examination during the rating period on appeal. The Veteran testified at a June 2007 Board hearing that his appendectomy scar is tender and painful. He testified that "especially after a day, it gets bothered at that. It used to not be as bad with the flight suit, because it wasn't rubbed. And then, also sitting, it kind of compresses it and makes it sore. The whole right side feels like it's hanging down, due to - they told me that they removed a large piece of muscle on the bottom layer when I had the appendectomy. Actually I had three total surgeries with it." He further testified that he has a feeling or a sensation of pulling around the side. He stated that when he twists or reaches, the side actually feels like it gives out and makes his back feels like it pops out. (See Board hearing transcript pages 25 and 26.) An October 2009 VA examination report is of record. The Veteran reported that he had a constant ticklish to tenderness along the belt line and a soreness underneath the scar which never goes away. Upon clinical examination, the Veteran reported tenderness with palpation of the surgical scar. There was no inguinal mass, hernia, or muscle wall abnormality. The right lower abdomen scar was 7.0 cm x 1/3 cm without pigmentation change. The examiner noted that it was "ever so slightly depressed in a crease." There was no damage to the underlying tissue. There was no functional limitation, and the scar moved freely with the surrounding skin without disfigurement or significant asymmetry. The diagnosis was status post appendectomy and incisional herniorrhaphy scar with no functional limitations and no objective residuals. An October 2012 VA examination report is of record. The Veteran was diagnosed with a status post appendectomy and incisional repair scar. There was no functional limitation. Upon clinical examination, the Veteran's scar was slightly depressed on the crease. It moved freely with the surrounding skin, the skin showed normal pigmentation and was nontender on deep palpation. There were no signs of inflammation. The report reflects that the Veteran reported one painful scar along the belt line. It was noted that there were no unstable scars. The examiner noted one deep non linear scar which was 7.5 x .5 cm in size. The examiner noted that "the Veteran's subjective complaints are not consistent with objective clinical findings." In a statement dated in March 2013, the Veteran stated that he believes that he is entitled to a 20 percent evaluation as he believes that he has between five and 13 scars. He surmises that his three operations on the same area equate to possibly three incision scars, one drain scar, plus three layers of muscle that have been scarred three different times. The Board acknowledges that the Veteran has undergone surgery on three occasions. In addition, the Board acknowledges that the Veteran may believe that he has been told that he has muscle damage or internal scarring. The Board finds that the Veteran has not been shown to be competent to provide evidence as to internal scars and muscle damage. While a Veteran is competent to report obviously visible scars on the outer layer of the skin, a finding that a Veteran has internal scarring is beyond the scope of a layperson. Moreover, as the Court has noted "the connection between what a physician said and the layman's account of what he purportedly said, filtered as it was through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute 'medical' evidence." Robinette v. Brown, 8 Vet. App. 69, 77 (1995). (1995). The VA examiners have consistently noted that the Veteran does not have functional limitation due to his scar. As noted in the clinical records, the Veteran does not have a muscle wall abnormality or damage to the underlying tissue. The Veteran's speculation that he may have 13 scars, and that his muscles were cut on several occasions, is not supported by the evidence of record. As noted above, the evidence reflects that the initial appendectomy was performed using a Rockey-Davis incision, which is indicative that the muscles were separated to allow access to the appendix, rather than cut. In addition, the subsequent surgery five days later, reopened the original incision. (See STRs.) The Board has considered both the pre-2008 diagnostic codes and the current diagnostic codes for the applicable periods of time, in determining that a rating in excess of 10 percent is not warranted for any period on appeal. The Board finds that the earliest clinical finding of pain on examination is the June 18, 2007 finding by Dr. J.R. Thus, a 10 percent, and no higher is warranted under the diagnostic code in effect at that time, DC 7804, from June 18, 2007. The evidence is against a finding that the Veteran has deep nonlinear scars of an area at least 6 square inches in size; thus, a compensable evaluation under DC 7801 is not warranted. The evidence is against a finding that the Veteran has a superficial scar in an area of 144 square inches or greater; thus a compensable evaluation under DC 7802 is not warranted. The evidence is against a finding that the Veteran has an unstable scar; thus a compensable evaluation under DC 7803 is not warranted. The evidence is against a finding that the Veteran has a scar which causes a limitation of function of affected part; thus a compensable evaluation under DC 7805 is not warranted. In rating scars, the Board has considered that the total scar area is 7.5 x .5 cm in size and that the scars are not in widely separate areas. In conclusion, the evidence of record is against a finding that the Veteran's service-connected scar warrants a rating in excess of 10 percent for any time period on appeal. The Board finds that a 10 percent rating, and no higher, is warranted from June 18, 2007, and no earlier. As the preponderance of the evidence is against the claim for a rating in excess of 10 percent, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Tibial and Fibular Fracture Service connection has been established for patellar tendonitis of the right knee, residual of tibia/fibula fracture surgery (also claimed as ankle and nerve damage) evaluated as 10 percent disabling, effective from December 1, 2004. The Veteran contends that a higher rating is warranted. An August 2004 VA examination report is of record. It reflects that the Veteran reported that he has had complications with numbness in his ankle due to his right tibia/fibula fracture. He reported that "sometimes the ankle flexes and stays in that position and he has to apply pressure to it to bring it back to normal." Upon physical examination, the examiner noted that there was no complaint of pain on palpation of the tibia fibular area; however, the Veteran has diminished sensations of the L5 area, lateral aspect of the leg and the dorsum and plantar aspects of the foot. He diagnosed the Veteran with fractured right tibia fibula with hip, knee, ankle nerve damage with residual. In his November 2005 notice of disagreement, the Veteran stated that his entire leg and hip were affected from the broken leg. He stated that his hip is routinely sore with painful and limited movement. He noted that it is very painful when working out or sitting for extended periods of time and requires numerous stretches to keep flexible. (The Veteran is not service connected for a right hip disability.) A May 2006 VA examination report, with regard to the Veteran's back, reflects that the Veteran reported some intermittent numbness in the right leg which he alleged was due to the tibia/fibular disability. He denied the use of a cane, crutches, or walker for assistance. The Veteran had lower extremity deep tendon reflexes of 2+ which were symmetrical bilaterally. He had a "mildly" antalgic gait. There was decreased sensation in the right lower extremity. There was no muscle atrophy. In private medical correspondence dated in June 2007, Dr. J. R., stated that the Veteran "suffered a broken leg in 1984 which has left him with a persistently externally-rotated lower extremity with an obvious limp when he walks. He was found on his visits to have limited extension and painful movement at the right foot, ankle, knee and hip, secondary to his broken leg." Dr. J.R. did not provide more specific clinical findings, to include degrees of ranges of motion. He did not provide sufficient rationale as to how the Veteran's service-connected disability affected his hip. The Veteran testified at a June 2007 Board hearing that he takes Motrin and aspirin for his knee. He stated that his pain, on a scale of 1 to 10, was a three, but it will go up to a four or five if he has to go upstairs a lot, or at the end of the day, or if he had to walk. He further testified that he cannot extend his knee fully or pull it down fully. He testified that he has to grab onto in and pull it because it is tight and sore, and that it "cracks a lot." He also testified that he feels like it is "about to go out, it swells up, and he stopped playing golf because of the soreness. (See Board hearing transcript pages 18-21.) In a statement dated in March 2008, the Veteran stated numerous symptoms to include that he has nerve and muscle problems, and an altered gait. He stated that his feet and toes cramp, he has daily pain, he takes Motrin daily, he has sleep difficulty, changes in weather increase the pain, he has ankle locking, his service-connected disability has caused chronic hip pain, and he has limited his physical activity due to pain. His wife, who identified herself as having educational degrees in nursing, agreed with the Veteran's statements and stated that she has seen the effect of his disability on him. The Veteran's wife did not provide sufficient rationale as to how the Veteran's chronic hip pain was secondary to his service-connected tibia and fibula fracture with patellar tendonitis, or provide ranges of motion for the Veteran's leg . Moreover, the Board finds that the VA examination reports, which reflect a thorough examination of the Veteran, provide numerical degrees of range of motion, and are objective, are more probative as to his symptoms. See Cartright v. Derwinski, 2 Vet. App.24, 25 (1991) (finding that, while the Board may not ignore a Veteran's testimony simply because he or she is an interested party and stands to gain monetary benefits, personal interest may affect the credibility of the evidence); see also Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the testimony). An October 2009 VA examination report is of record. It reflects that the Veteran reported that he is unable to run or bike because of his leg. He noted that the hip hurts and makes sleep difficult. He reported no physical therapy or injection therapy in recent years. He reported that he takes Motrin as needed on a daily basis for his entire leg, and he could not separately identify the pain throughout the entire leg. He reported that he can only walk about 1/2 mile on a flat surface and stand approximately 30 minutes. He reported flare-ups by the end of the week if he worked all week. The Veteran reported pain and stiffness of the entire knee, that he was unable to tolerate any pressure on the knee, and that the ankle feels constantly stiff with intermittent cracking. He also reported that he has right foot nerve damage from the lateral knees to the foot, and that his foot pulls down and he has cramping. Upon clinical examination in October 2009, the Veteran had a scar on the right knee which was 6 cm by 1/3 cm. It was flat, slightly hypopigmented, non tender, and without tissue loss or keloid. There was no functional limitation, no disfigurement, and no asymmetry. The Veteran had a normal gait without the need for assistive devices. There was no evidence of atrophy or hypertrophy. The Veteran reported an inability to toe walk; however he failed to bend his knee for this activity. He reported decreased pinprick to the entire lower leg below the knee, including the foot and great toe. The examiner noted that this was not consistent with the injury or surgery. The Veteran had right knee flexion from 0 to 140 degrees, and full extension. His medial and lateral collateral ligaments and anterior and posterior cruciate ligaments were stable. He had a negative McMurray test, negative grind test, and no instability. His right ankle had dorsiflexion from 0 to 10 degrees. He had plantar flexion from 0 to 35 degrees, which was limited by difficulty without inverse or eversion laxity. There was no other painful motion, tenderness, spasm, edema, fatigability, lack of endurance, weakness, or instability. The examiner found that despite the range of motion and subjective complaints of the hip, there was no objective finding to support a right hip condition. He also found no functional limitation of the right knee. There was residual mild functional limitation of the right ankle. The examiner also noted that the subjective complaints were not consistent with the objective findings. The examiner found that any right hip condition is not caused by or related to the Veteran's right knee, ankle, or leg disability. An October 2012 VA examination report is of record. The Veteran was noted to have an antalgic gait but was not in need of an assistive device. He had reflexes of "2", strength testing was 5 out of 5, he could walk heel to toe, and he had decreased pinprick on the right midcalf. There was no atrophy and no imbalance. The diagnosis was "mild functional limitation of the right ankle". The examination report also reflects that the Veteran had ankle dorsiflexion from 0 to 30 degrees. His right knee flexion was 140 degrees or greater with no objective evidence of painful motion. Right knee extension was full with no objective evidence of painful motion. The Veteran was able to perform repetitive use testing with three repetitions with no change in limitation of motion. The examiner noted that the Veteran's complaints of stiffness, and difficulty with balance, climbing stairs, walking, traveling, and playing sports were consistent with his disability. The examiner noted that the Veteran reported a burning and tingling sensation like a "funny bone" when applying deep pressure to the right calf. The Veteran did not have tenderness or pain to palpation. Muscle strength to flexion and extension was a 5 out of 5. There was normal joint anterior stability, posterior stability, and medial-lateral stability. There was no evidence or history of recurrent patellar subluxation or dislocation. The Veteran did not have "shin splints", stress fracture, chronic exertional compartment syndrome, acquired traumatic genu recurvature, or leg length discrepancy. There was no meniscal condition, and no total knee replacement. The examiner noted that there was decrease sensation to light touch and pinprick over the right midcalf, cramping of muscles on deep palpation. There was no degenerative or traumatic arthritis on imaging. There was no evidence of patellar subluxation on x-ray. The Veteran reported that he has right knee pain down to the right leg which gets more painful when it gets cold, when he crosses his legs while seated, or when he tries to stretch the right leg after sitting for a prolonged period of time. Upon clinical examination, the Veteran had dorsiflexion from 0 to 10 degrees, and plantar flexion from 0 to 30 degrees. As noted above, the examiner found "mild functional limitation of the right ankle." In a statement dated in March 2013, the Veteran stated that his right leg has half the range of motion of the left leg, the ankle routinely locks up, it is extremity painful, there is marked nerve damage and weakness in the entire leg, he has pain extending through the hip area, and he cannot walk without pain and a limp. As noted above, the Veteran's disability is currently evaluated as 10 percent disabling, under DC 5262. The Board finds that the evidence of record does not reflect that a higher rating is warranted. In order to warrant a higher rating, the Veteran would have to have more than a slight knee or ankle disability. The Board has considered the statements of the Veteran and notes that he is competent to report pain and loss of range of motion; however, the Board finds that the clinical examinations which provide objective findings of degrees of limitation of motion, and use various tests for stability, are more probative than the Veteran's assertions. The Board finds that the evidence of record is against a finding of moderate or marked knee or ankle disability. The Board acknowledges that the June 2007 correspondence from Dr. J.R. reflects that the Veteran has limited extension and painful movement of the "right foot, ankle, knee, and hip"; however, the examiner did not state how this was evaluated. Importantly, he did not quantify any limitation of motion or functional loss by degrees or by a descriptive term which the Board could find synonymous with "slight", "moderate", or "marked". By contrast, the VA examination reports provide descriptive, thorough findings which note range of motion in degrees. In sum, upon clinical examination in October 2009, the Veteran had full right knee flexion and extension. There was no objective finding of functional limitation of the knee. The October 2012 VA examination report also reflects full right knee flexion and extension, with no objective evidence of painful motion. A claimant who has both limitation of flexion and limitation of extension of the same leg must be rated separately under DCs 5260 and 5261 to be adequately compensated for functional loss associated with injury to the leg. As such, if the evidence of record reflects compensable loss of both flexion and extension of either leg, the Veteran would be entitled to the combined evaluation under DCs 5260 and 5261, per the combined ratings table in 38 C.F.R. § 4.25. VAOPGCPREC 9 - 2004 (Sept. 17, 2004). In the present claim, the competent and credible probative evidence of record reflects that the Veteran has neither limitation of flexion nor limitation of extension. Thus, the evidence does not reflect that the Veteran is entitled to a compensable rating under DC 5256 (ankylosis of the knee), DC5260 (limitation of flexion) or DC 5261 (limitation of extension). Despite the Veteran's contention that he has difficulty with his right leg, the VA examiners did not find limitation of motion of the knee, and found no atrophy. If the Veteran's disability situation were akin to a great deal of loss of motion or ankylosis, it could be reasonably be expected that there would be clinical evidence of abnormal muscle tone or atrophy due to nonuse; such is not the case. Moreover, none of the examiners has indicated that the Veteran's disability symptomatology and manifestations are equivalent to ankylosis. To the contrary, he had full extension and flexion. The Board acknowledges the Veteran's statement that his knee feels like it is "about to go out". His report of the sensation that his knee may go out, or feels like it may be unstable, is subjective in nature. Joint instability can be objectively diagnosed upon clinical examination. As noted above, the October 2009 report reflects that the Veteran had no instability of the knee upon clinical examination. The October 2012 report also reflects no instability of the knee upon clinical examination. Clinical testing has found his medial and lateral collateral, and anterior and posterior cruciate ligaments to all be stable. There is also no clinical evidence of subluxation, removal of semilunar cartilage, or dislocated semilunar cartilage with frequent episodes of locking pain and effusion into the joint. Thus, the evidence does not reflect that the Veteran is entitled to a compensable rating under DC 5257 (recurrent subluxation or lateral instability), DC 5258 (dislocated semilunar cartilage), or DC 5259 symptomatic removal of cartilage). With regard to the ankle, normal ankle dorsiflexion is to 20 degrees, and normal ankle plantar flexion is to 45 degrees. The October 2009 report reflects that the Veteran had dorsiflexion from 0 to 10 degrees and plantar flexion from 0 to 35 degrees. The examiner described the functional limitation of the right ankle as mild. The October 2012 VA examination report also reflects "mild functional limitation of the right ankle" with dorsiflexion, after repetitive use, from 0 to10 degrees and plantar flexion from 0 to 30 degrees. The examiner noted functional loss was due to burning and tingling sensation like a "funny bone" when applying deep pressure over the right calf. The Board finds that the evidence of record is against a finding of moderate or marked knee or ankle disability. The Board has considered the clinical evidence of record, as well as the Veteran's subjective complaints. The Board has also considered that the Veteran is treated by over-the-counter medication, has not had physical therapy in recent years, and does not need an assistive device such as a cane, walker, or wheelchair. The Board finds that the Veteran's symptoms, to include an altered gait, pain, and numbness or tingling, are adequately considered in the 10 percent evaluation. The Board finds that the Veteran is not entitled to a separate rating for a scar of the leg. An October 2009 VA examination report reflects the Veteran had a scar on the right knee which was 6 cm by 1/3 cm, flat, slightly hypopigmented, nontender, and without tissue loss or keloid. There was no functional limitation, disfigurement, or asymmetry; thus, a compensable evaluation for a scar is not warranted. In conclusion, the evidence of record is against a finding that the Veteran's service-connected post-operative right tibial and fibular fracture residuals and right knee patellar tendonitis, warrants an evaluation in excess of 10 percent. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Extra schedular The Board has considered that the Veteran has several service-connected disabilities and has determined which symptoms are attributable to a service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). An extraschedular disability rating would be warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) . The discussion above reflects that the rating criteria reasonably describes and contemplates the severity and symptomatology of the Veteran's service-connected disabilities. Scars are rated based on numerous factors discussed above. The Board has considered the Veteran's contentions, and finds that there is no credible statement of a symptom which is not considered in the rating criteria. The Veteran is competent to state that his surgical scar is painful and limits his motion; however, the Board finds that he is less than credible with regard to the extent of his pain and the effects of it. The Veteran alleges that his scar causes excessive back pain; however, the Board notes that when examined for his back pain, the Veteran contended that his back pain began years before his abdominal surgery. Importantly, the October 2009 VA examination report reflects that there were no objective residuals of the surgical scar, other than the "ever so slightly depressed crease" and that the scar moves freely with the surrounding skin with no functional limitations. The October 2012 VA examination report noted that the scar was nontender on deep palpations, and that the Veteran's subjective complaints are not consistent with objective clinical findings, which included that the scar moves freely with the surrounding skin with no functional limitations. (The Veteran has previously been denied entitlement to service connection for a back disability.) The rating criteria for tibia/fibula and knee disabilities consider limitation of motion and instability, as well as all other symptoms which can be considered under the categories of "slight", "moderate", or "marked". The Board does not find that there is any competent credible evidence that the Veteran's disabilities are manifested by symptoms which are not considered in the Veteran's rating evaluations. The Board finds that the competent credible evidence of record is against a finding that the Veteran has chronic hip pain related to his service-connected tibia/fibular disability. (The Veteran has been previously denied service connection for a right hip disability secondary to fracture of the right tibia/fibula). In addition, factors such as that the Veteran has to sleep with a pillow under knee for comfort, takes over-the counter medication, and has given up sports, has been contemplated in the rating of "slight" disability; therefore, referral for consideration of an extraschedular rating is not warranted. Thun v. Peake, 22 Vet. App. 111 (2008). Total rating for compensation purposes based on individual unemployability (TDIU) Entitlement to an extra-schedular rating under 38 C.F.R. § 3.321(b)(1) and a TDIU extra-schedular rating under 38 C.F.R. § 4.16(b), although similar, are based on different factors. See Kellar v. Brown, 6 Vet. App. 157 (1994). An extra-schedular rating under 38 C.F.R. § 3.321(b)(1) is based on the fact that the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the Veteran's disabilities. In addition, exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, are required. In contrast, 38 C.F.R. § 4.16(b) merely requires a determination that a particular Veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. See VAOPGCPREC 6-96. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for TDIU, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. Initially, the Board notes that the Veteran does not meet the criteria for TDIU under 38 C.F.R. § 4.16(a). An August 2006 VA examination report reflects that the Veteran works full time and "able to do his job. There were no disabilities on examination which would prevent employability." The October 2010 VA examination report reflects that the Veteran is currently employed. The October 2012 VA examination report reflects that the Veteran is employed, in addition to owning his own separate business. There is no competent credible evidence of record that the Veteran has been unable to maintain substantially gainful employment due to his service-connected disabilities. Based on the foregoing, the Board finds that a remand for RO consideration of entitlement to TDIU is not warranted. ORDER Entitlement to a compensable initial rating prior to June 18, 2007 for post-operative appendectomy scar residuals with a history of hernia, is denied. Entitlement to an initial 10 percent evaluation, and no higher, from June 18, 2007 for post-operative appendectomy scar residuals with a history of hernia, is granted. Entitlement to an initial rating in excess of 10 percent from October 5, 2009 for post-operative appendectomy scar residuals with a history of hernia, is denied. Entitlement to an initial disability evaluation in excess of 10 percent for post-operative right tibial and fibular fracture residuals and right knee patellar tendonitis is denied. ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs