Citation Nr: 1313554 Decision Date: 04/23/13 Archive Date: 05/03/13 DOCKET NO. 02-09 598 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a left foot disability to include as secondary to service-connected left knee and left ankle disabilities. 2. Entitlement to an initial compensable rating for residuals of repair of the rectus abdominal muscle. REPRESENTATION Veteran is represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The Veteran, who is the Appellant, served on active duty from May 1980 to May 1987. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions in August 2001 (increase rating claim) and in May 2005 (service connection claim) of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2008, the Veteran notified the Board that she did not want a hearing before Board. In a decision in December 2008, the Board reopened the claim of service connection for a left foot disability and remanded the reopened claim as well as the claim for increase for residuals of a repair of the rectus abdominal muscle. In February 2011 and August 2012, the Board remanded the claims for further development. As the requested development has been completed, no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. A left foot disability, including calluses on the plantar aspect of the the left great toe and the fourth toe, bunion, hammertoes, and pes planus, was not affirmatively shown to have had onset during service; a left foot disability, including calluses on the plantar aspect of the the left great toe and the fourth toe, bunion, hammertoes, and pes planus, first documented after service, is unrelated to an injury, disease, or event in service; and a left foot disability, including calluses on the plantar aspect of the left great toe and the fourth toe, bunion, hammertoes, and pes planus, was not caused by or made worse by the service-connected left knee and left ankle disabilities. 2. The residuals of repair of the rectus abdominal muscle result in no more than slight impairment of Muscle Group XIX. CONCLUSIONS OF LAW 1. The criteria for service connection to include secondary service connection for a left foot disability, including calluses on the plantar aspect of the the left great toe and the fourth toe, bunion, hammertoes, and pes planus, have not been met. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). 2. The criteria for an initial compensable rating for residuals of repair of the rectus abdominal muscle have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. § 4.73, Diagnostic Code 5319 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify When VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). On the claim of service connection for a left foot disability, the RO provided pre-and post- adjudication VCAA notice by letters dated in in November 2004, in June 2005, in January 2009, and in August 2012. The Veteran was notified of the evidence needed to substantiate the claim of service connection, including secondary service connection, namely, evidence of current disability; evidence of an injury or disease in service or event in service, causing injury or disease; and evidence of a relationship between the current disability and the injury, disease, or event in service; or evidence that a service-connected disability either caused or aggravated the claimed disability. The Veteran was notified that VA would obtain VA records and records of other Federal agencies, and that she could submit other records not in the custody of a Federal agency, such as private medical records or with her authorization VA would obtain any such records on her behalf. The notice included the provisions for the effective date of the claim and for the degree of disability assignable. As for the content the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112 (2004) (to the extent of pre-adjudication VCAA notice); and of Dingess v. Nicholson, 19 Vet. App. 473 (notice of the elements of the claim). To the extent that the VCAA notice came after the initial adjudication, the timing of the notice did not comply with the requirement that the notice must precede the adjudication. The timing error was cured by content-complying VCAA notice after which the claim was readjudicated as evidenced by the supplemental statement of the case dated in January 2013. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.). On the claim for increase for residuals of a repair of the rectus abdominal muscle, the RO provided pre-adjudication VCAA notice by letter, dated in February 2001, on the underlying claim of service connection. Where, as here, service connection has been granted and the initial rating has been assigned, the claim of service connection has been more than substantiated, the claim has been proven, and further notice under 38 U.S.C.A. §5103(a) is no longer required because the purpose that the notice was intended to serve has been fulfilled. Once the claim of service connection has been substantiated, the filing of a notice of disagreement with the RO's initial rating of the disability, following the initial grant of service connection, does not trigger additional notice under 38 U.S.C.A. § 5103(a). Therefore, further VCAA notice under 38 U.S.C.A. § 5103(a) is no longer applicable in the claim for an initial higher rating. Goodwin v. Peake, 22 Vet. App. 128, 136 (2008). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained service treatment records and VA records, and private medical records. The Veteran was afforded VA examinations. As the examination reports are based on review of the Veteran's history and described the current findings in sufficient detail so that the Board's review is a fully informed one, the examination reports are adequate to decide the claims. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). As there is no indication of the existence of additional evidence to substantiate the claims, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Evidentiary Standards VA must give due consideration to all pertinent lay and medical evidence in a case where a veteran is seeking service connection. 38 U.S.C.A. § 1154(a). As the Veteran had peacetime service, the combat provisions of 38 U.S.C.A. § 1154(b) do not apply. Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and from the weight of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competency is a question of fact, which is to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the weight or probative value of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. 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 Veteran. 38 U.S.C.A. § 5107(b). Service Connection for a Left Foot Disability Principles of Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active military service or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active military service. 38 U.S.C.A. § 1110 (peacetime service). Generally, to establish entitlement to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. All three elements must be proved. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). In this case, several legal theories operate in conjunction with 38 U.S.C.A. § 1131 as implemented in 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be warranted for disability proximately due to or the result of a service-connected disorder and where aggravation of a nonservice-connected disorder is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Facts The service treatment records show that on entrance examination the Veteran gave history of foot trouble. The examiner described the foot trouble as corns, but the evaluation of the feet was normal. In August 1980, early plantar fasciitis was noted, and the Veteran was apparently provided a heel insert, but it is unclear and it is also unclear whether the left or right foot or both were involved. In October 1981, the Veteran complained of a painful left foot. The pertinent finding was calluses on the plantar aspect of the feet. In March 1984 and in February 1986, the Veteran suffered left ankle sprains. In February 1986 X-rays were negative for a fracture. On a periodic examination in June 1986, the feet were evaluated as normal. On examination in April 1987 prior to separation from service, the Veteran denied having foot trouble. On examination, the feet were evaluated as normal. And no foot abnormality was listed in the summary of defects or diagnoses. After service, in a rating decision in April 1997 the RO granted service connection for residuals of a left sprain. VA records show that in May 1999 the assessment was pes planus in each foot. X-rays showed a valgus angulation of the left great toe at the upper limits of normal. In January 2002, the Veteran complained of a painful bunion on her left foot that she had two years. In June 2002, the Veteran was evaluated for a bunion on her left foot. There were keratotic lesions on each foot on the lateral aspect of the great toe and the fifth toe and plantar keratoses on the metatarsophalangeal joints of the other toes. X-rays showed hallux valgus of each foot. In December 2002, the Veteran was evaluated for painful corns and calluses on each foot. The findings were hyperkeratoses on the plantar aspect of the left, great toe, the 3rd metatarsal head and on the lateral aspect of the 5th toe. X-rays should a bunion. The assessments was intractable plantar keratosis, hyperkeratosis, and bunions. VA records show that in August 2003 the Veteran complained of pain around the left great toe. The impression was foot pain with bunion. In April 2004, the Veteran was seen in a pre-surgical consultation for painful calluses under the 3rd and 5th toes, a hammer toe and corn on the 5th toe, and a bunion on the left foot. In July 2004, the Veteran had left foot surgery to correct the plantar calluses and corn, the hammertoe deformity of the 5th toe, and a great toe bunion. In a statement in July 2005, a VA podiatrist, who performed the left foot surgery, stated that he first saw the Veteran in April 2004. The VA podiatrist stated that the Veteran had a history of a left ankle fracture in service in 1986 and after the fracture healed, multiple ankle sprains resulting from the position of the fracture. The VA podiatrist stated that based on the history of a fracture on the left ankle and the angle and position of the ankle joint it was more likely than not that the Veteran's left foot problems were related directly to the ankle fracture and the final position of the ankle bone in relation to the foot and the hypermobility which remained. The VA podiatrist also stated that it was more likely than not that the left foot problems were also the result of surgery on the right foot. On VA examination in September 2006, the Veteran stated that she developed pain in her left foot in 2003, resulting in foot surgery. The Vetern also stated that she was diagnosed with plantar fasciitis. The pertinent findings were scars over the left great toe, the 3rd toe, and the 5th toe. There was a callus under the left great toe and a callus under the 4th toe. The Achilles tendon was aligned and there was no pes planus. X-rays showed no fracture or dislocation of the ankle and the joint spaces appeared stable since January 2003. In July 2007 after a review of the Veteran's file, the VA exminer expressed the opinion that the Veteran's left foot problem was not related to the service-connected left ankle strain. In a rating decision in April 2007, the RO granted service connection for a left knee disability as secondary to the service-connected left ankle disability. In October 2007, the Veteran testified that when she had left foot surgery she was told by a VA doctor the pes palnus and the calluses resulted from running in military boots. On VA examination in June 2009, after a review of the Veteran's file, the VA examiner described the Veteran's current left foot problems as corrected hallux valgus and plantar calluses over the 2nd and 4th metarsals heads. The VA examiner expressed the opinion that the current left foot problems were not due to the service-connected left knee and left ankle disabilities, because there was nothing in the orthopedic literature to suggest that a knee or an ankle problem results in a hallux valgus deformity or plantar calluses. The VA examiner found no current evidence of plantar fasciitis and that the in-service plantar fasciitis and calluses were unrelated to the current left foot problems. On VA examination in March 2011, after a review of the Veteran's file, the VA examiner described the Veteran's current left foot problems as a left great toe bunion with bunionectomy, hammertoes with hammertoeplasty pes planus, and plantar calluses over the 2nd and 4th metarsals heads and great toe. The VA examiner expressed the opinion that the current left foot problems involving a bunion, hammertoes, pes planus, and calluses on the great toe and 4th toe are unrelated to service. As for plantar fasciitis in service, the VA examiner found no evidence of the condition. As for plantar calluses in service, the VA examiner stated that the location of the calluses was not recorded and calluses were not shown on separation examination and the left foot surgery changed the dynamics of the foot so that the available evidence of record was insufficient to render an opinion without a resort to speculation. On VA examination in November 2012, after a review of the Veteran's file, the VA examiner cincluded that the Veteran's current left foot problems as a left great toe bunion with bunionectomy, hammertoes with hammertoeplasty, pes planus, and plantar calluses were unrelated to service. As basis for these opinions the examiner noted that the clinical records in 1984 and 1986 for left ankle sprains showed no fracture and no mention of any foot symptoms or disorders; and periodic examinations in 1986 and the separation examination in 1987 showed that she denied any foot problems and the examiner assessed her feet as normal. Also, though an enlisted medic made mention in October 1981 of something on the bottom of the foot (plantar aspect), there was no specific mention of location or nature of calluses; and no subsequent referable service treatment record of calluses. After service she had surgery to the bilateral feet, for the right foot in 1997 and for the left foot in 2004. 38 C.F.R. § 3.303(a) (Affirmatively Showing Inception in Service) There is no service treatment record evidence showing a left foot disability in service. There is no such evidence affirmatively showing inception or aggravation of a left foot disability during service or through the application of statutory presumptions. The solitary note apparently of a callus of the bottom of the foot was not shown to be a chronic condition in service. The currently diagnosed left foot symptomatologies were not affirmatively shown to have been present during service, and service connection under 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303(a) (affirmatively showing inception in service) is not established. 38 C.F.R. § 3.303(b) (Chronicity) Although service treatment records show once instance of complaint regarding the bottom of the left foot, there was no finding of any left foot condition, and no evidence of any combination of manifestations sufficient to identify any disability and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b); see Savage v. Gober, 10 Vet. App. 488, 497 (1997) (chronicity requires evidence that the disability was present in service and the same condition currently exists, such evidence must be medical, unless the disability is one under case law that is capable of lay observation.). Although chronicity in service is not adequately supported, service connection may still be established by continuity of symptomatology after service under 38 C.F.R. § 3.303(b) or by initial diagnosis after service under 38 C.F.R. § 3.303(d). 38 C.F.R. § 3.303(b) (Continuity of Symptomatology) Establishing service connection based on continuity of symptoms requires (1) that a condition was 'noted' during service; (2) evidence of postservice continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. See Savage, 10 Vet. App. at 494-97 (continuity of symptomatology requires that the evidence either contemporaneous with service or otherwise show only that a condition was observed, that is, noted, during service); see Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (continuity of symptoms requires evidence of a nexus between the current disability and the postservice symptoms, which are identical to the symptoms that began in service). The Veteran is competent to describe left foot symptoms she has perceived since service. See 38 C.F.R. § 3.159 (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.); see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (Lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses). To this extent, the Veteran's lay statements of any foot symptoms since service is competent evidence of postservice continuity of symptomatology. However, the first documentation of the Veteran's complaints of a left foot problem is not shown until January 2002. At that time the Veteran reported complaints of left foot painful bunion for only the previous two years. Notably, the Veteran's primary claim is that her current left foot disability is caused by her service-connected left ankle disability or left knee disability. On the basis of the foregoing evidence, there were no documented complaints, clinical finding, or diagnosis of a left foot disability until January 2002, many years after the Veteran's discharge from active service in May 1987. Therefore, the medical evidence does not show that there is continuity of symptomatology after service to support the claim. 38 C.F.R. § 3.303(b). 38 C.F.R. § 3.303(d) (Disability First Diagnosed after Service) and 38 C.F.R. § 3.310 (Disability Proximately Due to Service-Connected Disability) The Veteran's essential claim is that her current left foot disability is secondary to service-connected left ankle disability or left knee disability. However, as shown in the November 2012 VA examination report, that examiner opined that the diagnosed left foot conditions including bunions status post bunionectomies, hammertoes status post hammertoeplasty, pes planus, and calluses, were not related to service or to the service-connected left ankle or left knee disabilities. The basis for that cogent opinion is entirely consistent with the remainder of the record, except for a July 2005 statement by a VA podiatrist. The etiological nexus opinion in the July 2005 statement, however, is shown to have been entirely based on a totally erroneous premise-the Veteran's report that she had a left ankle fracture in service resulting in multiple ankle sprains from the healed fracture position. The service treatment records show no evidence of a left ankle fracture in service. Because of that fact, the July 2005 statement is totally without probative value. In light of the foregoing uncontroverted opinion of the examiner at the November 2012 VA examination, service connection may not be established on either a direct basis under 38 C.F.R. § 3.303(d) or on a secondary basis under 38 C.F.R. § 3.310. To the extent the Veteran attributes her current left foot disability to service or to service-connected disability, although she is competent to describe symptoms, the diagnosed left foot conditions are not a conditions under case law for which lay observation has been found to be competent. Therefore, the determination as to whether any current left foot condition was present during active service or is related to an injury or disease of service origin is medical in nature, and not capable of lay observation, and competent medical evidence is needed to substantiate the claim. See Savage v. Gober, 10 Vet. App. 488, 498 (1997) (on the question of whether the veteran has a chronic condition since service, the evidence must be medical unless it relates to a condition as to which, under case law, lay observation is competent); Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). And it is not argued or shown that the Veteran is otherwise qualified through specialized education, training, or experience to offer an opinion on the relationship between the current left foot disability-first shown years after service-and either an injury, disease, or event in service, or a service-connected disability. Therefore the Veteran's lay statements are not competent evidence and the statements are not to be consider as favorable evidence on the question of a possible association of the current left foot disability and service, or service-connected disability. And although the Veteran is competent to relate a contemporaneous medical diagnosis and symptoms that later support a diagnosis by a medical professional, the Veteran has not submitted any such evidence that establishes a diagnosis of a left foot disability before June 2002 or probative evidence that a medical professional related her left foot disability to an injury, disease, or event in service. The preponderance of the evidence is against the claim for service connection; there is no doubt to be resolved; and service connection for a left foot disability is not warranted. II. Disability Rating for Residuals of Repair of the Rectus Abdominal Muscle General Rating Policy Disability evaluations are determined by the application of VA's Rating Schedule, 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). If 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). Rating Factors for Residuals of Repair of the Rectus Abdominal Muscle Rating factors for a disability of the musculoskeletal system include functional loss. 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. The functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Functional loss may also be due to weakness or atrophy. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). As for joints, the factors of disability reside in reductions of the joints normal excursion of movements in different planes. Factors for considerations include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, atrophy of disuse, instability of station, disturbance of locomotion, interference with sitting and standing, and weight-bearing. 38 C.F.R. § 4.45; DeLuca, 8 Vet. App. at 206-07. Also with periarticular pathology, painful motion is factor to be considered. The intent of the Rating Schedule is 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. The RO has evaluated the Veteran's service-connected residuals of repair of the rectus abdominal muscle are currently evaluated as noncompensably (zero percent rating) disabling under 38 C.F.R. § 4.73, Diagnostic Code 5319, based on involvement of Muscle Group (MG) XIX, which includes the muscles of the abdominal wall. Specifically, MG XIX supports and compresses the abdominal wall and thorax, controls flexion and lateral motions of the spine, and synergists in strong downward movements of the arm. Under Diagnostic Code 5319, a non-compensable rating is assigned for slight disability; a 10 percent rating is assigned for moderate disability; a 30 percent rating is assigned for moderately severe disability; and, a 50 percent rating is assigned for severe disability. 38 C.F.R. § 4.124a, Diagnostic Code 5319 (2012). 38 C.F.R. § 4.56 provides direction for classification of disabilities resulting from muscle injuries as to severity, including descriptions of slight, moderate, moderately severe, and severe disability of muscles. Under 38 C.F.R. § 4.56, a slight disability of muscles may result from a simple wound of muscle without debridement or infection. 38 C.F.R. § 4.56(d)(1)(i). The history of the disability should be considered including service department records of a superficial wound with brief treatment and return to duty and evidence of a wound which was healing with good functional results and no cardinal signs or symptoms of muscle injury or painful residuals. 38 C.F.R. § 4.56(d)(1)(ii). Objective findings include minimal scar, no evidence of fasciale defect, atrophy, or impaired tonus, and no impairment of function or metallic fragments retained in muscle tissue. 38 C.F.R. § 4.56(d)(1)(iii). A moderate disability of the muscles is defined as a through and through or deep penetrating wound of short track by single bullet or small shell, or shrapnel fragment, without explosive effects of high velocity missile, residuals of debridement, or prolonged infection. 38 C.F.R. § 4.56(d)(2)(i). Records in the file of consistent complaints on record from the first examination forward of one or more of the cardinal symptoms of muscle wounds, particularly fatigue and fatigue-pain after moderate use, and an effect on the particular functions controlled by the injured muscles should be noted. 38 C.F.R. § 4.56(d)(2)(ii). Objective evidence of a moderate disability includes entrance and (if present) exit scars which are linear or relatively small and so situated as to indicate relatively short track of missile through muscle tissue, signs of moderate loss of deep fascia or muscle substance or impairment of muscle tonus, and of definite weakness or fatigue in comparative tests. 38 C.F.R. § 4.56 (d)(2)(iii). A moderately severe disability of the muscles may result from through and through or deep penetrating wound by high velocity missile of small size or large missile of low velocity, with debridement or with prolonged infection or with sloughing of soft parts, intermuscular cicatrization. 38 C.F.R. § 4.56(d)(3)(i). Lastly, a severe muscle disability usually results from through-and- through or deep penetrating wounds as a result of high velocity missiles, or large or multiple low velocity missiles, or shattering bone fracture with extensive debridement, or sloughing of soft parts, or intermuscular binding and cicatrization. 38 C.F.R. § 4.56(d)(4)(i). For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. 38 C.F.R. § 4.56(c). Diagnostic Code 5319 defines the function of Muscle Group XIX to include flexion and lateral motions of the spine. Therefore, the service-connected residuals of repair of the rectus abdominal muscle can be evaluated by analogy to disability of the spine on the basis of limitation of motion, under the relevant section of VA's Schedule for Rating Disabilities (Rating Schedule): 38 C.F.R. § 4.71a, The Spine, General Rating Formula for Diseases and Injuries of the Spine, (General Rating Formula). By analogy to diseases and injuries of the spine, the General Rating Formula provides for evaluation of limitation of motion of the relevant part of the spine affected by MG XIX function of flexion and lateral motions of at part, the thoracolumbar spine. However, other parts of the General Rating Formula are not applicable to evaluation of the disability by analogy. Veteran's service-connected residuals of repair of the rectus abdominal muscle involve MG XIX, muscles of the abdominal wall. The service-connected disability does not include any orthopedic pathology associated with the spine such as vertebral body fracture, abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, or actual ankylosed vertebrae. The disability does not include intervertebral disc syndrome and associated incapacitating episodes, or other neurologic abnormalities associated with the thoracolumbar spine such as radiculopathy into extremities, or bowel or bladder abnormalities. So an evaluation on those bases is not applicable. See 38 C.F.R. § 4.71a, The General Rating Formula for Diseases and Injuries of the Spine, Notes (1), (6). As applicable to the service-connected stomach muscle disability, under the General Rating Formula, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait. 38 C.F.R. § 4.71a, The General Rating Formula for Diseases and Injuries of the Spine. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait. Id. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Id. Higher ratings are available for more severe symptoms involving ankylosis of the thoracolumbar spine and entire spine. Id. Facts and Analysis The residuals of repair of the rectus abdominal muscle resulted from surgical treatment in February 1998 for service connected endometriosis. The Veteran underwent total abdominal hysterectomy, bilateral salpingo-oophorectomy. With respect to the service-connected disability, surgery included a low transverse incision made through the skin, subcutaneous tissue and fascia; and the rectus muscles were spread laterally and the peritoneum was opened in the midline. On conclusion of surgery, the abdomen was closed in layers, the peritoneum with continuous suture of tissue was closed and the skin closed with staples. The Veteran tolerated the procedure well. A January 2001 VA treatment record shows complaints of abdomen wall weakness; and objective findings of separation of rectus abdomen muscles. The diagnosis was diastasis recti, and surgery was planned to repair this. A VA operative report later in January 2001 shows the Veteran underwent procedures of (1) repair of diastasis recti, and (2) excision of excess abdominal skin. At the conclusion of the procedure, the umbilicus and abdominal flap were healthy; the lower abdominal wound was dressed. A February 2001 VA treatment report shows that the Veteran continued to do well and was there for removal of her umbilical sutures. She was very happy with her umbilicus. Examination showed an excellent result; the anterior abdominal wall musculature was solid, the abdominal flap was healthy, and the umbilicus looked good. The umbilical sutures were removed. She was seen three weeks later in February 2001 for follow-up examination, when the Veteran continued to do well and was happy with the results. Examination showed the Veteran had an excellent results. The anterior abdominal wall musculature was solid, and the abdominal flap was healthy. The umbilicus looked good. VA treatment records show that the Veteran was hospitalized in June 2001 with stomach complaints. The admission diagnosis was acute appendicitis. She underwent an appendectomy. During surgery the appendix was found to be gangrenous and had ruptured. A few days later that month she was seen for stomach complaints and diagnosed with infectious colitis. During VA examination in January 2003, the Veteran reported complaints of tightness and pressure in the lower abdominal region and urinary urgency, with some burning and stinging when she urinated. She had minimal bowel complaints. On examination, there were multiple abdominal stria; and two scars in the lower abdomen. Examination of the abdomen revealed some tenderness in the mid upper quadrant and right upper quadrant. There were no palpable masses or organomegaly. The report contains an impression of status post total abdominal hysterectomy and status post repair of diastasis recti; the Veteran did well following the recti abdominus muscle repair. The examiner opined essentially that the acute appendicitis and colitis suffered later were not related to the previous surgery. During an August 2005 VA examination the Veteran reported complaints of right lower quadrant and lower abdominal pains several times per day but not every day. She reported complaints and the examiner reported findings as to two scars unrelated to muscle injury. The two scars manifested no limitation of function. The diagnosis included repair of diastasis recti in January 2001 without complications. During a June 2009 VA examination, the Veteran reported complaints of pain with a surgical scar of the abdomen once or twice a week. On examination the report contains findings of two surgical scars, including that there was no limitation of motion of either scar. The examiner concluded with comment that the Veteran had no aggravation brought about from the repair of the rectus abdominal muscle from the two scars that were incurred. The range of motion of the lumbar spine showed only minimal discomfort with right lateral rotation but examination otherwise was essentially normal. The examiner further commented that the problem with the scars was not associated with increased disability and were not aggravated by her work activity. The examiner further commented that the range of motion of the lumbar spine is not additionally decreased by repetitive motion times three, or by flare-up of the condition. The examiner concluded that the Veteran just has a minimal recurrent abdominal discomfort once or twice a week and no actual flare-up is described. During a March 2011 VA examination of the rectus abdominal muscle, the Veteran reported she took medication for abdominal pain she had since her surgeries. She reported pain in the lower abdomen that were sharp and averaged about 8/10. She reported her scars were also tender, frequently itched, and occasionally burned. There were no hernias and her scars were well healed. Examination revealed no hernias, redness, inflammation, edema, atrophic changes, soft tissue involvement, or limitations. There was no muscle atrophy or spasms. The report contains diagnosis of (1) abdominal muscle repair/rectus muscle repair in 2001; and (2) total hysterectomy in 1998; no residuals from the scar except for chronic pains over the scars and abdominal pains. The report of ultrasound examination noted no muscle abnormality. The report of a November 2012 VA examination of the thoracolumbar spine notably includes a diagnosis of degenerative disc disease. The examiner opined that the Veteran had no flare-ups impacting the function of the spine. On examination, the range of motion of the thoracolumbar spine included flexion from zero to 75 degrees; extension from zero to 15 degrees; left and right lateral flexion from zero to 20 degrees bilaterally; and left and right lateral rotation from zero to 30 degrees bilaterally. The report indicated that objective evidence of painful motion began at the endpoints for each. On repetitive range of motion testing, the Veteran had forward flexion to 45 degrees; extension to 15 degrees; right and left lateral flexion to 20 degrees, bilaterally; and right and left lateral rotation to 30 degrees, bilaterally. Repetitive range of motion testing was performed, showing the Veteran had pain, which caused the range of motion to decrease by 5 to 10 degrees during right lateral flexion. The report noted that following repetitive use testing, the Veteran had additional limitation in range of motion; and functional loss or impairment associated with less movement than normal and pain on movement. The report noted that the Veteran had localized tenderness or pain to palpation for joints or soft tissue of the thoracolumbar spine. Notably, the examiner found that the Veteran had radiculopathy involving nerve roots of the lumbosacral spine, mildly on the left, and no other associated (with the lumbosacral spine) neurologic abnormalities or intervertebral disc syndrome. The examiner opined that the Veteran's condition did not impact on her ability to work. The examiner commented that during the examination, the Veteran was asked about having any discomfort, pain, tightness or other abnormal sensation. She reported complaints of pain and tightness in her back. She never reported any complaint of pain, stiffness or other abnormal sensation in the abdominal area, and specifically none in the area of the rectus abdominus repair. The examiner opined that other than the mild transient discomfort described under the muscle DBQ (Disability Benefits Questionnaire), the Veteran is not suffering any range of motion limitation or other disability secondary to the rectus abdominus repair and residuals. The report of the November 2012 VA examination for muscle injuries (DBQ), the examiner noted there was a diagnosis of a muscle injury of rectus abdominus repair associated with both sides. The examiner noted a history that the Veteran had not had a penetrating muscle injury, and did have a non-penetrating muscle injury, which was described as the repair of the diastasis recti muscle in January 2001. The Veteran reported complaints of occasional tightness and discomfort at the incision sight that was brief and did not cause occupational or daily activity limitations. The examiner recorded the following findings. The muscle disability involved a muscle group of the torso, Muscle Group XIX, including muscles of the abdominal wall: rectus abdominus, external oblique, internal oblique, transversals, quadratus lumborum, which function to support the abdominal wall and lower thorax, flexion and lateral movement of the spine, on both sides. The Veteran did not have a history of rupture of the diaphragm with herniation, or extensive muscle hernia of any muscle. There were minimal scars, and no fascial defects associated with any muscle injuries. The Veteran's muscle disability did not affect muscle substance or function. The Veteran did not have any of the following signs or symptoms attributable to muscle injuries: loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, or uncertainty of movement. Muscle strength was 5/5 in all muscle groups tested, and there was no atrophy. The Veteran used a cane for an assistive device for her knee, foot pain, but not for abdominal muscle repair. The examiner opined that the Veteran had no other pertinent physical findings, complications, conditions, signs or symptoms; and the muscle disability did not impact her ability to work. It should be noted at the outset that a separate rating of 10 percent is in effect for scars, residual of repair of diastasis recti. That rating is not on appeal or otherwise part of the present appeal. The evidence overall does not show that the symptomatology of the residuals of repair of the rectus abdominal muscle is productive of criteria warranting a higher disability rating based on muscle injury under 38 C.F.R. § 4.73, Diagnostic Code 5319. As noted in the most recent VA examination findings, the muscle disability does not manifest any of the cardinal signs or symptoms of muscle disability, particularly fatigue or fatigue-pain after moderate use. 38 C.F.R. § 4.56(c). The disability does not affect muscle substance or function, and there is no atrophy. There is no evidence productive of moderate loss of deep fascia or muscle substance or impairment of muscle tonus or any weakness. The examiner further found that the Veteran had not had a penetrating muscle injury, and the disability did not impact the Veteran's ability to work. The remainder of the clinical record is fairly consistent with the foregoing. Notably after the 2001 surgery the Veteran had some lower abdominal symptoms, however, these were shown to be associated with non-service-connected conditions at the time. Based on the foregoing, a compensable disability rating under relevant muscle injury rating criteria is not warranted, even with consideration of Deluca. 38 C.F.R. § 4.73, Diagnostic Code 5319. Further, the evidence overall does not show that the symptomatology of the residuals of repair of the rectus abdominal muscle is productive of range of motion criteria warranting a higher disability rating under the General Rating Formula, as analogous to limitation of motion of the thoracolumbar spine. As reflected in the November 2012 VA thoracolumbar spine examination report, the range of motion studies for the thoracolumbar spine showed that that forward flexion was limited to 75 degrees, and that the combined range of motion of the thoracolumbar spine was 190 degrees. If attributable to the service-connected residuals of repair of the rectus abdominal muscle, this set of range of motion findings would meet the criteria for a 10 percent rating for associated service-connected disability under 38 C.F.R. § 4.71a, The General Rating Formula for Diseases and Injuries of the Spine. However, as reflected by the findings and opinion of the November 2012 VA examination, the Veteran is not shown to be suffering any range of motion limitation secondary to the rectus abdominus repair and residuals. It should be noted that there is clinical evidence of arthritis of the thoracolumbar spine and that at the most recent VA examination the Veteran complained only of back pain, not stomach pain or other symptoms, during the range of motion study. Thus the evidence does not show that the symptoms of the residuals of repair of the rectus abdominal muscle are productive of either forward flexion of the thoracolumbar spine limited to 85 degrees or less; or, combined range of motion of the thoracolumbar spine limited to 235 degrees or less; or, muscle spasm, guarding, or localized tenderness so as to warrant assigning the disability a 10 percent disability rating. As reflected in recent VA examination reports, the evidence shows that the Veteran has only has mild transient discomfort; a minimal recurrent abdominal discomfort once or twice a week and no actual flare-up. Based on the foregoing, a compensable disability rating under relevant limitation of motion criteria is not warranted, even after consideration of pain, weakness and other symptoms described in DeLuca. See 38 C.F.R. §§ 4.31, 4.71a, General Rating Formula for Diseases and Injuries of the Spine; Hart v. Mansfield, 21 Vet. App. 505 (2007). If the criteria for a compensable rating under a diagnostic code are not met, as here, then a noncompensable rating is awarded. See 38 C.F.R. § 4.31 (2012). The preponderance of the evidence is against the grant of a compensable initial schedular disability rating for residuals of repair of the rectus abdominal muscle; there is no doubt to be resolved. 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 the 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 levels and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned ratings are 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 current disability levels and symptomatology to the Rating Schedule, the degree of disability is encompassed by the Rating Schedule and the assigned schedule rating is adequate. In other words, the Board finds that the rating criteria reasonably describe the Veteran's disability and symptomatology, and the Veteran does not have any symptomatology not already encompassed by the Rating Schedule. For this reason, referral for an extraschedular rating is not warranted under 38 C.F.R. § 3.321(b)(1). ORDER Service connection for a left foot disability is denied. A compensable initial disability rating for residuals of repair of the rectus abdominal muscle is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs