Citation Nr: 1313722 Decision Date: 04/24/13 Archive Date: 05/03/13 DOCKET NO. 10-12 307 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a back disability to include as secondary to the service-connected left ankle disability. 2. Entitlement to a higher rating than 10 percent for left ankle injury residuals. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Andrew Mack, Counsel INTRODUCTION The Veteran had active service from October 1976 to October 1982. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran requested a hearing before the Board in his substantive appeal. A hearing was scheduled for March 2012. However, the Veteran did not appear for the hearing or show good cause for not doing so. Thus, his request is considered withdrawn. 38 C.F.R. § 20.704(d) (2012). In June 2012, these matters were remanded by the Board. They have been returned for further appellate action. During the appeal period, the Veteran raised the issue of entitlement to a total disability rating for individual unemployablity due to service-connected disabilities (TDIU). See Rice v. Shinseki, 22 Vet. App. 447, 453-454 (2009). However, in the July 2011 rating decision, the RO denied the TDIU claim, and the matter was not appealed by the Veteran. Therefore, the issue of entitlement to a TDIU is not currently on appeal and will not be further addressed in this decision. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. FINDINGS OF FACT 1. Lumbar spine degenerative joint disease existed in service and continued until the present, and there is no clear and unmistakable evidence demonstrating that such disability both existed before acceptance and enrollment and was not aggravated by such service. 2. During the period pertinent to his March 16, 2009, claim for an increased rating, the Veteran's left ankle disability has been primarily manifested by pain with occasional swelling and some functional impairment with walking and other normal use of the ankle, and has more closely approximated moderate limitation of motion of the ankle than marked limitation of motion. CONCLUSIONS OF LAW 1. The criteria for service connection for lumbar spine degenerative joint disease have been met. 38 U.S.C.A. §§ 1111, 1131, 1132, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309(a) (2012). 2. The criteria for a higher rating than 10 percent for left ankle injury residuals have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5270-5274, 5284 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist In this decision, the Board grants entitlement to service connection for lumbar spine degenerative joint disease, which constitutes a complete grant of the Veteran's claim for a back disability. Therefore, no discussion of VA's duty to notify or assist is necessary with respect to that issue. After review of the claims file, the Board finds that VA has met all statutory and regulatory notice and duty to assist provisions in this case with respect to the other issue on appeal. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). The information contained in a May 2009 letter satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Moreover, the Veteran was notified of regulations pertinent to the establishment of an effective date and disability rating in the May 2009 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records, VA medical treatment records, and identified private medical records have been obtained. Also, the Veteran was provided VA examinations in August 2009 and September 2012. These examinations and associated reports were adequate because, along with the other evidence of record, they provided sufficient information to decide the appeal and a sound basis for a decision on the Veteran's claim. The examination reports were based on examination of the Veteran by examiners with appropriate expertise who reviewed relevant medical records and provided findings pertinent to the applicable rating criteria. 38 C.F.R. § 3.159(c)(4) (2012); Barr v Nicholson, 21 Vet. App. 303 (2007). Moreover, the RO has substantially complied with the Board's June 2012 remand instructions. As noted above, the Veteran was provided a VA examination in September 2012 that adequately addressed the Board's questions and that, along with the other evidence of record, provided sufficient information to decide the appeal. Under these circumstances, the Board finds that there has been substantial compliance with its remand instructions, and an additional remand to comply with the Board's directives is not required. See D'Aries v. Peake, 22 Vet. App. 97, 104-106 (2008); Stegall v. West, 11 Vet. App. 268 (1998). There is no indication in the record that any additional evidence relevant to the issue on appeal is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. All of the evidence in the Veteran's claims file has been thoroughly reviewed. Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence, and on what the evidence shows or fails to show with respect to the matter on appeal. The Veteran should not assume that pieces of evidence, not explicitly discussed herein, have been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). II. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). 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. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within a prescribed period following discharge from service; the presumptive period for arthritis is one year. 38 C.F.R. §§ 3.307, 3.309(a). When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. §§ 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A veteran who served after December 31, 1946, is presumed to be in sound condition when he or she entered into military service, except for conditions noted on the entrance examination, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. §§ 1111, 1132. With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen, 10 Vet. App. 183. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. In this case, service treatment records do not contain a report of examination for the Veteran's entry into service, and there is no indication that any lumbar spine disability was noted at the Veteran's entry into service in October 1976. In December 1979, the Veteran reported back pain and increased stiffness in the morning, and stated that he had injured his back in two separate accidents. He stated that he had jumped off a truck one week prior and had had increased low back pain, that it hurt to tie his shoe, and that he had occasional radiation of pain to the left thigh. The initial assessment was low back pain. A December 1979 follow up note reflects that the Veteran reported back pain, and that he had incurred an L4 compression fracture 10 years prior; the assessment was early osteoarthritic changes between L4-L5, and L4 compression fracture. December 1979 lumbosacral spine X-rays revealed normal vertebral body heights, and the anteroposterior diameter of L5 vertebral body appeared disproportionately wider than the other lumbar bodies, and intervertebral disc spaces were well-maintained. Another December 1979 note reflects that X-rays showed mild degenerative joint disease changes, and the assessment was chronic lumbosacral strain. Service treatment records further reflect that, in August 1979, the Veteran was treated for complaints of back pain for four weeks. It was noted that he had had a broken back 10 years prior, and had chronic arthritic changes in the back. An October 1982 periodic service examination report indicates a diagnosis of spinal arthritis. At the time of his examination for separation from service, the Veteran was noted to have had no weakness, deformity, or loss of motion of the lumbar spine, but it was noted that he had had a compression fracture of the spine in childhood, spinal arthritis L4-L5, diagnosed in 1979, and recurrent moderate non-incapacitating low back pain since 1977 treated with good results. Private medical records reflect treatment of low back pain in November 1986, and August 1989 VA X-rays reflect mild disc space narrowing at L4-5. The report of a an August 1989 VA examination reflects a diagnosis of chronic low back syndrome secondary to old compression fracture as a child reactivated by fall in military service. A February 2006 VA physical rehabilitation note reflects that the Veteran's recent magnetic resonance imaging (MRI) had shown facet joint degenerative joint disease. The report of an August 2009 VA examination reflects a diagnosis of lumbosacral strain. In an August 2009 addendum, the VA examiner stated that the Veteran had had multiple injuries to his back in May 2008 and July 2009 following military service, which ended in 1984, and that he had no complaints of back pain until 2003, when his X-rays showed old traumatic facture of L5 with degenerative changes of the lumbar spine. The examiner stated that the baseline manifestation of his back pain when he first injured his back was acute lumbosacral pain, which resolved by the time he entered military service, and that he had had several injuries during military service, though they were not incapacitating nor aggravating his previous condition. The report of a September 2012 VA examination noted previous diagnoses of lumbosacral spine degenerative disc disease, lumbosacral spine degenerative joint disease, and lumbosacral spinal stenosis. It was noted that a July 2012 lumbosacral spine MRI revealed degenerative disc disease and moderate acquired spinal stenosis. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the Veteran's service connection claim must be granted. The record reflects degenerative changes of the spine that were initially noted in service, diagnosed as early osteoarthritic changes, arthritis, and degenerative joint disease, and manifested by recurrent back pain during service. Such degenerative changes of the spine were continuously documented in service and have been continuously documented in post-service medical records from the time of the Veteran's service until the present. The record also reflects that the Veteran incurred a compression fracture of the spine at the L4 vertebra approximately 10 years prior to his service. However, considering the evidence in its entirety, and resolving reasonable doubt in the Veteran's favor, the Board finds that there is not clear and unmistakable evidence demonstrating that the Veteran's in-service degenerative joint disease of the lumbar spine both existed before acceptance and enrollment into service, and was not aggravated by such service. Initially, service treatment records do not contain any report of examination for entry into service, and do not contain any other record indicating that a preexisting lumbar spine condition had been noted at the time of the Veteran's entry into service; rather, the initial notation of any lumbar spine problems is dated in December 1979, more than three years after the Veteran's entry into service. Thus, with respect to his lumbar spine, the Veteran is presumed to have been in sound condition when he entered into military service. Also, while the record has repeatedly reflected, and the Veteran has repeatedly reported, that he incurred a compression fracture of the spine at the L4 vertebra in the years prior to service, the initial diagnosis of any kind of degenerative problem or arthritis of the spine was in December 1979; there is no indication that any such chronic back disorder had been diagnosed prior to service. The only evidence suggesting the Veteran had a chronic back disorder is the statements from the Veteran. While he is competent to report observable symptoms, he is not competent to diagnose that he had arthritis of the spine before service. While such disorder may have been related to the Veteran's prior compression fracture, the evidence is unclear as to whether the disorder itself preceded service. The Board therefore finds that there is no clear and unmistakable evidence that the Veteran's degenerative joint disease noted in service actually existed before acceptance and enrollment into service. Furthermore, even if the Board were to accept that such a disorder had preexisted the Veteran's service, there is no clear and unmistakable evidence that any such disorder was not aggravated by such service. Rather, the evidence tends to show that it may very well have been aggravated. Again, no back problems were noted until December 1979, over three years into the Veteran's period of service, after he reported increased low back pain with occasional radiation of pain to the left thigh after jumping off a truck; thereafter, the Veteran was periodically treated for low back pain, and recurrent low back pain due to his lumbar spine disorder was noted during service examinations. Also, the August 1989 VA examination report reflects a diagnosis of chronic low back syndrome secondary to old compression fracture as a child, which was assessed by the examiner to have been reactivated by fall in military service. While the August 2009 VA examiner opined that the Veteran had had several injuries during military service, but that none had aggravated his previous back condition from his pre-service fracture, the examiner did not provide any rationale for this opinion. Also, the examiner did not provide any explanation as to whether the Veteran's degenerative joint disease, diagnosed in service, existed prior to service, or why the Veteran did not appear to begin experiencing recurrent back pain in service until his December 1979 injury. Thus, the Board finds the opinion to be of diminished probative value, and not to constitute clear and unmistakable evidence that lumbar spine degenerative joint disease existed before acceptance and enrollment and was not aggravated by such service. Therefore, resolving all reasonable doubt in favor of the Veteran, the Board finds that lumbar spine degenerative joint disease existed in service and continued until the present, and that there is no clear and unmistakable evidence demonstrating that such disability both existed before acceptance and enrollment and was not aggravated by such service. Accordingly, the claim for service connection for lumbar spine degenerative joint disease must be granted. III. Increased Rating Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where the veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's left ankle injury residuals are rated under DC 5271, which provides ratings based on limitation of motion of the ankle. Moderate limitation of motion of the ankle is rated as 10 percent disabling; and marked limitation of motion of the ankle is rated as 20 percent disabling. 38 C.F.R. § 4.71a, DC 5271. Higher ratings than 20 percent are available where there is ankylosis of the ankle. See 38 C.F.R. § 4.71a, DC 5270. Normal ranges of motion of the ankle are dorsiflexion from 0 degrees to 20 degrees, and plantar flexion from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. The words "slight," "moderate" and "severe," as used in the various diagnostic codes, are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to ensure that its decisions are "equitable and just." 38 C.F.R. § 4.6. The Board also notes that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of the Board's determination of an issue. The Board evaluates all evidence in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Disability of the musculoskeletal system is primarily the inability, due to damage or infection of parts of the musculoskeletal 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 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. See 38 C.F.R. §§ 4.40, 4.45, and 4.59 (2012). See also DeLuca v. Brown, 8 Vet. App. 202, 206 -07 (1995). As reflected in his March 16, 2009, claim for increase, the Veteran asserts that he has ankylosis of the left ankle as a residual of his foot injury, and has had continual problems with severe sprains and fractures of the ankle since service. In May 2008, the Veteran was treated for acute exacerbation of low back pain after tripping over a hole the week before that had been carpeted over in a hotel. On June 22, 2009, the Veteran was treated for a right ankle injury, and right ankle X-rays showed possible soft tissue swelling with slight joint effusion. On July 16, 2009, the Veteran reported falling two weeks before while descending some stairs, and when his left ankle gave way. The report of an August 2009 VA examination reflects that the examiner reviewed the claims file, and that the Veteran had history of multiple sprains during military service. The examiner noted that X-rays of the left ankle in September 1994 were within normal limits. The Veteran reported residual instability of the left ankle with pain and swelling. There were noted to be no signs of inflammation, including swelling, heat, redness, tenderness, or drainage. The Veteran stated that he usually took Tylenol for his ankle strain and that he had instability of the left ankle approximately two times per month with inversion of the ankle, with localized swelling and pain, usually lasting for several days. The Veteran further reported that he had had to quit his job selling prefabricated storage houses because they were located on a gravel lot and his ankle instability caused him to have multiple falls and time off from work, and he was fired for that. The Veteran described difficulty with walking on uneven ground such as gravel or pasture ground. On physical examination, range of motion of the left ankle showed dorsiflexion of 0 to 15 degrees out of 20 and plantar flexion of 40 degrees out of 45, with inversion of 0 to 30 degrees out of 30 and eversion of 0 to 20 degrees out of 20. The examiner stated that the Veteran had no acute discomfort at extremes of range of motion of the left ankle. It was noted that there was atrophy of the left calf, measured at 42 centimeters (cm) compared to the right calf at 44 cm. It was also noted that the Veteran walked with an antalgic gait, limping on the left leg. There was no ankylosis. There were no additional limitations noted with three repetitions of movement during the examination as related to pain, fatigue, incoordination, weakness, or lack of endurance. The diagnosis was left ankle sprain with history of multiple recurrent sprains. August 2009 VA X-rays of the left ankle revealed no acute fracture or dislocation, the ankle mortise was stable, and there was no sclerotic or lytic bony lesion and no radiopaque foreign body. The impression was no acute process was noted, and the Veteran had a normal examination. A September 2009 VA treatment record reflects that the Veteran reported that he had tripped and fell the week before because of his service-related left ankle injury, which left his ankle unstable while walking up inclines. He reported having a brace for this but not wearing it because it was bulky. He stated that when he fell, he injured his right forehead and showed the examiner a picture of the bruising and swelling over his right eye, which was then noted to have been almost completely resolved, and right wrist, and also hit his upper right teeth so that his top incisors were slightly loose. He also stated that he broke his glasses when he fell. On examination, the left ankle had full range of motion, pain with inversion of the foot/ankle, mild edema over the lateral malleolus, and no erythema or warmth, and the ligaments were stable. It was noted that the Veteran agreed to start wearing his brace. In his November 2009 notice of disagreement, the Veteran asserted that his service-connected left ankle was causing constant injuries due to falls several times a month. He asserted that because he could physically not walk around the gravel lot at his last job due to constant left ankle strains and falls they let him go, and that they had not been able to replace that job in a year. He asserted that since his VA examination, he had had multiple sprains and falls, and that in one of the more severe falls he sprained his left ankle again, and his left wrist. He further stated that due to the fall he broke a pair of eye glasses, got a black eye, and loosened two front teeth. He further asserted that he did not have as much pain during his VA examination because he had just taken 500 milligrams of hydrocodone to deal with the pain of driving up to the VA facility and walking across the parking lot and through the hospital. He stated that he had short periods between falls when things seemed to feel better and the pain was not that severe, but the falls and pain were affecting his life, welfare, happiness and finances. He further stated that he kept having falls due to weakness in the left ankle. He also attached a photograph of his face, which he asserted showed the damage caused by one of his recent falls when his left ankle buckled. The photograph shows a bruised, swollen right eye area, and scraped right cheek and head area above the right eye. In his March 2010 substantive appeal, the Veteran reiterated that his left ankle was weak and resulting in falls, that 90 percent of the time he was out of action with a strained ankle or other injury, and that he did not believe that VA was fully aware of the frequency of the falls and time off from work due to those falls. He stated that he very rarely sought treatment unless he heard a cracking sound. VA treatment records reflect that in August 2010, and again in September 2011, on fall screening, when the Veteran was asked whether he had fallen in the past 12 months he answered no. The report of a September 2012 VA examination reflects that the Veteran described a long history of left ankle sprains from the time in the military, with two subsequent left ankle fractures in 1989 and 2005. He reported that he continued to roll his ankle one to two times per week and fell due to rolling of his left ankle about once a month. He did not report that flare-ups impacted the function of the ankle. On range of motion testing, left ankle plantar flexion was to 25 degrees out of 45 with no objective evidence of painful motion, and plantar dorsiflexion was to 15 degrees with no objective evidence of painful motion. After repetitive testing, plantar flexion was to 25 degrees, and dorsiflexion was to 15 degrees. There was noted to have been no functional loss or functional impairment of the ankle and no additional limitation in range of motion following repetitive-use testing. Muscle strength testing was full in plantar flexion and dorsiflexion in both ankles. There was no laxity of the left ankle on either anterior drawer test or talar tilt test (inversion/eversion stress). There was no ankylosis of the ankle, subtalar and/or tarsal joint. There were no shin splints, stress fractures, achilles tendonitis, achilles tendon rupture, or malunion of the calcaneus or talus. There was noted to have been no functional loss of the ankle such as weakened movement, excess fatigability, incoordination, deformity, atrophy of disuse, or disturbance of locomotion. It was noted that the Veteran had never had arthroscopic or other ankle surgery. No other pertinent symptomatology was noted. It was noted that the Veteran did not use any assistive devices as a normal mode of locomotion, including any braces. Imaging studies of the ankle were performed, but there were no abnormal findings such as degenerative or traumatic arthritis, and no other diagnostic test findings. The examiner stated that the Veteran's ankle condition did not impact his ability to work. In addressing the question of whether the Veteran's ankle condition was causing him to fall, the examiner noted that the Veteran had a normal X-ray of the left ankle in August 2009, that this physical examination showed decrease in range of motion in dorsiflexion and plantar flexion, but that there was no increase in the ligamentous laxity to inversion and eversion stress on the left compared to the right, though it was noted that it was on inversion stress that the Veteran reported that he rolled his ankle. The examiner noted that the Veteran did not have an unstable ankle on examination. The examiner also stated that, therefore, on the basis of his physical examination and X-ray findings, in the examiner's opinion, the Veteran's left ankle sprain with recurrence was less likely than not the cause of repeated falls. However, the examiner stated that, nevertheless, the Veteran could fall when he reinjured his left ankle without the reinjury resulting in an unstable ankle. The examining physician further stated that, while there was a reference to the Veteran falling and hurting his back in June 2009 while climbing down stairs, he had been diagnosed with ankle sprain on the right side, with right ankle series performed in June 2009 showing soft tissue swelling, but that when he saw his primary care provider in July 2009 and stated that his back had been troublesome since descending some stairs, he reported giving way of the left ankle; therefore, it appeared that the Veteran's primary care provider had noted the wrong ankle. Considering the pertinent evidence in light of the governing legal authority, the Board finds that a higher rating for left ankle injury residuals must be denied. The record reflects that, during the period pertinent to his March 16, 2009, claim for an increased rating, the Veteran's left ankle disability has been primarily manifested by pain and moderate limitation of motion, with occasional swelling and some functional impairment with walking and other normal use of the ankle. The most to which the Veteran's right ankle motion has been noted to be limited was on September 2012 VA examination, at which time it was noted that there was no objective evidence of pain with active motion of the left ankle, and dorsiflexion was from 0 to 15 degrees and plantar flexion was from 0 to 25 degrees. There was no joint ankylosis or additional limitation of motion following repetitive motion, or additional limitations after three repetitions of range of motion. While the Veteran's plantar flexion at the time of this examination revealed less than half of the normal range, the Board nonetheless finds that the Veteran's left ankle disability has more closely approximated moderate limitation of ankle motion than marked limitation. Even during this examination, the Veteran's left dorsiflexion was noted to have been from 0 to 15 degrees, out of a full 20 degrees, and it was noted that there was no objective evidence of pain with active motion of the left ankle. The Board notes that on August 2009 VA examination it was noted that there was some atrophy of the left calf, measured at 42 cm compared to the right calf at 44 cm, and that the Veteran walked with an antalgic gait, limping on the left leg. However, at that time, range of motion of the left ankle showed dorsiflexion of 0 to 15 degrees out of 20 and plantar flexion of 40 degrees out of 45, with inversion of 0 to 30 degrees out of 30 and eversion of 0 to 20 degrees out of 20, with no acute discomfort at extremes of range of motion of the left ankle and no additional limitations noted with three repetitions of movement during the examination as related to pain, fatigue, incoordination, weakness, or lack of endurance. Also, in September 2009, following a reported injury to the left ankle the week before, full range of motion of the ankle was noted, with no instability. Furthermore, on September 2012 VA examination, there was noted to have been no functional loss of the left ankle such as weakened movement, excess fatigability, incoordination, deformity, atrophy of disuse, or disturbance of locomotion. Thus, even considering any additional functional loss due to pain, weakness, or other such factors, in light of the record as a whole, the Board finds that the Veteran's left ankle disability has more closely approximated moderate limitation of ankle motion than marked limitation. Thus, a rating higher than 10 percent under DC 5271 is not warranted. The Board notes the Veteran's assertion in November 2009 that he did not have as much pain during his August 2009 VA examination because he had just taken 500 milligrams of hydrocodone to deal with the pain of driving up to the VA facility and walking across the parking lot and through the hospital. However, during the August 2009 VA examination, the Veteran reported that he usually took Tylenol for his ankle strain, and, while VA treatment records have reflected use of hydrocodone, they reflect that such medication was used for the Veteran's back pain, rather than any ankle pain. The Veteran has also repeatedly asserted that he suffers constant injuries due to falls several times a month resulting from left ankle weakness, such that he was fired from a job because he was not physically able to walk around a gravel lot as his ankle instability caused him to have multiple falls and time off from work. In August 2009, he reported falling approximately two times per month due to his ankle, in November 2009 he asserted that he fell several times a month, in March 2010 he stated that he frequently fell and had to take time off from work due to those falls, and in September 2012 he asserted that he fell due to his ankle rolling about once per month. The Veteran is competent to report matters within his own personal knowledge. See Layno, 6 Vet. App. at 469. However, the evidence of record calls into question the credibility of the Veteran's assertions of suffering falls due to his left ankle disability, particularly with respect to the frequency, severity, and functional impact of such falls. In his March 2010 substantive appeal, the Veteran asserted that he very rarely sought treatment unless he heard a cracking sound when he fell. However, even considering this statement, given the asserted frequency, severity, and occupational impact of such falls, the lack of much documentation in the medical record regarding such falls during the multi-year period pertinent to the Veteran's March 16, 2009, claim for increase undermines the credibility of such assertions. Moreover, such reports are inconsistent with the Veteran's own statements in August 2010 and September 2011, when being screened for past falls, when the Veteran was asked whether he had fallen in the past 12 months and answered that he had not. Also, most of the treatment records that do actually document the Veteran's falls during the appeals period are not consistent with the Veteran's assertions that they have been due to his left ankle disability. In May 2008, the Veteran was treated for acute exacerbation of low back pain from a fall, but reported that such fall was due to tripping over a hole that had been carpeted over. Furthermore, while on July 16, 2009, the Veteran reported falling two weeks before while descending some stairs when his left ankle gave way, the record reflects that on June 22, 2009, the Veteran was treated for a right, not left, ankle injury, and right ankle X-rays showed possible soft tissue swelling with slight joint effusion. This fact was noted by the September 2012 VA examiner after reviewing the records and noting that the right ankle and not the left had been responsible for the Veteran's fall, although in July 2009 it had been incorrectly noted as the left ankle. The only fall for which the Veteran received treatment due to a reported left ankle problem was that documented in September 2009. Furthermore, the Veteran's reports of frequent and severe falls due to left ankle instability and weakness are inconsistent with the objective medical evidence of record, which has consistently reflected no instability or weakness of the left ankle. No left ankle instability or weakness has ever been noted on objective examination, in September 2009, when receiving treatment for a reported fall due to his left ankle, examination revealed that the ankle ligaments were stable, and in September 2012, muscle strength testing was full in plantar flexion and dorsiflexion in both ankles and there was no laxity of the left ankle on either anterior drawer test or talar tilt test (inversion/eversion stress). Moreover, the September 2012 VA examiner was specifically requested to address the Veteran's asserted falls due to his left ankle. While acknowledging that the Veteran could fall when he reinjured his left ankle without the reinjury resulting in an unstable ankle, the examiner stated that on the basis of his physical examination and X-ray findings, in the examiner's opinion, the Veteran's left ankle sprain with recurrence was most likely not the cause of repeated falls. In expressing this opinion, the examiner noted that the Veteran had a normal X-ray of the left ankle in August 2009, and that physical examination showed that there was no increase in the ligamentous laxity to inversion and eversion stress on the left compared to the right. Moreover, while the Veteran has asserted that his falls due to his left ankle disability are of a high frequency, have resulted in repeated severe injury, and have cost him his job and ability to be hired, the September 2009 treatment record indicating that the Veteran reported falling the week before because of his service-related left ankle injury and injuring his head, teeth, and breaking his glasses, also indicates that the Veteran reported his ankle unstable while walking up inclines, and that he had a brace for this but was not wearing it because it was bulky. It was noted at that time that the Veteran agreed to start wearing his brace. However, it was not subsequently noted in any record that the Veteran had begun wearing any such brace, despite the asserted severity of his ankle instability and the falls resulting from it; on September 2012 VA examination, while the Veteran reported that he continued to roll his ankle one to two times per week and fell due to rolling of his left ankle about once a month, it was noted that the Veteran did not use any assistive devices as a normal mode of locomotion, including any braces. The lack of use of any such brace or other such preventative measures, even though such brace has apparently been available for use by the Veteran, further diminishes the Veteran's credibility with respect to the asserted frequency, severity, consequences, and functional impact of falls due to his left ankle disability. Therefore, even considering the Veteran's assertions of constant injuries due to frequent falls resulting from left ankle weakness, as the Board finds that the evidence of record diminishes the credibility of such statements with regard to the frequency, severity, consequences, and functional impact of falls due to his left ankle disability, the Board finds that the Veteran's left ankle disability nonetheless more closely approximates moderate limitation of motion than marked limitation of motion of the ankle. The Board has considered DCs 5270, 5272, 5273, and 5274. However, while in his March 16, 2009, claim for increase the Veteran asserted that he had ankylosis of the left ankle, the record does not reflect that any time during the appeal period there has been ankylosis of the ankle, ankylosis of the subastragalar or tarsal joint, malunion of os calcis or astragalus, or astragalectomy. See 38 C.F.R. § 4.71a, DCs 5270, 5272, 5273, and 5274. Furthermore, the Board has considered the criteria for DC 5284 for foot injuries, other, but finds that such rating criteria are not applicable. The Veteran's disability of chronic right ankle sprain is most accurately rated as disability of the ankle rather than disability of the foot. Also, the Veteran's current right ankle disability has been manifested primarily by pain with occasional swelling and some functional impairment with walking and other normal use of the ankle, and approximates "moderate" limitation of motion. The Board finds that such disability would not approximate "moderately severe" foot injury more closely than "moderate" foot injury. See 38 C.F.R. § 4.71a, DC 5284. The Board has also considered the applicability of other diagnostic codes for rating the Veteran's disability, but finds that no other diagnostic code provides a basis for higher rating. The rating codes discussed above specifically pertain to orthopedic disability of the ankle. The Veteran's disability has not been shown to involve any factors that warrant evaluation under any other provision of VA's rating schedule. Also, this case should not be referred to the Director of the VA Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 3.321(b). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate, which involves a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). The record reflects that the Veteran has repeatedly asserted being fired from his job because it required walking on a gravel lot, where his ankle instability caused him to have multiple falls and time off from work, and that he had not been able to obtain employment thereafter due to his disability. The Board recognizes that the Veteran's left ankle disability has been productive of functional impairment. The assigned 10 percent rating reflects that his disability is productive of impairment in earning capacity. However, the record does not reflect that the average industrial impairment from his disability would be in excess of that contemplated by the assigned rating. The Veteran's left ankle disability has been primarily manifested by pain with occasional swelling and some functional impairment with walking and other normal use of the ankle, and has approximated moderate limitation of motion. However, such manifestations are reasonably contemplated by the schedular criteria for a 10 percent rating under DC 5271, which contemplates ankle disability of the nature and severity of disability producing moderate limitation of ankle motion. The record does not reflect that the Veteran's left ankle disability has caused impairment in earning capacity above what would be average for such disability. As noted above, the Veteran has also repeatedly asserted that he suffers constant injuries due to falls several times a month resulting from left ankle weakness. While such symptomatology may not be contemplated by the criteria for a 10 percent rating under DC 5271, as discussed above, the Board finds that the evidence of record diminishes the credibility of such statements with regard to the frequency, severity, consequences, and functional impact of falls due to his left ankle disability. Furthermore, the record reflects that the Veteran's asserted injuries due to falls, including a right shoulder injury, elbow injury, right wrist injury, back injury, and face injury, have been separately adjudicated as disabilities claimed on a secondary basis. As such injuries have been separately adjudicated as claimed secondary disabilities, they are not for consideration in determining the Veteran's rating for his left ankle injury. See 38 C.F.R. § 4.14; see also Brady v. Brown, 4 Vet. App. 203, 206 (1993); Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Also, aside from his bare assertions, the record does not reflect that the Veteran's disabilities have been productive of marked interference with employment, and there is no indication in the record of frequent hospitalizations related to such disability. The Veteran has not submitted or identified any evidence supporting his assertions that he was fired for his disability, or that his disability kept him from being hired, such as statements from former, current, or potential employers, or other such evidence. Also, the September 2012 VA examiner, after reviewing the claims file and examining the Veteran, opined that there was no functional loss or functional impairment of the ankle, and that the Veteran's ankle condition did not impact his ability to work. In sum, the Board has determined that there are no unusual or exceptional factors in this case warranting the referral of the claim for extraschedular consideration. Accordingly, a rating in excess of 10 percent for left ankle injury residuals is not warranted, and there is no basis for staged rating of the Veteran's disability pursuant to Hart. As the preponderance of the evidence is against assignment of any higher rating, the benefit-of-the doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3 (2012); Gilbert, 1 Vet. App. at 53-56. ORDER Service connection for lumbar spine degenerative joint disease is granted. A higher rating than 10 percent for left ankle injury residuals is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs