Citation Nr: 1318731 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 09-15 123 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for left Achilles tendinitis with secondary left ankle fracture and posttraumatic osteoarthritis. 2. Entitlement to a separate compensable disability rating for residual surgical scars of the left ankle. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Postek, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1985 to August 1990. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. Based on considerations raised by the record, the Board has recharacterized and bifurcated the issues on appeal, as explained in greater detail below. In January 2010, the Veteran testified at a hearing before the Decision Review Officer (DRO) at the RO. A transcript of the proceeding is of record. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's left Achilles tendinitis with secondary left ankle fracture and posttraumatic osteoarthritis has been productive of marked limitation of motion, but not ankylosis, malunion of the os calcis or astragalus, or astragalectomy. 2. The Veteran has two post-operative scars of the left ankle that are superficial and stable; one of these scars was painful, to include on examination. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for left Achilles tendinitis with secondary left ankle fracture and posttraumatic osteoarthritis has not been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5024-5271 (2012). 2. The criteria for a separate 10 percent disability rating for residual surgical scars of the left ankle have been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.118, Diagnostic Code 7804 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, VA must inform the claimant of any information and medical or lay evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Contrary to VCAA requirements, VCAA-compliant notice in this case was not provided upon receipt of a complete or substantially complete application for benefits. Mayfield v. Nicholson, 444 F.3d 1328, 1332-33 (Fed. Cir. 2006); see also 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159. In this regard, the Board notes that such notice was not provided at the time of documentation of the May 2002 VA treatment record, in the constructive possession of VA, accepted as the date of receipt of the claim for increase granted in the rating decision on appeal. See 38 C.F.R. § 3.157. Nonetheless, appropriate VCAA notice was provided following the Veteran's August 2007 written statement requesting an evaluation of his left Achilles disability, including with respect to the disability rating and effect date elements of his claim. Thereafter, the claim was initially adjudicated in the November 2007 rating decision and readjudicated in the statement of the case and supplemental statement of the case. As such, any timing deficiency was cured by this readjudication of the claim. Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007). The VCAA also requires VA to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The record reflects that all pertinent available service treatment records and all available post-service medical evidence identified by the Veteran have been obtained. The Veteran's written statements are also of record, and he was afforded an opportunity to present testimony at a hearing before the DRO. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. In addition, the Veteran was afforded appropriate VA examinations in connection with his claim. The Board finds that the examinations were adequate, in that the exams were conducted by medical professionals who reviewed the claims files, solicited history from the Veteran, and performed thorough examinations. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (noting that even if not statutorily obligated to do so, if VA provides the veteran with an examination in a service connection claim, the examination must be adequate); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Based on the foregoing, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. Bernard v. Brown, 4 Vet. App. 384 (1993). Legal Principles and Analysis Disability ratings are determined by application of the criteria in the VA Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R., Part 4 (2012). Each disability must be viewed in relation to its history, and there must be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ("staged") ratings may be assigned for separate periods of time based on the facts found. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Here, as explained below, uniform ratings are warranted. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran contends that he is entitled to a higher rating for his service-connected left Achilles tendinitis with secondary left ankle fracture and post traumatic osteoarthritis, which is currently assigned a 20 percent rating from May 30, 2002 pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5024-5271. The Veteran was assigned a temporary total rating from June 18 to September 1, 2002 for surgery on his left ankle necessitating a convalescent period, and the 20 percent rating was restored thereafter. Historically, the Veteran was assigned a 10 percent disability rating prior to May 30, 2002 for his left Achilles disability under the same provision. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Diagnostic Code 5024 for tenosynovitis indicates that the disease will be rated on limitation of motion of the affected parts, as degenerative arthritis (Diagnostic Code 5271). Following submission of the Veteran's August 2007 written statement requesting evaluation of his left Achilles disability, a review of the VA treatment records starting from 2001 by the RO provided the basis for claims for the increased rating to 20 percent and the temporary total rating granted in the rating decision. See 38 C.F.R. §§ 3.157(b), (b)(1) (once formal claim for compensation has been allowed, receipt of report of examination or hospitalization by VA will be accepted as an informal claim for increase). As such, the remaining question before the Board is whether the Veteran is entitled to a disability rating in excess of 20 percent for his left Achilles disability at any time during this appeal period. Under Diagnostic Code 5271, a 20 percent rating is warranted for marked limitation of motion of the ankle. This is the maximum schedular rating under this diagnostic code. The Board must also consider, however, all other potentially applicable diagnostic codes. Schafrath, 1 Vet. App. at 593. Under Diagnostic Code 5270, a 20 percent evaluation is assigned for ankylosis of the ankle in plantar flexion less than 30 degrees. A 30 percent rating is warranted for ankylosis of the ankle in plantar flexion, between 30 and 40 degrees, or in dorsiflexion, between 0 and 10 degrees. A 40 percent rating is warranted for ankylosis of the ankle in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion or eversion deformity. For VA compensation purposes, the normal range of motion of the ankle is 20 degrees of dorsiflexion and 45 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II. In addition, the words "mild," "moderate," and "severe" are not defined in the VA rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The other diagnostic codes applicable to the ankle, 5272 through 5274, applicable to ankylosis of subastragalar or tarsal joint, malunion of os calcis or astragalus, and astragalectomy, also provide for maximum 20 percent ratings. In addition, when evaluating musculoskeletal disabilities, consideration is given to additional functional loss experienced due to pain, weakness, excess fatigability, and incoordination, to include with repetitive use or during flare-ups, as these factors are not contemplated in the relevant rating criteria. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the diagnostic codes based on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7, 10 (1996). VA treatment records beginning in 2001 show that the Veteran was status post-ORIF (open reduction internal fixation) of the left ankle several years prior and was seen for complaints of chronic left ankle pain. On physical examination in May 2002, range of motion was noted as plantar flexion to 30 degrees, minimal eversion and inversion. An x-ray report revealed left ankle degenerative joint disease, healed fracture. The assessment/plan was left ankle arthritis; tender over medial malleolus screws, schedule for removal of hardware of medial malleolus and syndesmosis screw. In June 2002, the Veteran underwent surgery to remove the hardware of the left ankle. Following surgery and a period of convalescence, a September 2002 VA treatment record shows that the Veteran continued to complain of ankle pain (6/10); functionally, he remained independent in ambulation but often wore an air cast. On physician examination, dorsiflexion was decreased to neutral, with full plantar flexion and full eversion and inversion; the scar of the medial aspect of the ankle was noted as well-healed. The assessment continued as left ankle posttraumatic osteoarthritis based on the May 2002 x-ray report, with decreased range of motion as a result. A November 2002 VA treatment record shows that the Veteran reported improvement in the range of motion and function and benefit from physical therapy. On examination, range of motion continued to be decreased in dorsiflexion to neutral; resistance to plantar flexion and eversion elicited pain. The scar on the medial aspect of the ankle was noted as healed, and a notation of no deformities was made. A January 2005 VA treatment record shows that the Veteran complained of intermittent pain in spite of therapy; in the past two weeks, the pain had gotten worse. He reported that the pain was present all the time, but got sharper with weightbearing. On physical examination, a scar on the left ankle, medial aspect had tenderness over it; there was also tenderness over the medial malleolus. Range of motion was noted to be "not too bad." A February 2007 VA treatment record shows that the Veteran reported continued intermittent pain in his left ankle, centered around the medial malleolus. A notation was made that he was a community ambulator and not limited by the pain. On physical examination, range of motion was 45 degrees of plantar flexion. The assessment remained left ankle posttraumatic osteoarthritis. The Veteran received his first steroid injection of record following the 2002 surgery that day. An April 2007 VA treatment record shows that the Veteran reported that the pain had improved following the steroid injection but was still present. On physical examination, range of motion was 45 degrees of plantar flexion. Scars of the medial/lateral ankle were noted to be well-healed, and there was tenderness to palpation about the medial malleolus. In an August 2007 written statement, the Veteran indicated that his left Achilles disability had increased significantly in severity. The following month, an RO report of contact memorandum shows that the Veteran requested an increase in this disability, to include consideration of the ankle fracture and arthritis. The Veteran was afforded a VA examination in September 2007, during which he complained of constant pain in the left ankle joint, to include the tendo Achilles. He reported that he wanted to leave his current occupation as a cook due to his limitation in standing for long periods due to the pain. He reported flare-ups of at least five times each month, precipitated by standing, alleviated with rest. On physical examination, range of motion was dorsiflexion from -5 degrees to neutral, plantar flexion -5 to 25 degrees, , noted to be limited all around in the left ankle (including supination and pronation) with pain on motion and after repetitive motion. The left ankle was swollen and tender all around, including the tendo Achilles. There was no ankylosis. A postoperative scar was noted on the left ankle, depigmented in color, with no other measurement or description. The diagnosis remained Achilles tendinitis in post-operative status, with residual progressive degenerative changes of the left distal tibiofibular joints. A February 2008 VA treatment record shows that the Veteran complained of pain in the left ankle lasting the past three months. He stated that the injection worked for a long time and made the pain bearable. Thereafter, a March 2008 VA treatment record shows that the Veteran was seen by the orthopedic clinic for another cortisone shot. At that time, he reported that he recently started taking Naprosyn BID with much pain improvement and wanted to hold off on a repeat injection. A November 2008 VA treatment record shows that the Veteran returned for a cortisone injection after pain was uncontrolled by medication. He indicated that the pain was worse during his job as a chef, and he was looking for a job where he would be able to stand less for prolonged periods. On physical examination, the anterior ankle and medial and tibial malleolus were tender to palpation. Range of motion was 5 to 40 degrees of plantar flexion. The medial/lateral ankle scars were noted as well healed. A March 2009 VA treatment record shows that the Veteran requested a delay in the next cortisone injection. On physical examination, range of motion was to neutral for dorsiflexion and 5 to 40 degrees of plantar flexion. A June 2009 VA treatment record notes that the Veteran appeared with minimal symptoms, to include continued swelling around the joint and range of motion substantially similar to the previous appointment noted above (dorsiflexion to 5 degrees and to 40 degrees of plantar flexion). He reported that a cortisone injection was not necessary at that time. In a July 2009 written statement, the Veteran stated that the arthritis in his left ankle limited him in the leisure activities he used to participate in, and did not allow him to engage in any employment requiring prolonged standing or walking. The only relief he got was from periodic steroid injections; he did not want to fuse the ankle, as the alternative for aggravation of the arthritis he said was provided by his doctors. He further indicated that an increase in his rating would afford him financial relief to change occupations and his normal hours of work. In January 2010, the Veteran appeared for a hearing before the DRO at the RO. He testified that he had recurring appointments for treatment of his left Achilles about every six months, in which he sometimes did not want the cortisone injection. He also testified to constant stiffness and pain in the area, being able to stand for about two hours before the pain started; he attributed his symptomatology in large part to his post-operative arthritis. He was treated with an anti-inflammatory and pain medications and indicated that he refused the recommendation of his doctors to fuse the ankle. He indicated that his work as a cook was difficult due to his disability and that he also had limited motion in the left ankle. See DRO Hearing Tr. at 2, 4-9. The Veteran was afforded a VA examination in February 2010, during which he reported complaints substantially similar to those in the previous treatment records, to include intermittent pain and limitation in standing at work, limitation in leisure sport activities, and decreased range of motion. He occasionally wore an ankle brace. On physical examination, range of motion was 5 degrees of dorsiflexion, 25 degrees of plantar flexion, with pain throughout. There was no additional limitation of joint function due to pain, fatigue, or lack of endurance after repetitive motion and no instability. Examination of the Achilles tendon revealed no deformities. The assessment remained substantially similar to that of the previous VA examination, of left Achilles tendinitis, post-operative ORIF with posttraumatic arthritis. The examiner noted two surgical scars, one each over the medial and lateral malleolus, both vertical. The Board notes that detailed descriptions of the scars above were both described as being of the lateral malleolus. However, based previous descriptions of record, the Board finds that the first description relates to the medial malleolus. Specifically, the May 2002 x-ray report (pre-removal) shows a healed bi-malleolar fracture stabilized by a lateral plate and two cannulated screws at the medial malleolus, and a syndesmotic screw. In addition, the VA treatment records show recurrent tenderness on the medial side, to include on the medial aspect scar. See, e.g., January 2005, November 2008 VA treatment records. To the extent that this conclusion is inaccurate, for reasons discussed in the analysis of the separate scar rating granted in this decision, the Board finds that the Veteran is not prejudiced by this determination, as it would result in the same rating awarded. Accordingly, the [medial] malleolus scar was large, fixed, superficial, stable, slightly whitish compared to surrounding skin, and slightly tender; the scar consisted of two oval portions (measuring 4 centimeters by 3 centimeters; 4 centimeters by 1 centimeter) and a middle vertical portion (measuring 1 centimeter by 2 centimeters). The left lateral malleolus scar was vertical (measuring 10 cm by 2 centimeters), superficial, well healed, stable, dark compared to surrounding skin, and nontender. A February 2010 VA treatment record shows that the Veteran had no new complaints. Surgical options including arthroplasty versus arthrodesis were discussed, but the Veteran indicated that he would continue non-operative management as long as possible before considering surgery. On physical examination, all prior incisions were well healed, and range of motion for plantar flexion was to 45 degrees. In a March 2010 written statement, the Veteran again indicated that he was opposed to having his left ankle fused. Based on the above evidence, the Board finds that a rating in excess of 20 percent for the Veteran's left Achilles disability is not warranted. As a preliminary matter, the evidence does not reflect that the Veteran has ankylosis of subastragalar or tarsal joint, malunion of os calcis or astragalus, or astragalectomy. In addition, the Rating Schedule generally prohibits pyramiding (i.e., evaluating the same disability under different diagnostic codes), and the Court has held that pyramiding is disfavored "unless the regulation expressly provides otherwise." Cullen v. Shinseki, 24 Vet. App. 74, 84 (2010); 38 C.F.R. § 4.14. The Board notes the Veteran's primary contention of requesting an increase in the left Achilles disability on the basis of consideration of the post-fracture residuals, to include osteoarthritis. These residuals have been contemplated in the current 20 percent rating assigned under Diagnostic Code 5271, and assignment of an additional evaluation for this same disability would be prohibited as pyramiding as well. Indeed, the diagnostic code for tenosynovitis under which the Veteran is rated instructs that the rating be determined as degenerative arthritis based on limitation of motion. This 20 percent rating is also greater than would be allowed under Diagnostic Code 5003 for degenerative arthritis, to the extent this rating criteria is potentially applicable. As such, the remaining consideration is whether the Veteran is entitled to a higher schedular rating under Diagnostic Code 5270, the only provision for rating the ankle higher than 20 percent. In this regard, the record does not reflect, and the Veteran does not contend, that he has ankylosis of the ankle. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (internal medical dictionary citation omitted). Based on the aforementioned range of motion findings, the record shows that the Veteran's left ankle is not fixated or immobile; the September 2007 VA examiner specifically noted no ankylosis. While the noted ranges of motion were notably limited by pain throughout the appeal period, these findings are consistent with and fully contemplated by the 20 percent rating currently assigned. Moreover, where the Veteran is in receipt of the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis, the regulations pertaining to functional loss due to pain, weakened movement, excess fatigability, incoordination, and reduction of normal excursion of movements, painful motion with joint or peri-articular pathology, and actually painful, unstable, or malaligned joints, due to healed injury (i.e., 38 C.F.R. §§ 4.40 , 4.45, and 4.59) are not for application. Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997) (although the Secretary suggested remand because of the Board's failure to consider functional loss due to pain, remand was not appropriate because higher schedular rating required ankylosis). In sum, there is no basis for a higher rating under Diagnostic Code 5270. Thus, on this record, the Board concludes that the weight of the evidence is against the Veteran's claim for a rating in excess of 20 percent for the service-connected left Achilles disability. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied. Gilbert, 1 Vet. App. at 53. The issue of whether a separate compensable rating is warranted for the Veteran's post-surgical scars is also raised by the record. Currently, the two scars are evaluated with the service-connected left Achilles disability as residuals. For the reasons set forth below, the Board finds that the Veteran is entitled to a separate rating for one scar under Diagnostic Code 7804. As an initial matter, the Board notes that the rating criteria for scars were amended, effective October 23, 2008. See 73 Fed. Reg. 54708 (September 23, 2008). These changes went into effect during the pendency of the Veteran's claim. At the time the Veteran filed his claim, Diagnostic Code 7804 provided that superficial scars painful on examination warranted a 10 percent rating. Similarly, 10 percent ratings were available under Diagnostic Code 7802 for scars other than of the head, face, or neck if superficial and did not cause limited motion and for superficial, unstable scars under Diagnostic Code 7803. Higher ratings were provided under Diagnostic Code 7801 for scars other than of the head, face, or neck if deep or caused limitation of motion, and scars could be rated based on limitation of function of the affected part under Diagnostic Code 7805. The revised version of Diagnostic Code 7804 provides that one or two painful or unstable scars warrant a 10 percent rating, three or four scars that are unstable or painful warrant a 20 percent rating, and five or more scars that are unstable or painful warrant a 30 percent rating. The revised Diagnostic Code 7801 similarly provides for higher ratings for scars other than of the face, head, or neck if they are deep and nonlinear. The revised Diagnostic Code 7802 provides a 10 percent rating for scars other than of the head, face, or neck that are superficial and nonlinear. The revised Diagnostic Code 7805 provides that any disabling effects not considered in a rating provided under Diagnostic Codes 7800 through 7804 are to be considered under an appropriate diagnostic code for any disabling effects. As discussed below, the same rating is warranted in this case under both the old and new criteria. Consequently, discussion of retroactivity principles is unnecessary. In this case, as discussed in detail above, the record reflects that the Veteran has two post-surgical scars with recurrent tenderness on the medial side, to include on the medial scar. On VA examination in February 2010, the medial malleolus scar was superficial, stable, and slightly tender on examination. Based on these findings and contemplation of the Veteran's entire disability picture in this regard, the Board finds that a 10 percent rating is warranted under Diagnostic Code 7804. Again, to the extent that the VA examiner mislabeled the descriptions of the scars in the examination report, such that the lateral malleolus scar was the tender one, such a finding would not result in a different outcome under this diagnostic code, therefore not resulting in any prejudice the Veteran. Under both the prior and amended versions of Diagnostic Code 7804, painful scars warrant a 10 percent rating. In addition, to the extent there is a question about the possibility of two separate ratings for each scar under the old criteria, there is no basis for such a determination. Such separate ratings are not specifically authorized, and Note 1 to the former version of Diagnostic Code 7801 provides that scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25. The scars in this case are not on widely separated areas, and were a result of an operation for the single service-connected disability of the left Achilles. As such, 10 percent ratings for each scar, as opposed to a single, separate 10 percent rating for the left Achilles scars would constitute pyramiding and are not permitted. 38 C.F.R. § 4.14. In sum, a rating higher than 10 percent is therefore not warranted for the scars. The Board has also considered other diagnostic codes pertaining to the scars in both versions of the regulation. See Schafrath, 1 Vet. App. at 595. The evidence reflects that the scars are not deep, unstable, or cause limited motion (record reflects that limitation of motion was a result of pain in the ankle, which is contemplated by the left Achilles rating assigned), or of a certain size under either version of Diagnostic Code 7802 (which would result in an equivalent 10 percent rating). The medial malleolus scar was primarily symptomatic of tenderness, symptomatology most accurately considered under Diagnostic Code 7804. As such, these other potentially applicable diagnostic codes do not apply. 38 C.F.R. § 4.118 (considered under both versions). The Board notes that it has also considered the lay evidence of record, to include the Veteran's reports during VA examinations and his written submissions, in deciding this case. The Veteran is competent to report as to the symptoms he experiences and their history. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, even affording this lay evidence full competence and credibility, such evidence does not support ratings higher than those currently assigned. Consideration has also been given regarding whether the schedular evaluations in this case are inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the veteran or reasonably raised by the record). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this regard, the schedular evaluation in this case are not inadequate. Ratings in excess of those assigned for certain manifestations of the disabilities are provided, but the evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disabilities. While the Veteran indicated that he had difficulty in his job as a cook due to the amount of standing required, the record reflects that he was able to continue to work at that job while looking for another job and is not indicative of an unusual disability picture. Accordingly, these issues need not be referred for consideration of an extraschedular rating. ORDER Entitlement to a disability rating in excess of 20 percent for left Achilles tendinitis with secondary left ankle fracture and posttraumatic osteoarthritis is denied. Entitlement to a separate 10 percent disability rating for residual surgical scars of the left ankle is granted, subject to the laws and regulations governing the payment of monetary benefits. ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs