Citation Nr: 1324560	
Decision Date: 08/01/13    Archive Date: 08/13/13

DOCKET NO.  09-42 638	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Entitlement to service connection for a low back disability.

2.  Entitlement to service connection for a left leg disability, to include a muscle strain and lumbar radiculopathy.

3.  Entitlement to service connection for a left wrist and hand disability, to include carpal tunnel syndrome (CTS).

4.  Entitlement to an initial rating higher than 10 percent for a chronic left ankle strain.


WITNESSES AT HEARING ON APPEAL

The Veteran and her husband



ATTORNEY FOR THE BOARD

W.T. Snyder, Counsel


INTRODUCTION

The Veteran served on active duty from July to November 1990.  Thereafter, she had various verified periods of active duty for training (ACDUTRA) while a member of the Army Reserve between July 1990 and August 2004.

These matters come before Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, that denied the service connection claims; and, granted service connection for a chronic left ankle strain and assigned an initial 10 percent disability rating, effective in January 2007.

In April 2012, the Veteran testified at a Board hearing via video conference, with the Veteran sitting at the local RO, and the undersigned sitting at the Board's Central Office in Washington, DC.  A transcript of the hearing has been associated with her claims folder and has been reviewed.

In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's appeal. The Board has considered documents in both files while reviewing the appeal.

In August 2012, the Board remanded the case to the RO via the Appeals Management Center (AMC), in Washington, DC, for additional development.

The issues of entitlement to service connection for a low back and left wrist and hand disability, including CTS, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the AMC.


FINDINGS OF FACT

1.  The Veteran does not have a current left leg disability.

3.  The Veteran's left ankle disability has been manifested, since the effective date of service connection, by complaints of chronic pain and intermittent swelling without limitation of motion (LOM) or instability.


CONCLUSIONS

1.  The criteria for entitlement to service connection for a left leg disability are not met.  38 U.S.C.A. §§ 101(24), 106, 1101, 1110, 1112(a), 1131 (West 2002); 38 C.F.R. §§ 3.1(k), 3.6, 3.159, 3.303 (2012).

2.  The criteria for an initial rating higher than 10 percent for left ankle disorder are not met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.159, 3.321(b)(1), 4.1, 4.10, 4.40, 4.45, 4.59, 4.71(a), Diagnostic Code (DC) 5299-5019 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

As provided for by the VCAA, VA has a 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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

Proper notice from 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.  Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b)(1) (2012).

In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.

VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

Prior to issuance of the rating decision on appeal, the Veteran was sent a notice letter in February 2007.  This communication explained the division of responsibilities between VA and a claimant in developing an appeal.  The letter also expressly informed the Veteran how to substantiate a service connection claim and what type of information and evidence was needed to establish a disability rating and effective date in the event service connection is granted.  The Board finds the February 2007 letter was fully time and content compliant.  38 C.F.R. § 3.159(b).

The appeal with regard to the left ankle arises from disagreement with the initial rating following the grant of service connection.  The courts have held that once service connection is granted the claim is substantiated, additional VCAA notice is not required; and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).

The United States Court of Appeals for Veterans Claims (Court) has held that the provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam).

The Board notes that, at the April 2012 hearing, the undersigned ensured the Veteran was aware of the evidence needed to prove her claims, suggested evidence that would help her do so, held the record of the hearing open for receipt of any additional evidence obtained, and-as noted, remanded the case for additional development.  The remand was complied with by efforts to obtain additional evidence and by arranging appropriate examinations.  In light of these factors, the Board finds the duties imposed by Bryant were met.

In light of all the above, the Board finds VA fully complied with the VCAA notice requirements.  38 C.F.R. § 3.159(b); see also Bryant and Dingess/Hartman, both supra.

VA also has a duty to assist the Veteran in the development of the claim.  This duty includes assisting her in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  Upon receipt of the Veteran's claim, the RO obtained the service treatment records, identified private treatment records, VA outpatient records, and arranged an examination of the Veteran.  The Veteran has not asserted that there is additional evidence to be obtained, or that VA has failed to seek any records identified as relevant.

In accordance with the Board's remand instructions, the AMC attempted to verify the periods of the Veteran's ACDUTRA and INACDUTRA by contacting NPRC and obtaining personnel records.  The Board is remanding some issues for further efforts to verify the Veteran's periods of ACDUTRA and INACDUTRA.  Those efforts could not substantiate the left leg claim, because the evidence does not show a current left leg disability.  Verifying additional periods of service could not serve to show a current disability.  Similarly the rating for the ankle disability turns on the severity of the disability since the grant of service connection.  Knowing additional dates of ACDUTRA or INACDUTRA could not shed light on the severity of the disability.  Cf. Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009) (holding VA has a duty to obtain service treatment records in an increased or initial rating claim). 

VA has obtained records of all relevant treatment, and afforded the Veteran adequate examinations.

In light of the above, the Board finds VA has fully assisted the Veteran with her claim, and that the record is sufficiently developed for a decision on the merits of the appeal without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).

Governing Law and Regulations

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training INACDUTRA during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident, which occurred during such training.  38 U.S.C.A. § 101(21), (24); 38 C.F.R. § 3.6(a), (d).  ACDUTRA includes full-time duty performed for training purposes by members of the National Guard of any state.  38 U.S.C.A. §§ 101(22), 316, 502, 503, 504, 505; 38 C.F.R. § 3.6(c)(3).

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). 

Certain chronic diseases such as arthritis are presumed to have been incurred in service if such manifested to a compensable degree within one year of separation from service.  This presumption applies to veterans who have served 90 days or more of active service during a war period or after December 31, 1946.  38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a).  Presumptive periods do not apply to ACDUTRA or INACDUTRA.  Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991).

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element in a claim involving a chronic disease, is through a demonstration of continuity of symptomatology, Barr v. Nicholson, 21 Vet. App. 303 (2007), if the condition is a chronic disease.  Walker v. Shinseki, 708 F.3d 131 (Fed. Cir. 2013).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a chronic disease was "noted" during service or within any applicable presumptive period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Walker, supra; see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  If a chronic disease is adequately demonstrated during service and at any time thereafter, service connection will be conceded.  38 C.F.R. § 3.303(b).

In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical profession."  See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence."

"Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology."  Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991).  Once evidence is determined to be competent, the Board must determine whether such evidence is also credible.  See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (distinguishing between 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").
Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection.  The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid.  38 C.F.R. §§ 3.307, 3.309. 

The Board must fully consider the lay assertions of record.  Davidson, 581 F.3d 1313.  A layperson is competent to report on the onset of disability and, when applicable, continuity of his or her current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson, 581 F.3d at 1316; see Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007).
 
When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra. 

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit, citing its decision in Madden, recognized that the Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a). The Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson, 2 Vet. App. at 618. 

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, 7 Vet. App. at 511, aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  The bottom line is that lay testimony, where probative on the issue, still must be assessed for credibility and accuracy.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Analysis

The Veteran indicated on her Formal claim (VA Form 21-526), and in her hearing testimony, that she injured her left leg in July 1992 during an ACDUTRA tour.  An entry in the service treatment records dated in July 1992 notes the Veteran sought treatment.  No details are noted in the entry, other than the left leg had given the Veteran problems since the prior day.  A physician noted the knee was stable, and the x-ray was negative, and a diagnosis of strained left calf muscle was noted.  The Veteran was issued Motrin and an Ace wrap, and she was excused from running.  The wrap was applied to the left knee, and the Veteran was told to adjust it as needed and to return if there were any problems.

Although a July 2003 Points Summary issued by the Veteran's immediate Reserve headquarters reflects that she did not earn any active duty points for the period June 1991 to June 1993, a March 1992 special order reflects the Veteran's unit was ordered to ACDUTRA for a two week-period in July 1992.  An attachment to the order notes the Veteran among the unit members covered by the order.  In as much as the Points Summary, by its terms, notes the prospect that not all tours may have been reported and listed, the Board naturally gives priority to the special order that ordered the Veteran's unit to ACDUTRA.  Thus, in addition to the Veteran's lay testimony, documentary evidence in the claims file shows an in-service event and that the Veteran was performing active service at the time.  Therefore, two of the required elements for service connection are shown.  See 38 C.F.R. § 3.303(a).

There still remain two salient questions, however: 1) does the Veteran have a current left leg disability, and 2) if so, is any disability related to the July 1992 in-service event.  Id.

The December 2007 VA examination report reflects the Veteran reported that a doctor had not diagnosed a left leg disorder, and that her left leg pain had its onset in 2004 due to a fall.  Physical examination revealed the Veteran's posture and gait as normal.  The tibia and fibula were within normal limits.  No knee abnormality was noted, and knee range of motion (ROM) was normal at 0 to 140 degrees.  See 38 C.F.R. § 4.71a, Plate II.  ROM did not reveal pain, fatigue, weakness, or lack of endurance.  Medial and all ligaments were within normal limits.  The examiner noted that there was no pathology found on clinical examination on which to render a diagnosis.  In other words, no left knee disorder was found.

The Board notes the Veteran disputed the thoroughness and fairness of the initial examination.

As earlier noted, the Board remanded for another examination.  The April 2013 examination report reflects the left leg examination was within normal limits.  The examiner did not diagnose a left leg musculoskeletal or muscle disorder.

While a claimant may well have experienced an in-service injury, as is the Veteran's case; nonetheless, there must be evidence of a current disability either proximate to the time the claim was filed; or at any time during the process.  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).  There is no clinical or medical evidence showing a left leg disability.

At the hearing the Veteran described her leg pain as cramps in the calf muscle.  The cramps occurred primarily at night, and they were very painful.  Her husband agreed that was the main symptom, and the cramps had occurred since the year he married the Veteran, 2007.  Transcript, pp. 7-8.

There have been no findings of an underlying left leg disability.  The Board noted in its previous remand that private treatment records indicated that radiculopathy was suspected, based on the Veteran's complaints, but these records contain no findings of a left leg disability.  Pain by itself is not a disability.  There must be a disability underlying the pain.  See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) (Pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted).  The Veteran has provided competent reports of left leg symptoms, but an underlying disability has not been demonstrated.

In the absence of a currently demonstrated left leg disability, the weight of the evidence is against the claim, reasonable doubt does not arise and the claim is denied.  38 U.S.C.A. § 5107(b) (West 2002).

Initial Rating

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  

Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  VA must also interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability.  38 C.F.R. § 4.2.  

VA will resolve any reasonable doubt regarding the degree of disability in favor of the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3.  Where there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7, see also 38 C.F.R. § 4.21.  The Board will consider entitlement to staged ratings to compensate for times since filing the claim when either disability may have been more severe than at other times during the course of the claim on appeal.  Fenderson v. West, 12 Vet. App. 119 (1999).

For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45 (2012), pertaining to functional impairment.  The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain.  Such inquiry is not to be limited to muscles or nerves.  These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain.  DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2006).

Analysis

The April 2008 rating decision reflects the RO evaluated the Veteran's left ankle disability analogously to bursitis.  See 38 C.F.R. § 4.20.  Bursitis is rated under DC 5019, which is turn requires the disorder to be rated as degenerative arthritis of the affected joint.  See 38 C.F.R. § 4.71a.  Degenerative arthritis is rated on the basis of LOM of the affected joint.  Where the LOM is noncompensable, a 10 percent rating is warranted.  38 C.F.R. § 4.71a, DC 5003.

The rating criteria for ankle pathology provide for a 10 percent rating for moderate LOM, and a 20 percent rating for marked LOM.  38 C.F.R. § 4.71a, DC 5271.

The December 2007 examination report reflects the Veteran reported constant pain, weakness and swelling.  She described the pain as aching and sharp.  On a scale of 1 to 10, the Veteran assessed her pain on average as 6/10.  Her pain was triggered by physical activity and, at times, came on by itself.  She used Motrin for relief.  The Veteran also reported use of an ankle brace for support.

Physical examination of the left ankle revealed no deformity.  The examiner noted that there was no ankylosis nor was the ankle joint in any fixed position.  ROM was normal, but the examiner did note guarding of movement.  No malunion was noted.  The examiner diagnosed chronic left ankle strain.

Normal ROM of the ankle on dorsiflexion is 0 to 20 degrees, and 0 to 45 degrees on plantar flexion.  See 38 C.F.R. § 4.71, Plate II.  The objective findings on clinical examination showed the Veteran's reported left ankle pain was not productive of functional loss, as ROM was normal.  The examiner, however, did note guarding of movement, which may reasonably be interpreted as pain on movement.  Thus, as the April 2008 rating decision determined, the Veteran's disability warranted a 10 percent rating for functional loss due to pain.  See 38 C.F.R. § 4.59; see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

The Board finds a higher rating was not met or approximated, as the examiner noted repetitive use resulted in pain and weakness but no additional loss of ROM.  See 38 C.F.R. §§ 4.40 and 4.45.  Thus, the Board is constrained to find the left ankle more nearly approximated the assigned 10 percent rating as of the 2007 examination.  38 C.F.R. §§ 4.1, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5271.

At the hearing the Veteran testified her left ankle swelled on a constant basis.  On average, she experienced swelling two to three times per two-week period.  She testified further that she could walk a mile without problems, and a doctor told her to wear a brace.  On the basis of her testimony, the Board remanded for another examination.  See 38 C.F.R. § 3.159(a)(1).

The April 2013 examination report reflects the Veteran reported left ankle swelling and pain, which increased on certain physical activity, such as walking farther than a mile and one-half.  She denied any flare-ups that impacted her functioning.  

Physical examination revealed no edema or discoloration.  There was mild tenderness on deep palpation at the medial malleolus and anterior ankle.  The ROM on plantar flexion was 0 to 45 degrees or greater without any objective evidence of pain.  Dorsiflexion was 0 to 20 degrees or greater, also without any objective evidence of pain.  There was no evidence of laxity.  Left ankle x-rays were read as having shown no abnormality.

The objective findings on clinical examination show the Veteran's symptoms to be pain and intermittent swelling.  Pain alone, however, is not a valid basis for a higher rating.  It is the functional loss due to pain that is rated.  Mitchell, supra.  The left ankle ROM was normal.  Further, the examiner noted repetitive use testing did not change the left ankle ROM values.  See DeLuca, 8 Vet. App. 202.  The Veteran reported she worked at a desk job, and the left ankle disorder did not impact her ability to do her job.  Thus, the Board finds the assigned 10 percent rating reasonably compensates the Veteran for her functional loss due to pain.  38 C.F.R. §§ 4.1, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5271.

The Board notes the Veteran's left ankle is rated analogously.  Nonetheless, the examination report reflects the Veteran's motor strength was normal at 5/5 in all planes, and the examiner did not note any neurological abnormalities.  Hence, the Board finds no factual basis for a higher rating under another Diagnostic Code.  

As noted earlier, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings are permissible.  See Fenderson, supra.  In the Veteran's case, however, the evidence reflects her left ankle symptoms have remained constant throughout the course of the period on appeal.  Thus, there is no factual basis for a staged rating for any part of the initial rating period.

Pursuant to § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards."  38 C.F.R. § 3.321(b)(1) (2008).  

The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996).  Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record.  Barringer v. Peake, 22 Vet. App. 242 (2008).

If the evidence raises the question of entitlement to an extraschedular rating, 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.  Therefore, initially, there must be 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.  Thun v. Peake, 22 Vet. App. 111 (2008).

Under the approach prescribed by VA, 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.  In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization").  

The Veteran's ankle disability has been manifested by complaints of pain on motion and swelling.  Pain is an element of the limitation of motion that is contemplated under the rating criteria.  See 38 C.F.R. §§ 4.40, 4.45.  Swelling is also contemplated in the rating criteria.  See 38 C.F.R. § 4.45(f).  Accordingly, referral for consideration of an extraschedular rating is not warranted.

The Court has held that entitlement to a total rating for compensation purposes based on individual unemployability (TDIU) is an element of all appeals of an initial rating.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability.  Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).  TDIU is not raised in an initial rating unless the Roberson elements are shown.  Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009).  In this case, there have been no reports of unemployability.  The Veteran has reported that she is employed, and her disability has not interfered with that employment.

The Board has considered the doctrine of reasonable doubt.  As the preponderance of the evidence is against the Veteran's claim, reasonable doubt does not arise.  Schoolman v. West, 12 Vet. App. 307, 311 (1999).


ORDER

Entitlement to service connection for a left leg disorder is denied.

Entitlement to an initial rating higher than 10 percent for left ankle disorder is denied.


REMAND

The August 2012 remand asked a medical examiner to opine whether the Veteran's currently diagnosed low back disability is causally connected to a July 1992 event during a tour of ACDUTRA.  The Board also asked for a medical opinion as to whether the Veteran may have aggravated an existing low back disorder during a tour of ACDUTRA.  The examiner opined in the negative on both accounts.  The Board notes, however, that the examiner referenced the absence of a Line of Duty determination (LOD) and also the absence of confirmed tours of ACDUTRA after 1990 as part of the rationale for the opinions.  

As noted earlier, the Veteran's unit was ordered to ACDUTRA in July 1992.  There may be additional sources for verifying additional periods of ACDUTRA and INACDUTRA.  

Accordingly, the case is REMANDED for the following action:

1.  The AMC/RO should contact both the U.S. Army Reserve Personnel Command at St. Louis, MO; and, the HQ 120th U.S. Army Reserve Command, Ft. Jackson, SC 29207-6070, and request copies of any special orders extant that ordered the Veteran or her unit to ACDUTRA for the period 1993 to 2004.  All efforts to obtain these records should be documented in the claims file.

2.  After the above is complete, regardless of whether additional records are obtained, send the claims file to the examiner who conducted the April 2013 examination.  

Inform the examiner that the absence of a LOD determination is not significant, as there is no evidence the Veteran was absent from duty for 24 hours or more due to illness or injury and LOD reports are not ordinarily created unless there is an absence from duty that lasted 24 hours or more.

The examiner noted in the examination report that there were no confirmed periods of ACDUTRA in the claims file after 1990.  Special orders; however, ordered the Veteran onto ACDUTRA, in July 1992, and in June and July 2000.  The examiner should also consider the reports of service department medical examinations in August 1996, September 2001, and March 2003.

The examiner is asked to opine as follows:

Is the Veteran's facet trophism a congenital defect or a congenital disease?  

If a congenital disease, is there at least a 50-percent probability the facet trophism increased in severity on or after July 1992?  If so, is there at least a 50-percent probability any increase was due to the natural progression of the congenital condition; or, was it due to the rigors of the Veteran's periodic tours of ACDUTRA from the point in time when it increased in severity?

The examiner should provide reasons for the opinion that the Veteran's lumbar spine degenerative disc disease was age-related.  

If the lumbar spine degenerative disease is due to the natural aging process, did the in-service incident in July 1992, and rigors of tours of ACDUTRA between 1992 and 2004, hasten the development of degenerative disc disease?

The examiner should provide reasons for all opinions.  If the requested opinions cannot be provided without resort to speculation, a full explanation of why should also be given.

If the examiner who conducted the April 2013 examination is no longer available, refer the claims file to an equally qualified examiner.

Should the examiner advise the requested opinion cannot be rendered without an examination of the Veteran, the examination should be arranged.  The claims file must be provided for review by the examiner as part of the examination.

3.  If any benefit sought on appeal remains denied, a supplemental statement of the case (SSOC) should be issued.

The case should thereafter be returned to the Board, if in order.  The Board intimates no opinion as to the ultimate outcome of this case.  The Veteran need take no action unless otherwise notified.  VA will notify him if further action is required on his part.  He has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs