Citation Nr: 1335708	
Decision Date: 11/05/13    Archive Date: 11/13/13

DOCKET NO.  09-34 317	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Los Angeles, California


THE ISSUES

1. Entitlement to an effective date earlier than June 12, 1997, for the grant of service connection for rheumatic heart disease.

2. Entitlement to a rating in excess of 60 percent for rheumatic heart disease.

3. Entitlement to a rating in excess of 10 percent for residual nondisplaced fracture of the right fibula.


ATTORNEY FOR THE BOARD

G. Jackson, Counsel





INTRODUCTION

The Veteran had active service from May 1976 to July 1976, November 1976 to June 1978 and from October 1979 to April 1980.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from September 2007 and September 2008 rating decisions. In the September 2007 rating decision, the RO denied a rating in excess of 60 percent for the rheumatic heart disease and denied a compensable rating for the residual nondisplaced fracture of the right fibula. In the September 2008 rating decision, the RO assigned a 10 percent rating for the residual nondisplaced fracture of the right fibula effective from April 3, 2007 (date current claim for increase was received) and continued the denial of a rating in excess of 60 percent for the rheumatic heart disease.

In his substantive appeal, the Veteran requested a hearing before a Veterans Law Judge at the RO. An August 2013 report of general information reflects the Veteran's withdrawal of his hearing request.  

In October 2013, the Veteran submitted additional evidence directly to the Board. However, the Board notes that the additional evidence relates to coronary artery disease (CAD), which involves a disease process that is different from that related to the service-connected rheumatic heart disease, which forms the basis for the Veteran's claim for increase currently before the Board on appeal. As such, this additional evidence is not relevant to the claims currently before the Board.   

The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's 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 issue on appeal.

The issue of service connection for a right knee disorder claimed as secondary to the service-connected residual nondisplaced fracture of the right fibula has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  


FINDINGS OF FACT

1. Effectuating a November 2005 Board decision granting service connection, the RO, in an April 2006 rating action, assigned a 60 percent rating for the service-connected rheumatic heart disease effective June 12, 1997, the date of his original claim for compensation. He did not appeal this decision.  

2.  In the absence of a timely appeal of the April 2006 rating decision, this decision is final and an effective date prior to June 12, 1997, for the grant of service connection for rheumatic heart disease is legally precluded.

3. The Veteran's rheumatic heart disease is manifested by episodes of acute congestive heart failure; workload of 5-7 METS (at worst); and left ventricular ejection fraction of 40-45 (at worst).

4. The Veteran's right ankle disability is productive of some pain in range of motion. A marked degree of impairment and ankylosis of the ankle are not demonstrated. 
  

CONCLUSIONS OF LAW

1. The legal criteria for an effective date prior to June 12, 1997, for the grant of service connection for rheumatic heart disease have not been met.  38 U.S.C.A. §§ 5110, 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.400, 20.302, 20.1103 (2012); Rudd v. Nicholson, 20 Vet. App. 296 (2006).

2. The criteria for a rating in excess of 60 percent for rheumatic heart disease are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.104 Diagnostic Code (DC) 7000 (2012).

3. The criteria for a rating in excess of 10 percent for residual nondisplaced fracture of the right fibula are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.20, 4.40, 4.45, 4.59, 4.71a Diagnostic Code (DC) 5271 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist a claimant in the development of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012).

The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing.  38 C.F.R. § 3.159(b) (2012).  

In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO).  Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  See Pelegrini, 18 Vet. App. at 121.

In this case, in a May 2007 letter issued prior to the decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claims for increased ratings, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. However, the notice letter did not contain an explanation of the general rating criteria relevant to his heart and right ankle disabilities. 

A November 2008 letter and the August 2009 statement of the case (SOC) set forth applicable criteria for higher ratings for the heart and right ankle disabilities.  After issuance of the November 2008 letter and the August 2009 SOC, and opportunity for the Veteran to respond, the November 2012 supplemental SOC (SSOC) reflects readjudication of the claims.  Hence, the Veteran is not shown to be prejudiced by the timing of the latter notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect).

The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran.  Specifically, the information and evidence that have been associated with the claims file (including the Virtual VA electronic claims) include VA treatment records and examination reports.    

The VCAA provisions have been considered and complied with.  The Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence.  

The Veteran was an active participant in the claims process by providing evidence and argument and presenting for VA examinations.  Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so.  Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran.  

Therefore, any such error is harmless and does not prohibit consideration of these matters on the merits.  See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).


Effective Date

Unless otherwise specified, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase is to be fixed in accordance with the facts found, but will not be earlier than the date of receipt of the claimant's application. 38 U.S.C.A. § 5110(a), (b); 38 C.F.R. § 3.400.  

The effective date is the date of receipt of claim or the date entitlement arose, whichever is later. However, if the claim is received within one year of separation from service, the effective date will be the day following the date of separation from service.  38 C.F.R. § 3.400(b)(2).  

A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA.  38 U.S.C.A. § 5101(a)). 38 C.F.R. § 3.155 provides that any communication or action indicating intent to apply for one or more VA benefits may be considered an informal claim. Such an informal claim must identify the benefit sought. 38 C.F.R. § 3.1(p) defines application as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See also Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999).  

The original claim for compensation, VA Form 21-526 was received on June 12, 1997. Effectuating a November 2005 Board decision granting service connection, the RO, in an April 2006 rating action, assigned a 60 percent rating for the service-connected rheumatic heart disease effective June 12, 1997. He was notified of the decision by a letter (sent to his address of record) dated August 8, 2006. The Veteran did not appeal this decision.  He filed his present claim in October 2008, asserting that he should be awarded such benefit as of 1980.  

The Veteran has contested the assignment of an effective date for the grant of service connection for rheumatic heart disease.  The appeal lacks legal merit.  By way of background, the original claim for compensation was received on June 12, 1997.  Generally, an effective date is no earlier than the date of claim; however, exceptions may apply.  One exception is that an earlier effective date may be assigned if the claim is received within one year of date of discharge.  Here, the claim was received more than one year after separation from service.  Therefore, section 5110(a) rather than 38 U.S.C.A. § 5110(b) was applicable.  Regardless, of the historical background, there is a controlling basis for denying the appeal.  The effective date was assigned in an April 2006 rating decision.  The Veteran did not appeal and that decision is final.  He may not now challenge the effective date as that would be tantamount to a freestanding claim for an earlier effective date. Case law emphasizes that once there is a relevant final decision on an issue, there cannot be a "freestanding claim" for an earlier effective date.  Rudd v. Nicholson, 20 Vet. App. 296 (2006); see Andrews v. Nicholson, 421 F.3d 1278 (Fed. Cir. 2005); Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002) (en banc); see also Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005). 

Thus, the Veteran is precluded from receiving an effective date earlier than June 12, 1997, for the grant of service connection for rheumatic heart disease. The Court has held that in a case where the law, as opposed to the facts, is dispositive of the claim, the claim should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law).





Increased Ratings

Laws and Regulations

Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  The Veteran's entire history is to be considered when making disability evaluations.  See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  

The Court has held that "staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12Vet. App 119 (1999).  Here the disability has not significantly changed and a uniform evaluation is warranted.

The Board notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45 (2010); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995).  The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion.  See Johnson v. Brown, 9 Vet. App. 7 (1996).

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7. 



Rheumatic Heart Disease

The rating for the Veteran's rheumatic heart disease was originally assigned pursuant to diagnostic code (DC) 7000. See 38 C.F.R. § 4.104. A 60 percent evaluation is in order for valvular heart disease (including rheumatic heart disease) resulting in more than one episode of acute congestive heart failure in the past year, or; workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent.  

A 100 percent evaluation is in order for valvular heart disease (including rheumatic heart disease) resulting in chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. A 100 percent evaluation is also assigned during active infection with valvular heart damage and for three months following cessation of therapy for the active infection.

Beginning with the January 2009 rating decision, the RO recharacterized the Veteran's heart disability as rheumatic heart disease status post mitral valve replacement and assigned the rating pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7000-7016. Pursuant to 38 C.F.R. § 4.27, hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen.

Pertinent to this appeal, in a March 2013 rating decision, the RO granted a temporary total (100 percent) evaluation for the rheumatic heart disease status post mitral valve replacement effective from June 17, 2012 until October 31, 2012 for the heart disability that required hospital treatment and convalescence. The 60 percent evaluation was resumed beginning November 1, 2012. Accordingly, the Board's discussion regarding entitlement to increased evaluation will exclude the period from June 17, 2012 to October 31, 2012. 

In any event, under Diagnostic Code 7016, a 60 percent rating is assigned for heart valve replacement that results in more than one episode of acute congestive heart failure in the past year, or; workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent.

A 100 percent evaluation is in order for heart valve replacement that results in chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent.   

Analysis

In this case, the Board concludes that the symptoms of the Veteran's rheumatic heart disease status post mitral valve replacement (exclusive of the period from June 17, 2012 to October 31, 2012) do not warrant assignment of a rating in excess of 60 percent.

The July 2008 report of VA fee-basis examination reflects the Veteran's report that he had experienced shortness of breath and fatigue associated with his heart disability. He had no angina, dizziness, and syncope attacks. He reported that his symptoms occurred intermittently (as often as once per month) and lasted for one full day at each occurrence. He reported that he had experienced 10 attacks in the past year. During flare-ups, he had some limitation in exertion. He reported no congestive heart failure or history of heart attacks. He had heart valve replacement done in 1996 and his current treatment consisted of Felodipine, Benazepril, Metoprolol and ASA. His symptoms were responsive to his medication and he had no side effects.

Objective heart findings showed "mild II/VI diastolic murmur heard at left sternal border. Examination did not reveal any evidence of congestive heart failure, cardiomegaly or cor pulmonale. Stress test was not performed because echocardiogram was more appropriate to evaluate the heart valves. EKG was within normal limits. "An echo was conducted and the ejection fraction of the left ventricle is 0%." The Veteran's Mets level was between 7-9 METs because he was able to achieve the following activities; climbing stairs (moderate speed), rowing machine and sawing wood. Chest x-ray results showed evidence of mitral valve replacement; mild uncoiling of the aorta; and, no active pulmonary disease.

Results of a February 2011 Echo reflect that the left ventricular chamber size was mildly dilated; the estimated ejection fraction was 40-45 percent; there was severe aortic regurgitation; a bio-prosthetic pericardial mitral valve was present; the mean gradient across the mitral valve was 11.5 mmHg. The Veteran was referred to the emergency room and it was indicated that a transesophageal echocardiogram should be considered if indicated for further evaluation.

A Follow-up February 2011 VA treatment record reflects, in pertinent part, that the Veteran had mildly decreased left ventricular structure and systolic function with an estimated ejection fraction of 50 percent.

The March 2013 report of VA fee-basis examination reflects the Veteran's report that he experiences symptoms of heart disease once per day lasting 18 hours in duration. He underwent valve replacement in 1997 with revision in 2012. He reports that his heart disability has gotten worse since the operation in 2012. He reported that he experienced shortness of breath and fatigue.

The examiner indicated that the Veteran had a history of congestive heart failure and had experienced more than one episodes of acute congestive heart failure in the past year (most recently in July 2012). However, the Veteran did not have chronic congestive heart failure. It was indicated that the Veteran had cardiac arrhythmia classified as intermittent atrial flutter. Also documented was the Veteran's history of valve replacement.

Objectively, the Veteran's heart rate was 60; rhythm was regular; and heart sounds were normal. Echocardiogram showed evidence of cardiac hypertrophy (mild left ventricular hypertrophy) and left ventricular ejection fraction of 67 percent. There was no evidence of cardiac dilatation. EKG showed normal sinus rhythm and prolonged pulse rate consistent with first degree AV block. Chest x-ray showed evidence of prior surgery and uncoiled tortuous aorta. The Veteran's METs level was estimated at greater 5-7 METs (consistent with activities such as walking 1 flight of stairs, golfing (without cart), mowing lawn (push mower), heavy yard work (digging)) and resulted in dyspnea and fatigue.

In order to warrant a 100 percent evaluation there must be evidence of chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent.

Based on the above, the Board finds that the criteria have not been met for a rating in excess of 60 percent for rheumatic heart disease status post valve replacement. In this regard, the Board notes that the Veteran's heart disability has resulted in more than one episode of acute congestive heart failure in the past year. However, his demonstrated workload has been shown to be between 7-9 METs (July 2008) and between 5-7 METs (March 2013) resulting in dyspnea and fatigue only. Additionally, left ventricular ejection fraction was shown to be between 40-45 percent, at worst.

There is no objective evidence of chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. The Board is aware that the July 2008 report of VA fee-basis examination reflects that "an echo was conducted and the ejection fraction of the left ventricle is 0%." However, the Board also notes that the examination reflects that there was no evidence of congestive heart failure, cardiomegaly or cor pulmonale; EKG was within normal limits.; the Veteran's Mets level was between 7-9 METs; and, chest x-ray results showed evidence of mitral valve replacement; mild uncoiling of the aorta; and, no active pulmonary disease. Thus, the Board concludes that in reading the examination report as a whole in the context of all the evidence of record, this documentation of ejection fraction of the left ventricle of 0 percent is a typographical error. Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012).

The Board has also considered the Veteran's assertions as to the severity of his symptoms; however, the Board finds the objective medical evidence to be more probative than his lay assertions in determining that his rheumatic heart disease does not meet the criteria for a rating in excess of 60 percent. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  Here, despite the Veteran's complaints as to the severity of his symptoms, the more credible and probative evidence established that he does not have chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent.

For all the foregoing reasons, the Board finds that a rating in excess of 60 percent for rheumatic heart disease is not warranted at any time pertinent to this appeal.  

Right Ankle

The rating for the Veteran's residual nondisplaced fracture of the right fibula has been assigned pursuant to diagnostic code (DC) 5271. Under DC 5271, a 10 percent rating is assigned for limited motion of the ankle of a moderate degree. A 20 percent contemplates limited motion of the ankle of a marked degree. 38 C.F.R. § 4.71a. 

Analysis

In this case, the Board concludes that the symptoms of the Veteran's nondisplaced fracture of the right fibula do not warrant assignment of a rating in excess of 10 percent.  

The July 2008 report of VA fee-basis examination reflects the Veteran's complaint of constant aching pain located at the right shin/ankle. The pain was elicited by physical activity and relieved by rest and medication (Vicodin). He also reported stiffness, swelling and lack of endurance in the right ankle. He did not experience any functional impairment due to this disability.

Objectively, he had full range of motion (20 degrees of dorsiflexion; 45 degrees of plantar flexion) with pain occurring at 15 degrees of dorsiflexion and 40 degrees of plantar flexion. X-ray report showed mild cortical thickening of the distal dorsal cortex of the tibia, most likely from old trauma and small posterior calcaneal spur on the right ankle.

The March 2013 report of VA fee-basis examination reflects the Veteran's complaint of right ankle instability.

Objectively, he had full range of motion (20 degrees of dorsiflexion; 45 degrees of plantar flexion) with objective evidence of painful motion occurring at 10 degrees of dorsiflexion and 35 degrees of plantar flexion. Following repetitive testing he had plantar flexion to 35 degrees and dorsiflexion to 10 degrees. Functional impairment associated with the right ankle disability included less movement than normal, pain on movement and interference with sitting, standing or weight bearing. There was no evidence of ankylosis. The Veteran did not have laxity with anterior drawer test; however, he did demonstrate laxity with talar tilt test. The Veteran had no other disability associated with the right ankle.

Based on the above, the Board finds that the criteria have not been met for a rating in excess of 10 percent for the right ankle disability. In this regard, the Board notes that the evidence reflects that the Veteran's right ankle disability has not resulted in limited motion of the ankle of a marked degree. Rather, the evidence shows that he has objective evidence of painful motion, appropriately contemplated by the assigned 10 percent rating. 38 C.F.R. § 4.59. Ankylosis, malunion of the Os calcis or astragalus, or astragalectomy are not demonstrated; thus, a rating in excess of 10 percent under those diagnostic codes is not warranted.

The Board has also considered the Veteran's assertions as to the severity of his symptoms; however, the Board finds the objective medical evidence to be more probative than his lay assertions in determining that his right ankle disability does not meet the criteria for a rating in excess of 10 percent. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran is competent to report that he has pain on use, limited motion and instability. Further, examination discloses that he demonstrates laxity with talar tilt test; however, objective examination does not disclose ankle disability of a marked degree of impairment and is thus far more credible and probative than his assertions in support of a claim for benefits.  

For all the foregoing reasons, the Board finds that a rating in excess of 10 percent for the residual nondisplaced fracture of the right fibula is not warranted at any time pertinent to this appeal.  

Extra-schedular Consideration

The above determinations are based on application of pertinent provisions of VA's rating schedule.  Additionally, the Board finds that at no point have the disabilities been shown to be so exceptional or unusual as to warrant the assignment of any higher ratings on an extra-schedular basis.  See 38 C.F.R. § 3.321.

Consideration of referral for an extraschedular rating requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. at 115. 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. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. 

The discussion above reflects that the symptoms and effects of the Veteran's heart and right ankle disabilities are fully contemplated by the applicable rating criteria. The Board's analysis above reflects that the symptoms, effects, and overall disability picture from the Veteran's heart and right ankle disabilities is contemplated by the 60 percent and 10 percent ratings, which take account of both the individual symptoms and the overall impairment caused by the heart and right ankle disabilities. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required. In any event, the above evidence reflects that the effects of the heart and right ankle disabilities on the Veteran's employment did not constitute marked interference with employment, i.e., beyond that contemplated by the assigned noncompensable rating. See 38 C.F.R. § 4.1 ("Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability"). Moreover, there is no evidence of frequent hospitalization, or indication that the Veteran's symptoms have otherwise rendered impractical the application of the regular schedular standards. Therefore, referral for consideration of an extraschedular rating for rheumatic heart disease or residual nondisplaced fracture of the right fibula is not warranted. 38 C.F.R. § 3.321(b)(1).

  
ORDER

Entitlement to an effective date earlier than June 12, 1997, for the grant of service connection for rheumatic heart disease is denied.

Entitlement to a rating in excess of 60 percent for rheumatic heart disease is denied.

Entitlement to a rating in excess of 10 percent for residual nondisplaced fracture of the right fibula is denied.


____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs