Citation Nr: A21017241 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 191203-50897 DATE: October 25, 2021 ORDER Entitlement to a disability evaluation in excess of 10 percent for healed fracture of the right distal tibia-fibula with swelling is denied. Entitlement to a compensable disability evaluation for status post umbilical hernia repair is denied. Entitlement to a compensable disability evaluation for residual scar, status post distal tibia-fibula surgery, is denied. Entitlement to a compensable disability evaluation for residual scar, status post umbilical hernia repair, is denied. FINDINGS OF FACT 1. The Veteran's healed fracture of the right distal tibia-fibula with swelling is manifested by right lower leg pain with no evidence of diminished range of motion or instability. 2. The Veteran's status post umbilical hernia repair is not productive of recurrent hernia and does not require treatment with a truss or belt. 3. The Veteran's residual scar, status post distal tibia-fibula surgery, is not painful, not unstable, and does not have a total area of equal to or greater than 39 square centimeters. 4. The Veteran's residual scar, status post umbilical hernia repair, is not painful, not unstable, and does not have a total area of equal to or greater than 39 square centimeters. CONCLUSIONS OF LAW 1. The criteria for a disability evaluation in excess of 10 percent for healed fracture of the right distal tibia-fibula with swelling have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. 2. The criteria for a compensable disability evaluation for status post umbilical hernia repair have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.114, Diagnostic Code 7338. 3. The criteria for a compensable disability evaluation for residual scar, status post distal tibia-fibula surgery, have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.118, Diagnostic Codes 7800-7805. 4. The criteria for a compensable disability evaluation for residual scar, status post umbilical hernia repair, have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.118, Diagnostic Codes 7800-7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 2002 to November 2006. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2019 Rating Decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). By way of history, in November 2018, the Veteran submitted a Supplemental Claim seeking entitlement to increased ratings for healed fracture right distal tibia-fibula with residual scar, residual scar status post surgery distal tibia fibula, status post umbilical hernia repair with residual scar, and residual scar status post umbilical hernia repair. The RO denied these claims in an October 2019 Rating Decision. On December 3, 2019, the Veteran submitted a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), in response to the October 2019 Rating Decision, appealing the issues of entitlement to increased evaluations for healed fracture of the right distal tibia-fibula with swelling; status post umbilical hernia repair; residual scar, status post distal tibia-fibula surgery; and residual scar, status post umbilical hernia repair. The Veteran elected the Hearing docket at that time. In correspondence dated in January 2020, the Board notified the Veteran that his appeal with respect to these issues had been placed on the Hearing docket. However, in correspondence dated on December 4, 2020, the Veteran withdrew his request for a hearing and requested 90 days to submit evidence. 38 C.F.R. §§ 20.302, 20.704(e). Thus, the evidence for consideration is the evidence of record at the time of the Agency of Original Jurisdiction's (AOJ) October 2019 Rating Decision on the issues on appeal, as well as evidence received within 90 days following receipt of the requested hearing withdrawal (i.e., 90 days from December 4, 2020, which is March 4, 2021). 38 C.F.R. § 20.302(b). Evidence received from the notification of the Rating Decision on appeal (October 11, 2019) to the date of withdrawal of the hearing request (December 4, 2020) may not be considered. Here, evidence was added to the claims file during a period of time when new evidence was not allowed. The Board may not consider this evidence in its decision. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, then VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Most recently, on December 17, 2010, the Veteran submitted another VA Form 10182 in which he appealed April 2020 claims denied in an October 2020 Rating Decision, to include entitlement to service connection for a back injury, cervical strain, diabetes mellitus, and sleep apnea; entitlement to a temporary 100 percent evaluation based on a service-connected disability requiring hospital treatment or observation; entitlement to a temporary 100 percent evaluation based on surgery necessitating at least one month of convalescence for a service-connected disability; as well as increased ratings for healed fracture right distal tibia-fibula with residual scar, residual scar status post surgery distal tibia fibula, status post umbilical hernia repair with residual scar, and residual scar status post umbilical hernia repair. The Veteran elected to pursue these claims through the Hearing docket. This request was approved by the Board in September 2021. See 38 C.F.R. § 20.202(c). Pursuant to this statutory framework involving the Hearing docket, those issues will not be discussed further in this decision. The Board further notes that the Veteran is also pursuing a claim of entitlement to an increased disability evaluation for posttraumatic stress disorder (PTSD), with insomnia including traumatic brain injury, which is currently pending in the Legacy Appeal system and will be addressed in a separate Board decision, if otherwise in order. Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, and 5126 (2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2018); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Here, neither the Veteran nor his attorney has raised any issues with regard to the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Board acknowledges that the Veteran was not provided with VA examinations to assess the severity of the various service-connected disabilities on appeal prior to issuance of the October 2019 Rating Decision. However, the record reflects that the Veteran failed to report to scheduled examinations intended to assess the severity of his service-connected disabilities prior to the October 2019 Rating Decision. The Veteran has not alleged that he received inadequate notice of these scheduled examinations or provided good cause for not attending these examinations. When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655 (b). When the examination was scheduled in conjunction with any other original claim, a supplemental claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. Id. A claim for a total disability rating on the basis of individual unemployability due to service-connected disabilities (TDIU) is part and parcel of an increased rating claim where a claimant asserts or the record reflects that his service-connected disabilities prevent him from working. See Rice v. Shinseki, 22 Vet. App. 447, 454-55 (2009). Here, the record does not reflect that the Veteran is unable to find or maintain gainful employment due to service-connected disabilities. Rather, the record reflects that he has been employed as a firearms instructor for at least nine years. As such, a TDIU claim is not inferred from the increased rating claims currently before the Board. Increased Rating Claims A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Fenderson v. West, 12 Vet. App. 119, 12627 (1999). However, separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The Board notes that the guidance provided by DeLuca must be followed in adjudicating claims where a rating under the diagnostic codes governing limitation of motion should be considered. However, pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (holding that pain alone does not constitute function loss but is just one fact to be considered when evaluating functional impairment). Entitlement to a disability evaluation in excess of 10 percent for healed fracture of the Right distal tibia-fibula with swelling from November 19, 2018, to October 11, 2019. The Veteran seeks entitlement to a higher evaluation for his disability of the right distal tibia-fibula. This disability has been evaluated as 10 percent disabling pursuant to Diagnostic Code 5260. Pursuant to Diagnostic Code 5003, degenerative arthritis established by X-ray findings will be rated based on limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. When, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is warranted if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent evaluation is authorized if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a. Limitation of flexion of the leg is rated under Diagnostic Code 5260. A noncompensable rating will be assigned for limitation of flexion of the leg to 60 degrees; a 10 percent rating will be assigned for limitation of flexion of the leg to 45 degrees; a 20 percent rating will be assigned for limitation of flexion of the leg to 30 degrees; and a 30 percent rating will be assigned for limitation of flexion of the leg to 15 degrees. Id. Limitation of extension of the leg is rated under Diagnostic Code 5261. A noncompensable rating will be assigned for limitation of extension of the leg to 5 degrees; a 10 percent rating will be assigned for limitation of extension of the leg to 10 degrees; a 20 percent rating will be assigned for limitation of extension of the leg to 15 degrees; a 30 percent rating will be assigned for limitation of extension of the leg to 20 degrees; a 40 percent rating will be assigned for limitation of extension of the leg to 30 degrees; and a 50 percent rating will be assigned for limitation of extension of the leg to 45 degrees. Id. Normal range of motion of the knee is from zero degrees of extension to 140 degrees of flexion. Id., Plate II. Here, prior to filing his increased evaluation claim in November 2018, the Veteran was last provided with a VA Knee and Lower Leg Conditions examination in February 2017, at which time he was diagnosed as having healed fracture, right distal tibia-fibula with scar. Subjectively, the Veteran reported right lower leg pain. Objective testing revealed normal range of motion in the right knee, from 140 degrees flexion to zero degrees extension. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue, pain with weight bearing, or crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions, and there was no additional loss of function or range of motion after three repetitions. Although the Veteran was not being examined immediately after repetitive use over time and the examination was not being conducted during a flare up, it was neither medically consistent or inconsistent with the Veteran's statements describing functional loss after repetitive use or during flare ups. There were no additional contributing factors of disability. Muscle strength testing revealed normal strength, and there was no evidence of muscle atrophy or ankylosis. There was no history of recurrent subluxation, lateral instability, or recurrent effusion. Joint stability testing revealed normal anterior instability (Lachman test), posterior instability (posterior drawer test), medial instability, and lateral instability. There was no evidence of recurrent patellar dislocation, "shin splints" (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome or any other tibial or fibular impairment. Similarly, the Veteran never had a meniscus (semilunar cartilage) condition. The examiner concluded that the Veteran's right distal tibia-fibula disability did not impact his ability to perform any type of occupational task. Finally, the examiner indicated that there was no pain on non-weight bearing, no pain in either joint on passive range of motion testing, and that passive range of motion was unchanged from range of motion in the active state. VA treatment records (dated up to April 2019) added to the record during the period on appeal listed "fracture, tibia shaft" among the Veteran's problems. However, no range of motion testing or joint stability testing was performed. Based on review of the record, the Board finds that an evaluation in excess of 10 percent for the Veteran's right distal tibia-fibula disability is not warranted for any portion of the period on appeal. The relevant evidence reflects that the Veteran's right distal tibia-fibula disability manifested in painful but noncompensable limitation of motion, which warrants the minimal compensable (10 percent) rating under Diagnostic Code 5260 pursuant to 38 C.F.R. § 4.59. However, the evidence also reflects that the Veteran's right knee flexion was normal (to 140 degrees), even after repetitive motion. This limitation of flexion is consistent with the criteria for a noncompensable disability rating under Diagnostic Code 5260; therefore, a rating in excess of 10 percent under Diagnostic Code 5260 is not warranted. Although the Veteran's disability pertains to his tibia and fibula, there is no evidence of malunion or nonunion of the tibia and fibula to warrant a compensable evaluation under Diagnostic Code 5262. The Board also considered the remaining diagnostic codes relating to the knee and lower extremities; however, they are not applicable to the Veteran's case. Upon review of the claims file, the record does not demonstrate evidence of ankylosis of the knee (Diagnostic Code 5256); lateral instability or recurrent subluxation (Diagnostic Code 5257); meniscal conditions (Diagnostic Codes 5258 and 5259); limitation of extension (Diagnostic Code 5261); or genu recurvatum (Diagnostic Code 5263). As such, the Board finds that a higher or separate rating for the right knee is not warranted under any of these Diagnostic Codes. In summary, the Board herein denies entitlement to a rating in excess of 10 percent for a right distal tibia-fibula disability under Diagnostic Code 5260 for the entire period on appeal. The Board notes that the benefit of the doubt has been applied, where applicable. Entitlement to a compensable disability evaluation for status post umbilical hernia repair from November 19, 2018, to October 11, 2019. The Veteran also seeks entitlement to a compensable disability evaluation for his service-connected status post umbilical hernia repair, which has been evaluated under Diagnostic Code 7338. Under Diagnostic Code 7338, a noncompensable disability rating is assigned for a small hernia, reducible, or without true protrusion; or for a hernia that is not operated but remedial. A 10 percent disability rating is assigned for a postoperative recurrent, readily reducible hernia, and well supported by truss or belt. A 30 percent disability rating is assigned for small, postoperative recurrent, or unoperated irremediable hernia, not well supported by truss, or not readily reducible. A 60 percent disability rating is assigned for large, postoperative, recurrent hernia, not well supported under ordinary conditions and not readily reducible, when considered inoperable. 38 C.F.R. § 4.114, Diagnostic Code 7338. Here, prior to filing his increased evaluation claim in November 2018, the Veteran was last provided with a VA Hernia examination in February 2017, at which time he was diagnosed as having an umbilical hernia. The examiner noted that although the Veteran had gradually developed an umbilical hernia, the condition had since resolved following a 2005 umbilical hernia repair. Upon objective examination, no hernia was detected, and there was no indication for a supporting belt. There were no other pertinent physical findings, complications, conditions, signs, or symptoms related to the umbilical hernia diagnosis. VA treatment records (dated up to April 2019) added to the record during the period on appeal did not include any hernia-related symptomatology. The Board finds the weight of the competent and probative evidence is against finding the Veteran's status post umbilical hernia repair is productive of recurrent hernia or requires treatment with a truss or belt. The medical evidence demonstrates a lack of recurrent hernia or the need for a supporting truss or belt. The Board, accordingly, finds an initial compensable rating for the Veteran's service-connected status post umbilical hernia repair is not warranted. All possibly applicable diagnostic codes have been considered, but the Veteran could not receive higher and/or additional evaluations for his umbilical hernia based on the evidence of record. See 38 C.F.R. § 4.114. The Board notes that the benefit of the doubt has been applied, where applicable. Entitlement to a compensable evaluations for residual scar, status post distal tibia-fibula surgery, and residual scar, status post umbilical hernia repair from November 19, 2018, to October 11, 2019. The Veteran also seeks entitlement to compensable disability evaluations for residual scar, status post distal tibia-fibula surgery, as well as residual scar, status post umbilical hernia repair, both of which have been rated pursuant to Diagnostic Code 7805. Under Diagnostic Code 7802, scars not of the head, face, or neck, that are not associated with underlying soft tissue damage are assigned a rating of 10 percent with area or areas of 144 square inches (929 square centimeters) or greater. Under Diagnostic Code 7804, scars that are unstable or painful can be assigned a rating of 30 percent with five or more scars that are unstable or painful. A rating of 20 percent requires three or four scars that are unstable or painful. A rating of 10 percent requires one or two scars that are unstable or painful. Note (1): An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2): If one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note (3): Scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable. Under Diagnostic Code 7805, scars, other (including linear scars) and other effects of scars evaluated under diagnostic codes 7800, 7801, 7802, and 7804, are evaluated on the basis of any disabling effects not considered in a rating provided under Diagnostic Codes 7800-7804 under an appropriate diagnostic code. Here, prior to filing his increased evaluation claim in November 2018, the Veteran was last provided with a VA Scars/Disfigurement examination in February 2017, at which time he was diagnosed as having an umbilical hernia repair scar as well as an open reduction and internal fixation (ORIF) right lower leg scar. Neither scar was painful or unstable with frequent loss of covering of skin over the scar. Neither scar was due to burns. The umbilical hernia repair scar was located on the anterior trunk, and was a superficial non-linear scar measuring 4 centimeters by 1 centimeter (with an approximate total area of 4 square centimeters). The ORIF right lower leg scar was located on the right lower extremity and was a superficial non-linear scar measuring 6 centimeters by 1 centimeter (with an approximate total area of 6 square centimeters). There was no evidence of deep non-linear scars. Similarly, the report of the February 2017 VA Knee Conditions examination indicated that the Veteran's ORIF right lower leg scar was not painful or unstable; did not have a total area equal to or greater than 39 square centimeters (6 square inches); and was not located on the head, face, or neck. Likewise, the report of the February 2017 VA Hernia examination indicated that the Veteran's umbilical hernia repair scar was not painful or unstable; did not have a total area equal to or greater than 39 square centimeters (6 square inches); and was not located on the head, face, or neck. VA treatment records (dated up to April 2019) added to the record during the period on appeal did not include any scar-related symptomatology. In sum, the Veteran's service-connected umbilical hernia repair scar and ORIF right lower leg scar have not been shown to be painful, unstable, deep, nonlinear, or exceeding an area of 39 square centimeters. Based on the foregoing, the Board finds that compensable ratings for umbilical hernia repair scar and ORIF right lower leg scar are not warranted under any of the applicable Diagnostic Codes during the appeal period. The Board notes that the benefit of the doubt has been applied, where applicable. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Anthony M. Flamini The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.