Citation Nr: 0000178 Decision Date: 01/05/00 Archive Date: 12/28/01 DOCKET NO. 98-02 009 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for pulmonary tuberculosis. 2. Entitlement to service connection for a right ulnar nerve injury. 3. Entitlement to service connection for left eye nevus. 4. Entitlement to service connection for a left ankle injury. 5. Entitlement to an evaluation in excess of 10 percent for deflection of the nasal septum. 6. Entitlement to a compensable evaluation for a right ankle injury. 7. Entitlement to an effective date prior to January 28, 1997 for the grant of entitlement to service connection for deflection of the nasal septum and for a right ankle injury. 8. Whether recoupment of disability compensation to offset separation pay of $11,094.53 is proper. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. M. Fogarty, Associate Counsel INTRODUCTION The veteran served on active duty from July 1981 to May 1986 and from June 1986 to November 1990. This matter is before the Board of Veterans' Appeals (Board) on appeal of an August 1997 rating decision from the Department of Veterans Affairs (VA) Los Angeles, California Regional Office (RO). The Board notes that in his January 1998 substantive appeal, the veteran raised the issue of entitlement to service connection for plantar warts. This issue has not been addressed by the RO, therefore it is referred to the RO for appropriate consideration. FINDINGS OF FACT 1. Competent medical evidence of a current diagnosis of pulmonary tuberculosis or of a nexus between pulmonary tuberculosis and an incident of service has not been presented. 2. Competent medical evidence of a nexus between the veteran's right ulnar nerve injury and an incident of service has not been presented. 3. Competent medical evidence of a nexus between the veteran's left eye nevus and an incident of service has not been presented. 4. Competent medical evidence of a current diagnosis of a left ankle injury or of a nexus between a left ankle injury and an incident of service has not been presented. 5. The veteran's deflected nasal septum is manifested by slight deviation to the left, enlarged turbinates, increased scar tissue along the floor of the nose, greater on the left than the right, and minimal collapse of the nasal alae with quiet inspiration. 6. The veteran's right ankle injury is manifested by no more than moderate limitation of motion. 7. On January 28, 1997, the RO received the veteran's claim of entitlement to service connection for deflection of the nasal septum and for a right ankle injury. 8. In an August 1997 rating decision, the RO granted entitlement to service connection for deflection of the nasal septum and for a right ankle injury. 9. The veteran served on active duty in the United States Air Force from July 1981 to May 1986 and from June 1986 to November 1990. 10. The veteran received $11,094.53 in separation pay upon his discharge from service. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for pulmonary tuberculosis is not well grounded. 38 U.S.C.A. § 5107 (West 1991). 2. The claim of entitlement to service connection for a right ulnar nerve injury is not well grounded. 38 U.S.C.A. § 5107 (West 1991). 3. The claim of entitlement to service connection for left eye nevus is not well grounded. 38 U.S.C.A. § 5107 (West 1991). 4. The claim of entitlement to service connection for a left ankle injury is not well grounded. 38 U.S.C.A. § 5107 (West 1991). 5. The criteria for an evaluation in excess of 10 percent for deflection of the nasal septum have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.97, Diagnostic Codes 6502, 6510-6514, 6522 (1999). 6. A 10 percent evaluation is warranted for a right ankle injury. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a Diagnostic Code 5271 (1999). 7. An effective date prior to January 28, 1997 for the grant of entitlement to service connection for deflection of the nasal septum and for a right ankle injury is not warranted. 38 U.S.C.A. §§ 5107, 5110, 7105 (West 1991); 38 C.F.R. § 3.104, 3.155, 3.400 (1999). 8. The veteran's VA disability compensation is properly subject to recoupment of separation pay that he received when discharged from service. 10 U.S.C.A. § 1174 (West 1991); 38 C.F.R. § 3.700 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background Service medical records reflect that upon enlistment examination dated in May 1981, the veteran's systems were clinically evaluated as normal. Clinical records reflect various impressions of upper respiratory infections, bronchitis, right ankle crepitus, a right foot contusion, tendon scarring on the right ankle, viral infection, headaches secondary to anxiety, mild pharyngitis, right hip pain, viral syndrome, scalp laceration, left Achilles tendonitis, sinusitis, mild right Achilles tendonitis, chicken pox, left knee strain, plantar warts, conjunctivitis, and a right finger laceration. Excessive refractive error and slight nasal septal deviation to the right were also noted. Clinical records dated in May 1987 reflect the veteran underwent a nasal septorhinoplasty, and a discharge summary noted a history of three nasal fractures, the last being in 1982. Service personnel records reflect two outpatient ear, nose and throat appointments in April 1987 and June 1987 as well as one inpatient ear, nose and throat appointment in May 1987. The veteran's service records also reflect that the veteran received separation pay in the amount of $11,094.53. Private medical records dated from July 1993 to January 1997 reflect the veteran underwent nasal septoplasty and partial bilateral anterior turbinectomy in August 1993. Complaints of persistent breathing problems were noted. A private report of neurodiagnostic studies dated in December 1993 reflects an impression of an abnormal nerve conduction velocity demonstrating prolonged distal latencies of both median nerves consistent with definite bilateral carpal tunnel syndrome of moderate degree and swelling of the ulnar nerve across the elbow region consistent with tardy ulnar palsy. It was also noted there was delay of the ulnar nerve at the elbow consistent with a bilateral injury at Guyon's canal, left greater than right. Private medical records dated from May 1994 to November 1995 reflect the veteran received rabies inoculations and a hepatitis B shot. Private medical records dated from 1995 to 1996 reflect complaints of nasal obstruction and right ankle clicking. An assessment of mild ankle instability was noted. A March 1996 allergy test reflects an impression of vasomotor rhinitis, rule out allergic rhinitis with some structural component, possibly due to postoperative scarring. A positive purified protein derivative was noted in August 1995. An October 1995 clinical record reflects an assessment of mild ankle instability which was likely due to muscular weakness and a problem with balance as opposed to anything inherently biochemical. A private medical statement dated in November 1995, reflects the veteran was noted to have a purified protein derivative (PPD) of 30 millimeters in May 1994. A chest x-ray at that time was negative. It was noted that the veteran was believed to not be a recent converter but his previous negative PPD was in 1986. It was also noted that the veteran was apparently healthy at the present time. A private medical statement from Dr. Z. dated in November 1995 reflects that the veteran was examined in July 1993 for a follow-up examination of a November 1992 visit when a choroidal nevus along the supratemporal arcade of his left eye was discovered. It was noted that the examination revealed a flat choroidal nevus, unchanged from a previous examination and photograph. A private medical statement from Dr. K. dated in November 1995 reflects that the veteran was seen in November 1993 for a history of shooting pain in the right arm. It was noted that the injury was sustained during a rugby game while the veteran was on active duty. The physician further noted that the veteran continued to complain of abnormal sensation from the elbow down to the fingers involving the fourth and fifth digits. Decreased sensation and pain were also noted. The physician further noted that the veteran described a dull feeling between the fingers and an excruciating pain which caused him to drop objects if he touched or bumped the elbow area. Finally, it was noted that a December 1993 nerve conduction velocity study identified the injury of the ulnar nerve across the elbow. A private medical statement dated in December 1995 from Dr. R. S. reflects the veteran had been under his care since 1993 for nasal airway obstruction. It was noted that the veteran had difficulty clearing his ears because of his persistent nasal obstruction. It was also noted that an evaluation in 1994 revealed evidence of persistent nasal airway obstruction, manifested primarily by a nasal valve collapse on the left side. The physician noted the veteran was extremely limited regarding exercise and pressure changes and had persistent difficulty related to diving as well as other physical activities. Finally, the physician opined that the veteran's nasal condition was significant and that he was bothered by a nasal obstruction problem that would require further revisional surgery if indicated. A March 1996 private medical statement from Dr. R. K. reflects that the veteran was seen in February 1996 and complained of clicking and popping involving the right ankle. It was noted that the veteran described no significant pain. Physical examination revealed a benign ankle and foot examination with free range of motion and no deformity or tenderness. X-ray examination was noted as normal. A computed tomography scan was noted as essentially unremarkable, revealing only a small fleck of bone noted off the distal fibula. The physician opined that this was unlikely to be causing the veteran's present symptoms. The physician further opined that the etiology of the veteran's symptoms was unclear and no further treatment was indicated. The physician stated that it was unclear as to whether this actually stemmed from a supposed hairline fracture incurred during military service. A private medical statement from Dr. A. S., dated in March 1996, reflects that the veteran had an extremely scarred nose due to multiple surgeries as well as a history of difficulty breathing through his nose. The physician noted that the valve area of the veteran's nose was extremely scarred, as was the septum with a very mild deviation to the right. The physician opined that further surgery on the veteran's nose would not be of any benefit to his breathing abilities because of the extreme scar tissue formation in the area of the valve and may also be detrimental to his breathing abilities. On January 28, 1997, the RO received the veteran's claim of entitlement to service connection for a nose injury, an ulnar nerve injury, an ankle injury, left eye nevus, and tuberculosis. An April 1997 letter from a private physician reflects that examination of the veteran demonstrated mild right septal deflection with 4+ turbinate hypertrophy. It was noted that the turbinates looked as though they had had partial anterior resection, but were still quite obstructive. It was also noted that an audiogram showed a mild high frequency "dip" which might explain his tinnitus. The examiner opined that the veteran would benefit from a submucous resection/excision. Undated private treatment records reflect impressions of blepharospasm by history of the left lower eyelid and chronic nasal obstruction. Upon VA examination of the nose and sinuses dated in May 1997, the veteran complained of nasal airway obstruction, greater on the left than the right. The examiner noted the septum was slightly deviated to the left with enlarged turbinates. The examiner also noted increased scar tissue along the floor of the nose, greater on the left than the right and minimal collapse of the nasal alae with quiet inspiration. Decreased smelling ability secondary to decreased airflow through the nose was also noted. A diagnosis of nasal airway obstruction greater on the left than the right was noted. Upon VA joint examination dated in May 1997, the veteran complained of numbness and tingling from the right forearm to the web of the 4th and 5th digits as well as popping and clicking in the left ankle. Physical examination of the right hand revealed no edema, no atrophy, and normal skin. Physical examination of the left and right ankles revealed no swelling, no deformity, and a negative anterior post drawer sign. Range of motion in the left ankle was noted as 15 degrees medial deviation and 30 degrees lateral deviation. Plantar flexion was to 150 degrees and dorsiflexion was to 80 degrees. Range of motion in the right ankle revealed 20 degrees medial deviation and 20 degrees lateral deviation, as well as 120 degrees plantar flexion and 90 degrees dorsiflexion. The examiner noted no objective abnormal findings were found. Upon VA respiratory examination dated in May 1997, the veteran reported a positive tuberculosis skin test in 1980. A radiology report of the chest revealed a negative impression. The examiner noted no objective findings or impressions. The record reflects uninterpreted eye charts dated in June 1997. In an August 1997 rating decision, the RO granted entitlement to service connection for deflection of the nasal septum, evaluated as 10 percent disabling effective January 28, 1997, and for a right ankle injury, evaluated as noncompensable effective January 28, 1997. At his September 1999 hearing before a member of the Board, the veteran testified that his separation pay was not for his nasal deflection and he had no knowledge that it was for any type of disability. (Transcript, page 4). The veteran stated that he received about $11,000.00 right before he was discharged or around the same time as his discharge. (Transcript, page 5). The veteran also testified that he was entitled to an earlier effective date for the grant of service connection for deflection of the nasal septum and a right ankle injury because his disabilities continued after his discharge from service and he sought treatment at a VA facility in early 1991. (Transcript, pages 6-7). In regard to his nasal condition, the veteran testified that the left nasal passage was completely blocked and that he could not breathe out of his nose normally. The veteran also reported occasional nosebleeds and a lot of discomfort. (Transcript, pages 7-11). The veteran testified that he had been told that he had rhinitis. (Transcript, page 11). The veteran acknowledged that he filed his claims for service connection on January 28, 1997. (Transcript, page 8). In regard to his right ankle, the veteran testified that he had to wear a brace at all times to prevent small bones from breaking. (Transcript, pages 12-13). The veteran stated he would not be able to walk more than three miles without the brace on. The veteran also reported pain upon taking the brace off and after about two hours when wearing the brace. (Transcript, page 13). The veteran stated that his ankle clicked and popped when walking. (Transcript, page 14). In regard to his left ankle, the veteran testified that he injured his left ankle during service while parachute jumping. (Transcript, page 19). The veteran also testified that he had a positive tuberculosis test in 1992 or 1993. The veteran reported that the physician asked him if he had been in Asia, and he stated that he had been in Asia and all over the world. (Transcript, page 21). The veteran testified that his ulnar nerve injury was identified in 1992 or 1993 and that it was service-connected because he fell and bumped his right arm often. The veteran stated that he often thought he had bumped his funny bone and did not seek medical treatment. (Transcript, page 23). The veteran stated he experienced shooting pains between two of his fingers every now and then when the nerve got pinched. (Transcript, page 24). The veteran stated that his left eye nevus was discovered in 1992 or 1993. (Transcript, page 25). II. Analysis Basic entitlement to disability compensation may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 1991). Service connection connotes many factors but basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303(a) (1999). 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) (1999). The threshold question that must be resolved with regard to each claim is whether the appellant has presented evidence that the claim is well grounded; that is, that the claim is plausible. If he has not, his appeal fails as to that claim, and VA is under no duty to assist him in any further development of that claim. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78 (1990). Case law provides that, although a claim need not be conclusive to be well grounded, it must be accompanied by evidence. A claimant must submit supporting evidence that justifies a belief by a fair and impartial individual that the claim is plausible. Dixon v. Derwinski, 3 Vet. App. 261, 262 (1992); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In order for a claim to be well grounded, there must be competent evidence of current disability (a medical diagnosis); of incurrence or aggravation of a disease or injury in service (lay or medical evidence); and of a nexus between the in-service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498 (1995). Where the determinant issue involves a question of medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible or possible is required to establish a well-grounded claim. Lay assertions of medical causation cannot constitute evidence to render a claim well grounded under 38 U.S.C.A. § 5107(a); if no cognizable evidence is submitted to support a claim, the claim cannot be well grounded. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The Board notes that the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") has held that there is a duty to assist a veteran in the completion of his application for benefits under 38 U.S.C.A. § 5103(a) (West 1991), depending on the particular facts in each case. Beausoleil v. Brown, 8 Vet. App. 459 (1996); Robinette v. Brown, 8 Vet. App. 69 (1995). The facts and circumstances of this case are such that no further action is warranted. A. Entitlement to Service Connection for Pulmonary Tuberculosis Following a review of the evidence of record, the Board concludes that entitlement to service connection for pulmonary tuberculosis is not warranted. The veteran's service medical records are silent for complaints, treatment, or diagnoses relevant to pulmonary tuberculosis. The only medical evidence of record relevant to pulmonary tuberculosis is a November 1995 statement from a private physician reflecting that the veteran had a purified protein derivative of 30 millimeters in May 1994 and was treated with six months of isoniazid. The physician noted that the veteran had a negative PPD in 1986 and was apparently healthy at the present time. The claim for service connection for pulmonary tuberculosis is supported solely by the contentions of the veteran. However, the Court has made it clear that a lay party is not competent to provide probative evidence as to matters requiring expertise regarding specialized medical knowledge, skill, training, or education. Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1994). Consequently, the veteran's lay assertion that he contracted pulmonary tuberculosis during his active service is neither competent nor probative of the issue in question. While the veteran is competent to testify regarding the events that are alleged to have occurred during his active service, he is not competent to diagnose or determine the etiology of his own pulmonary tuberculosis, if any. See Cromley v. Brown, 7 Vet. App. 376, 379 (1995); Boeck v. Brown, 6 Vet. App. 14, 16 (1993); Grivois v. Brown, 6 Vet. App. 136, 140 (1994); Fluker v. Brown, 5 Vet. App. 296, 299 (1993); Moray v. Brown, 5 Vet. App. 211, 214 (1993); Cox v. Brown, 5 Vet. App. 93-95 (1993); and Clarkson v. Brown, 4 Vet. App. 565, 657 (1993). In the absence of competent medical evidence of a current diagnosis of pulmonary tuberculosis as well as competent medical evidence of a nexus between pulmonary tuberculosis and an incident of service, the veteran's claim is not well grounded and must be denied. B. Entitlement to Service Connection for a Right Ulnar Nerve Injury Following a review of the evidence of record, the Board concludes that entitlement to service connection for a right ulnar nerve injury is not warranted. Although the November 1995 private medical statement from Dr. T. K. states that the veteran's injury was sustained during a rugby game while on active duty, the veteran's service medical records are silent for any complaints or treatment related a right arm injury. The November 1995 private medical statement does not reflect that the veteran's service medical records were reviewed by the physician. The Court has held that an opinion may be discounted if it materially relies on a layperson's unsupported history as the premise for the opinion. See Wood v. Derwinski, 1 Vet. App. 190, 191, 192 (1991). Additionally, post-service medical records are silent for treatment or complaints related to the right arm until 1993, more than two years after the veteran's discharge from service. As previously noted, the veteran's lay assertion that his right ulnar nerve injury is the result of falls and bumps incurred during service is neither competent or probative of the issue in question. See Espiritu, 2 Vet. App. 494-5. In the absence of competent evidence of a nexus between the veteran's right ulnar nerve injury and an incident of service, the claim is not well grounded and must be denied. C. Entitlement to Service Connection for Left Eye Nevus Following a complete review of the evidence of record, the Board concludes that entitlement to service connection for left eye nevus is not warranted. The veteran's service medical records are silent for treatment, complaints, or diagnoses related to left eye nevus. Although the evidence of record reflects that the veteran currently suffers from left eye nevus, competent medical evidence of a nexus between left eye nevus and an incident of service has not been presented, nor does the evidence reflect that this disorder was diagnosed within one year of the veteran's discharge from active service. As previously noted, the Court has held that where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The record does not reveal that the veteran possesses any medical expertise. Thus, his lay assertions to the effect that his left eye nevus was incurred in or caused by his active service has no probative value. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In the absence of competent medical evidence of a nexus between the veteran's left eye nevus and an incident of service, the claim is not well grounded and must be denied. D. Entitlement to Service Connection for a Left Ankle Injury Following a thorough review of the evidence of record, the Board concludes that entitlement to service connection for a left ankle injury is not warranted. Although service medical records reflect the veteran was treated on two occasions for his left ankle, a May 1997 VA examination of the joints revealed no objective abnormal findings in the left ankle. The veteran's claim of entitlement to service connection for a left ankle injury is supported solely by his own testimony. As previously noted, the veteran is not competent to give a medical diagnosis. See Espiritu, 2 Vet. App. 495-495. Thus, competent medical evidence of a current left ankle disorder has not been presented. In the absence of competent medical evidence of a current left ankle disorder as well as evidence of a nexus between any current left ankle disorder and an incident of service, the veteran's claim is not well grounded and must be denied. E. Entitlement to an Evaluation in Excess of 10 Percent for Deflection of the Nasal Septum Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. § Part 4 (1999). The percentage ratings contained in the Rating Schedule represent, as far as can be 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. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1999). Separate diagnostic codes identify the various disabilities. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon 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). These regulations include 38 C.F.R. §§ 4.1 and 4.2 (1999) which require the evaluation of the complete medical history of the claimant's condition. These regulations operate to protect claimants against adverse decisions based on a single, incomplete, or inaccurate report, and to enable VA to make a more precise evaluation of the level of the disability and of any changes in the condition. Schafrath, 1 Vet. App. at 593-94 (1991). In the instant case, the veteran is technically not seeking an increased rating, since his appeal arises from the original assessment of a disability rating. When a veteran is awarded service connection for a disability and subsequently appeals the initial assessment of a rating for that disability, the claim continues to be well grounded. Fenderson v. West, 12 Vet. App. 119 (1999); Shipwash v. Brown, 8 Vet. App. 218, 224 (1995). In Fenderson, it was held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. Cf. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In that decision, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson v. West, 12 Vet. App. 119 (1999). Deviation of the nasal septum is rated pursuant to 38 C.F.R. § 4.97, Diagnostic Code 6502 (1999). Pursuant to that regulation, traumatic deviation of the nasal septum with 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side warrants a 10 percent evaluation. A 10 percent disability evaluation is the highest rating allowed under 38 C.F.R. § 4.97, Diagnostic Code 6502. In evaluating the veteran's nasal disability, the Board has also considered federal regulation 38 C.F.R. § 4.97, which contains five Diagnostic Codes for various forms of sinusitis, all of which are rated under a General Rating Formula. Under the general rating formula, an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97, Diagnostic Codes 6510-6514 (1999). An evaluation of ten percent is warranted for one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. Three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting warrants a 30 percent evaluation. A 50 percent evaluation is warranted following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. As reflected in the May 1997 VA examination, the veteran's nasal disability is manifested by slight deviation to the left, enlarged turbinates, increased scar tissue along the floor of the nose, greater on the left than the right, and minimal collapse of the nasal alae with quiet inspiration. A diagnosis of nasal airway obstruction greater on the left than the right was noted. Although the evidence reflects that the veteran has an extremely scarred nose due to multiple surgeries, the record is silent for evidence of chronic osteomyelitis, near constant sinusitis characterized by headaches, pain and tenderness of the affected sinus, purulent discharge or crusting after repeated surgeries, three or more incapacitating episodes per year of sinusitis requiring prolonged antibiotic treatment, or more than six non-incapacitating episodes per year of sinusitis characterizes by headaches, pain, and purulent discharge or crusting. Thus, an evaluation in excess of 10 percent under the rating criteria applicable to sinusitis is not warranted. The Board is cognizant of the veteran's testimony that he was told that he has rhinitis. The rating schedule for rhinitis provides for a 10 percent evaluation for allergic or vasomotor rhinitis without polyps but with greater than 50- percent obstruction of nasal passage on both sides or complete obstruction on one side. A 30 percent evaluation is warranted for allergic or vasomotor rhinitis with polyps. See 38 C.F.R. § 4.97, Diagnostic Code 6522 (1999). The record is silent for evidence of allergic or vasomotor rhinitis with polyps. Thus, an evaluation in excess of 10 percent under the rating criteria applicable to rhinitis is not warranted. The Board notes that the percentage ratings under the Schedule are representative of the average impairment in earning capacity resulting from diseases and injuries. 38 C.F.R. § 4.1 (1999) specifically sets out that "[g]enerally, 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." In the present case, there is no evidence the veteran's nasal disability results in marked interference with employment or frequent periods of hospitalization. Accordingly, consideration of 38 C.F.R. § 3.321(b)(1) is not warranted in the absence of an exceptional or unusual disability picture. The Board notes that although the decision herein included consideration of the Court's decision in Fenderson, the veteran has not been prejudiced by such discussion. Case law provides that when the Board addresses in its decision a question that had not been addressed by the RO, it must consider whether the claimant has been given adequate notice of the need to submit evidence or argument on that question and an opportunity to submit such evidence and argument and to address that question at a hearing, and, if not, whether the claimant has been prejudiced thereby. Bernard v. Brown, 4 Vet. App. 384, 392-394 (1993). The Board has also discussed whether extraschedular consideration is warranted in this case. In doing so, the Board has considered all of the evidence, to include service medical records and the records of post-service medical treatment to date. A disability evaluation in excess of 10 percent was denied based on the totality of the evidence, without predominant focus on the recent evidence of record. Such review is consistent with the Court's recent decision in Fenderson. F. Entitlement to a Compensable Evaluation for a Right Ankle Injury Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all of these elements. The functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40 (1999). Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little-used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. See 38 C.F.R. § 4.40. The provisions of 38 C.F.R. §§ 4.45 and 4.59 (1999) contemplate inquiry into whether there is crepitation, limitation of motion, weakness, excess fatigability, incoordination, impaired ability to execute skilled movements smoothly, pain on movement, swelling, deformity, or atrophy of disuse. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing are also related considerations. It is the intention of the rating schedule to recognize actually painful, unstable, or mal-aligned joints, due to healed injury, as at least minimally compensable. See 38 C.F.R. §§ 4.45 and 4.59. In the instant case, the veteran is technically not seeking an increased rating, since his appeal arises from the original assessment of a disability rating. When a veteran is awarded service connection for a disability and subsequently appeals the initial assessment of a rating for that disability, the claim continues to be well grounded. Fenderson v. West, 12 Vet. App. 119 (1999); Shipwash v. Brown, 8 Vet. App. 218, 224 (1995). In Fenderson, it was held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. Cf. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In that decision, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson v. West, 12 Vet. App. 119 (1999). Limitation of motion of the ankle is rated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5271 (1999). Moderate limitation of motion warrants a 10 percent evaluation and marked limitation of motion warrants a 20 percent evaluation. When there is a question as to which of two evaluations should be applied to a disability, 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. 38 C.F.R. § 4.7 (1999). Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (1999). The Court has also held that when a diagnostic code provides for compensation based solely upon limitation of motion, that the provisions of 38 C.F.R. §§ 4.40 and 4.45 (1998) must also be considered, and that examinations upon which the rating decisions are based must adequately portray the extent of functional loss due to pain "on use or due to flare-ups." DeLuca v. Brown, 8 Vet. App. 202 (1995). 38 C.F.R. §§ 4.40 and 4.45 contemplate inquiry into whether there is crepitation, limitation of motion, weakness, excess fatigability, incoordination and impaired ability to execute skilled movement smoothly, and pain on movement, swelling, deformity, or atrophy of disuse. Id. The evidence of record reflects a March 1996 private medical statement noting a benign ankle examination with free range of motion and no deformity or tenderness. A VA joint examination dated in May 1997 showed no swelling or deformity and a negative anterior post drawer sign. Range of motion in the right ankle was noted as 20 degrees medial deviation and 20 degrees lateral deviation with 120 degrees plantar flexion and 90 degrees dorsiflexion. The examiner noted no objective abnormal findings were found. However, at his September 1999 hearing, the veteran testified that he had to wear a brace on his right ankle at all times. The veteran also testified to experiencing pain both with and without the brace and an inability to walk more than three miles. With all reasonable doubt resolved in favor of the veteran and after consideration of 38 C.F.R. §§ 4.40, 4.45, and 4.59, the Board concludes that the veteran's right ankle disability is manifested by no more than moderate limitation of motion. Thus, a 10 percent evaluation is warranted. The Board finds that the evidence of record does not support a finding of marked limitation of motion. The Board notes that although the decision herein included consideration of the Court's decision in Fenderson, the veteran has not been prejudiced by such discussion. Case law provides that when the Board addresses in its decision a question that had not been addressed by the RO, it must consider whether the claimant has been given adequate notice of the need to submit evidence or argument on that question and an opportunity to submit such evidence and argument and to address that question at a hearing, and, if not, whether the claimant has been prejudiced thereby. Bernard v. Brown, 4 Vet. App. 384, 392-394 (1993). As the Board has herein assigned one increase, without specifying effective dates or differentiating between multiple periods, the question of staged ratings has not been decided as prejudicial to the veteran; rather, in this case the Board has determined that none of the evidence of record supports an evaluation higher than that assigned, at any point within the appeal. Accordingly, no prejudice has resulted herein. Bernard, 4 Vet. App. at 392-394 (1993). G. Entitlement to an Effective Date Prior to January 28, 1997, for the Grant of Entitlement to Service Connection for Deflection of the Nasal Septum and for a Right Ankle Injury The applicable law and regulations concerning effective dates state that, except as otherwise provided, 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 will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. 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) (West 1991); 38 C.F.R. § 3.151(a) (1999). A "claim" or "application" is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p) (1999). An informal claim is any communication indicating an intent to apply for one or more benefits. The benefit being sought must be identified. 38 C.F.R. § 3.155 (1999). An informal claim must also be in writing. See Rodriguez v. West, No. 98-7087 (Fed. Cir. August 25, 1999). There is no evidence of record that can be construed as an informal claim for entitlement to service connection for deflection of the nasal septum or a right ankle injury prior to January 28, 1997. Additionally, all of the veteran's treatment records were associated with the claims folder after his original claim was filed. The veteran's testimony that he continued to suffer from these disabilities after discharge from service and that he sought treatment at a VA facility in 1991 is not a basis for granting service connection from an earlier date. At his September 1999 hearing before a member of the Board, the veteran acknowledged that he did not file a written claim with VA prior to January 28, 1997. The Board does not question the veteran's testimony that he suffered from deflection of the nasal septum and a right ankle injury at the time of his discharge from service. However, because the veteran's original claim of entitlement to service connection for deflection of the nasal septum and a right ankle injury was received on January 28, 1997, the effective date of the grant of service connection for deflection of the nasal septum and for a right ankle injury cannot be earlier than January 28, 1997. See 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. As a result, the claim for an earlier effective date must be denied. H. Whether Recoupment of Disability Compensation to Offset Separation Pay of $11,094.53 is Proper The veteran contends that it is inappropriate for VA to recoup the amount of separation pay received upon his discharge from service. The veteran contends that the payment was not for any disability and that if recoupment is allowed, VA should not recoup more than the net amount of the separation pay the veteran retained after paying taxes on that income. The recoupment of the veteran's separation pay from his VA disability compensation is prescribed by Congress at 10 U.S.C. § 1174, and is implemented by VA in 38 C.F.R. § 3.700(a)(5)(i). The language of this regulation mirrors that of the statute and states that "[a] veteran who has received separation pay may receive disability compensation for disability incurred in or aggravated by service prior to the date of receipt of the separation pay subject to recoupment of the total amount received as separation pay." The Board is bound not only by the laws prescribed by Congress, but also by the precedent opinions of VA's Office of General Counsel. 38 U.S.C.A. § 7104(c) (West 1991). An opinion of the VA General Counsel, VAOGCPREC 14-92, 57 Fed. Reg. 49746 (1992), concluded that, "[i]n accordance with the provisions of 10 U.S.C. § 1174 and 38 C.F.R. § 3.700, VA disability compensation should be offset to recoup the amount of special separation benefits received by a former member of the armed forces." The Board notes that the veteran disputes VA's right to recoup the amount that he has paid in taxes to the state and federal governments. However, nowhere in the statutory language is there any suggestion that the amount to be deducted should be adjusted downward to reflect taxes paid on the amount in question. On the contrary, the statute states that the "total" amount of separation pay received shall be deducted. In Sabonis v. Brown, 6 Vet. App. 426 (1994), the Court addressed a similar issue. The appellant in that case maintained that the RO committed error in recouping the gross amount of her readjustment pay from her disability compensation, arguing in part, that the amount to be recouped should not have exceeded the difference between readjustment pay she had received and the amount of federal income taxes she claimed to have paid with respect to that readjustment pay. Characterizing the statutory language in question as "unambiguous," the Court stated that "[t]here is simply no authority in law which would permit the VA to grant appellant's request for relief from total recoupment of her readjustment pay." Sabonis, at 430. The Court held that in cases in which the law and not the evidence is dispositive, a claim for entitlement to VA benefits should be denied because of the absence of legal merit or the lack of entitlement under the law. Id. The Board finds that the law as written by Congress and implemented by VA regulation has been correctly applied in this case. Under current law, the recoupment of the lump-sum separation payment that the veteran received when discharged from service, by withholding in monthly allotments payments of disability compensation benefits, is required. 10 U.S.C. § 1174; 38 C.F.R. § 3.700(a)(5)(i). Inasmuch as VA does not have any discretion in the recoupment of the veteran's separation pay, he has failed to state a claim upon which relief may be granted, and the claim must be denied for lack of legal merit. ORDER Entitlement to service connection for pulmonary tuberculosis is denied. Entitlement to service connection for a right ulnar nerve injury is denied. Entitlement to service connection for left eye nevus is denied. Entitlement to service connection for a left ankle injury is denied. Entitlement to an evaluation in excess of 10 percent for deflection of the nasal septum is denied. A 10 percent evaluation is warranted for a right ankle injury, subject to the laws and regulations governing the payment of monetary benefits. An effective date prior to January 28, 1997, for the grant of entitlement to service connection for deflection of the nasal septum and for a right ankle injury is denied. The veteran's VA disability compensation is subject to recoupment of the separation pay that he received when discharged from the service. His appeal against this recoupment is denied for failure to state a claim upon which relief may be granted. John E. Ormond, Jr. Member, Board of Veterans' Appeals