Citation Nr: 0002368 Decision Date: 01/31/00 Archive Date: 02/02/00 DOCKET NO. 94-15 538 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial rating in excess of 10 percent for residuals of a fracture of the right ankle, status post open reduction, fracture of the third metatarsal of the right foot with traumatic arthritis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. A. Wasik, Associate Counsel INTRODUCTION The veteran served on active duty from October 1987 to October 1989. This matter is before the Board of Veterans' Appeals (Board) on appeal of an August 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In August 1992, the RO granted service connection for tinea versicolor and evaluated the disability as 10 percent disabling. The RO also granted service connection for residuals of a fracture of the right ankle status post open reduction and fracture of the third metatarsal of the right foot with traumatic arthritis and evaluated the disorder as non-compensably disabling. Finally, the RO denied service connection for condyloma acuminata. The veteran has perfected an appeal of the initial disability evaluation assigned for his service- connected right lower extremity disability. In December 1993, a Hearing Officer determined that the disability evaluation for the service-connected fracture of the right ankle, post-operative, and fracture of the right third metatarsal with traumatic arthritis should be 10 percent. The RO implemented the Hearing Officer's decision by its rating decision dated December 15, 1993 which granted an increased rating to 10 percent under Diagnostic Code 5271. The issue on appeal was originally before the Board in August 1998 at which time the claim for an evaluation in excess of 10 percent was denied. The veteran appealed the Board's decision and in June 1999, the United States Court of Appeals for Veterans Claims (hereinafter, "the Court")" granted a joint motion to vacate the Board's August 1998 decision and remand the issue back to the Board for adjudication in accordance with the joint remand. FINDINGS OF FACT 1. The service-connected residuals of a fracture of the right ankle, status post open reduction and fracture of the third metatarsal of the right foot with traumatic arthritis are productive of no more than moderate limitation of ankle motion. 2. The service-connected residuals of a fracture of the right ankle, status post open reduction and fracture of the third metatarsal of the right foot with traumatic arthritis have not rendered the veteran's disability picture unusual or exceptional in nature, markedly interfered with employment, or required frequent inpatient care as to render impractical the application of regular scheduler standards. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 10 percent for residuals of a fracture of the right ankle, status post open reduction and fracture of the third metatarsal of the right foot with traumatic arthritis have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 3.321(b), 4.1, 4.2, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background Review of the service medical records shows the veteran was involved in a motor vehicle accident in March 1989. The report of a March 1989 Medical Board included the diagnoses of right ankle fracture status post open reduction internal fixation, left calf contusion and fracture of the third metatarsal of the right foot. The veteran's subsequent convalescence, to include physical therapy, was without incident. At the time of the separation examination conducted in August 1989 the presence of scars on the right ankle and foot was noted. A VA examination was conducted in February 1992. The veteran reported he had fractured his right ankle and right third metatarsal in March 1989 which required fixation with a pin and months of physical therapy. At the time of the examination he complained, in pertinent part, of difficulties with his foot and ankle including difficulty squatting. He also reported experiencing occasional aching in the ankle and foot when the weather changed. He reported that he avoided sports in order to avoid stressing the joints. Physical examination revealed a surgical scar on the medial aspect of the right ankle. The examiner noted the veteran had difficulty squatting unless his stance had a broad base. Dorsiflexion and plantar flexion of the feet were normal. No gross deformity of the ankle joint was noted. An X-ray of the right ankle was interpreted as revealing an apparent healed fracture of the medial malleolus in excellent position and alignment as well as slight degenerative joint disease. A private treatment record dated in November 1989 was associated with the claims file in October 1992. The stated purpose on the clinical record was evaluation of an ankle and foot injury. The veteran reported that he had injured his right ankle and foot in a motor vehicle accident in March 1989. At the time of the examination, he reported experiencing aching in the morning when first waking up during weather changes or cold weather. The aching subsided after his being up and walking about for a while. Thereafter he was able to walk limp free for the remainder of the day. Physical examination revealed no significant swelling. Moderate tenderness to direct palpation was noted over the medial malleolus on the right without radiation of pain. Some tenderness to palpation was noted over the third metatarsal but the tenderness was diffuse. No tenderness was present upon manipulation of the toe. Gait and heel and toe walking were satisfactory. Hop was performed slightly better on the left non-involved foot but the right hop was acceptable. The diagnoses were open reduction internal fixation fracture of the medial malleolus in good position and alignment, a healed closed fracture of the right third metatarsal with no impairment for the metatarsal fracture, and less than 5% permanent partial impairment to the function of the medial malleolus. The examiner opined that there was a possibility hardware removal would be required in the future but he could foresee no other long term residual difficulties. The examiner also found that the veteran was not at risk of developing any late arthritis in reasonable medical probability. A follow-up to the November 1989 examination was produced the same month. The examiner reported that the ankle function was reduced by a 5% permanent partial impairment. The transcript of a November 1993 local RO hearing has been associated with the claims file. The veteran testified he experienced pain in the third metatarsal area where his foot was broken. Walking or cold weather increased the symptomatology. He testified he had difficulty walking long distances due to ankle pain. He was able to walk two or three miles before having to rest. He was able to run but afterwards he had to rest. The pain was recurrent but not present every day. He reported he did not receive any medical treatment for his ankle or foot. He testified he has "pretty much" retained the motion of his foot and ankle. He reported he was not receiving treatment from any VA facility for the disability. The report of a May 1996 VA joints examination has been associated with the claims file. The veteran reported he fractured his ankle and foot in 1989 while on active duty. Subsequent to active duty he had been involved in a number of motor cycle accidents and had some head injuries. Physical examination revealed the right ankle had a full range of motion in all directions. A scar was present over the medial malleolus which was well-healed and not attached to deeper structures. The veteran could walk smoothly without a limp. He could walk on his tiptoes without problems. He could walk on his heels in a coordinated fashion. He could hop on either foot with speed, coordination and grace. Tenderness but no swelling was present in the right ankle. The tenderness was not exquisite. Either side of the wound was not tender but the veteran did react as if there were some tenderness of the medial malleolus. No deformity was noted. The diagnosis was perfectly normal functional ankle without problems. A second VA joints examination was conducted in August 1997. The veteran complained of right ankle pain, weakness, stiffness, and occasional swelling when doing a lot of walking. He also reported experiencing heat, fatigability and lack of endurance. He reported acute flare-ups. The pain was described as moderate in nature which was exaggerated by walking, running or prolonged standing. He reported that his right ankle limited his ability to perform his job as a sheriff's deputy. He had been employed since February 1997. He had lost no days from work due to being sick for the prior twelve months. Physical examination of the right ankle did not evidence any swelling or pain. Palpation of the right ankle revealed scant tenderness to the posterior lateral malleolus. Passive range of motion generated popping and pain. On standing, the veteran complained of tenderness in the ankle. On walking, he complained of stiffness in the right ankle. The range of motion was plantar flexion of 0-35 degrees with pain and dorsiflexion of 0-10 degrees with pain. The veteran also reported experiencing pain, stiffness, swelling and occasional heat, fatigability and lack of endurance in the right foot. He reported mild to moderate flare-ups. Walking, running and prolonged standing produced the flare-ups. He reported that his right foot adversely affected his ability to perform his job as a sheriff's deputy. Physical examination of the right foot did not reveal the presence of swelling or atrophy. Palpation of the right foot revealed tenderness of the third metatarsal mid-shaft. Dorsiflexion in the 1st metatarsophalangeal joint was 0-60 degrees and plantar flexion of the second through fifth metatarsophalangeal joints was 0-30 degrees. Flexion of the proximal interphalangeal joint was 0-40 degrees. X-rays of the right ankle were interpreted as revealing a healed fracture of the medial malleolus with internal fixation. The diagnoses from the August 1997 VA joints examination were healed fracture of the right ankle with residuals and healed fracture of the third metatarsal of the right foot. It was the examiner's opinion that the veteran did not have any functional impairment due to pain. Pain was visibly manifested during range of motion. There was no evidence of muscle atrophy. There was no presence of objective manifestations demonstrating disuse or functional impairment due to pain related to the service-connected disability. Criteria Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Schedule), 38 C.F.R. Part 4 (1999). The percentage ratings contained in the 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 the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (1999). 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 conclusion. 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 (1999). 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 concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (1999). The United States Court of Appeals for Veterans Claims (Court) held in Hicks v. Brown, 8 Vet. App. 417 (1995), that once degenerative arthritis is established by x-ray evidence, there are three circumstances under which compensation may be available for service-connected degenerative changes: (1) where limitation of motion of a joint or joints is objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion, and that limitation of motion meets the criteria in the diagnostic code or codes applicable to the joint or joints involved, the corresponding rating under the code or codes will be assigned; (2) where the objectively confirmed limitation of motion is not of a sufficient degree to warrant a compensable rating under the code or codes applicable to the joint or joints involved, a rating of 10 percent will be applied for each major joint or group of minor joints affected, "to be combined, not added"; and (3) where there is no limitation of motion, a rating of 10 or 20 percent, depending upon the degree of incapacity, may still be assigned if there is x-ray evidence of the involvement of 2 or more major joints or 2 or more minor joint groups. In addition, diagnostic code 5003 (5010) is to be read in conjunction with 38 C.F.R. § 4.59, and it is contemplated by a separate regulation. 38 C.F.R. § 4.40, which relates to pain in the musculoskeletal system. Finally, the Court noted that "Diagnostic Code 5003 and 38 C.F.R. § 4.59 deem painful motion of a major joint or groups caused by degenerative arthritis that is established by x-ray evidence to be limited motion even though a range of motion may be possible beyond the point when pain sets in. Hicks v. Brown, 8 Vet. App. 417 (1995). The veteran's residuals of a fracture of the right ankle, status post open reduction and for residuals of a fracture of the third metatarsal of the right foot are currently evaluated as 10 percent disabling under Diagnostic Code 5271. Diagnostic Code 5271 provides the rating criteria for evaluating limitation of motion of the ankle. Moderate limitation of motion warrants a 10 percent disability evaluation and marked limitation of motion of the ankle warrants a 20 percent disability evaluation. 38 C.F.R. Part 4, Diagnostic Code 5271 (1999) Other potentially applicable rating codes for evaluation of the right ankle and foot condition include Diagnostic Codes 5270, 5272, 5273, 5274, 5283, 5284, 7803, 7804 and 7805. Diagnostic Code 5270 provides the rating criteria for evaluation of ankylosis of the ankle. Ankylosis of the ankle in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion or eversion deformity warrants a 40 percent evaluation. Ankylosis of the ankle in plantar flexion, between 30 degrees and 40 degrees, or in dorsiflexion between 0 degrees and 10 degrees warrants a 30 percent evaluation. Ankylosis of the ankle in plantar flexion, less than 30 degrees, warrants a 20 percent evaluation. 38 C.F.R. Part 4, Diagnostic Code 5270 (1999) Diagnostic Code 5272 provides the rating criteria for evaluation of ankylosis of the subastragalar or tarsal joints. When there is ankylosis of the subastragalar or tarsal joint, a 10 percent rating is assignable in good weight-bearing position, or a 20 percent rating is assignable when in a poor weight bearing position under Diagnostic Code 5272. 38 C.F.R. Part 4, Diagnostic Code 5272 (1999) Diagnostic Code 5273 provides the rating criteria for evaluation of malunion of the os calcis or astragalus. When there is malunion of the os calcis or astragalus, a 10 percent rating is assignable when moderate or a 20 percent rating is assignable when marked. 38 C.F.R. Part 4, Diagnostic Code 5273 (1999). Diagnostic Code 5274 provides the rating criteria for evaluation of astragalectomy. A 20 percent rating is assignable for an astragalectomy under Diagnostic Code 5274. 38 C.F.R. Part 4, Diagnostic Code 5274 (1999). Diagnostic Code 5283 provides the rating criteria for evaluation of the malunion or nonunion of the tarsal, or metatarsal bones. When the malunion or nonunion is severe, a 30 percent evaluation is warranted. When the malunion or nonunion is moderately severe, a 20 percent evaluation is warranted. A note to the Diagnostic Code shows that with actual loss of use of the foot, a 40 percent evaluation will be assigned. 38 C.F.R. Part 4, Diagnostic Code 5283 (1999). Diagnostic Code 5284 provides the rating criteria for rating foot injuries. A moderate foot injury warrants a 10 percent disability evaluation. A moderately severe foot injury warrants a 20 percent disability evaluation and a severe foot injury is assigned a 30 percent disability evaluation. A 40 percent disability evaluation will be assigned for actual loss of use of the foot. 38 C.F.R. Part 4, Diagnostic Code 5284 (1999). A 10 percent evaluation is warranted for superficial scars which are poorly nourished with repeated ulceration. 38 C.F.R. Part 4, Diagnostic Code 7803 (1999). A 10 percent evaluation is also warranted for superficial scars which are tender and painful on objective demonstration. 38 C.F.R. Part 4, Diagnostic Code 7804 (1999). Other scars will be rated on limitation of function of the part affected. 38 C.F.R. Part 4, Diagnostic Code 7805 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40 (1999). The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45 (1999). The Court has held that functional loss, supported by adequate pathology and evidenced by visible behavior of the veteran undertaking the motion, is recognized as resulting in disability. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45. With any form of arthritis, painful motion is an important factor of disability. The intent of the VA Schedule for Rating Disabilities is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitling to at least the minimum compensable rating for the joint. The joints involved should be tested for pain on both active and passive range of painful motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59 (1999). The provisions of 38 C.F.R. 4.14 preclude the assignment of separate ratings for the same manifestations of a disability under different diagnoses. The critical element is that none of the symptomatology for any of the conditions is duplicative of or overlapping with symptomatology of the other conditions. Esteban v. Brown, 6 Vet. App. 259 (1995). Impairment associated with the veteran's service-connected disability may be rated separately unless it constitutes the same disability or the same manifestation. Esteban, 6 Vet. App. 261. The critical element is that none of the symptomatology is duplicative or overlapping; the manifestations of the disabilities must be separate and distinct. Esteban, 6 Vet. App. at 261, 262. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3 (1999). Analysis Initially, the Board notes the claim of entitlement to an increased evaluation for residuals of a fracture of the right ankle, status post open reduction and for residuals of a fracture of the third metatarsal of the right foot is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). In general, allegations of increased disability are sufficient to establish a well grounded claim seeking an increased rating. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). The veteran's assertions concerning the severity of the right ankle and right foot symptomatology (that are within the competence of a lay party to report) are sufficient to conclude that his claim for an increased evaluation is well grounded. The Board finds an increased rating is not warranted for the residuals of a fracture of the right ankle, status post open reduction, and fracture of the third metatarsal of the right foot with traumatic arthritis. There is no evidence of record demonstrating that the veteran has marked limitation of motion of the right ankle which is the requirement for a 20 percent evaluation under Diagnostic Code 5271. At the time of the most recent VA examination, the veteran was able to perform plantar flexion from 0-35 degrees and dorsiflexion from 0-10 degrees. It was noted that both motions were performed with pain. The normal range of motion for an ankle is 0-45 degrees of plantar flexion and 0-20 degrees of dorsiflexion. 38 C.F.R. § 4.71 Plate II. The Board finds that this reduced range of motion is contemplated in current 10 percent evaluation with no evidence of more than moderate or marked limitation of motion contemplated in the maximum 20 percent evaluation under Diagnostic Code 5271. The Board notes that the veteran testified that he has retained "pretty much" of the motion in the foot and ankle. Moreover, the record shows that when the veteran was examined by VA in 1996, the examiner was of the opinion that range of motion of the right ankle was full. Later dated medical documentation to include examination is negative for any competent medical opinion acknowledging any limitation of motion of the right ankle. An increased rating is not warranted under Diagnostic Code 5270 as there is no evidence of record demonstrating that the veteran has ankylosis of the ankle. An increased rating is not warranted under Diagnostic Code 5272 as there is no evidence of record demonstrating the presence of ankylosis of the subastragalar or tarsal joints. An increased rating is not warranted under Diagnostic Code 5273 as there is no evidence of record demonstrating the presence of malunion of the os calcis or astragalus. An increased rating is not warranted under Diagnostic Code 5274 as there is no evidence of the presence of an astragalectomy. An increased rating is not warranted under the rating criteria promulgated by Diagnostic Code 5283. There is no evidence of record demonstrating that the veteran experiences malunion or nonunion of the tarsal or metatarsal bones. At the May 1996 VA examination, it was noted that nonunion or malunion was not present in the right foot. A separate or increased rating is not warranted upon application of the holdings in the Esteban case under Diagnostic Code 5284. At the time of the most recent VA examination in August 1997, the veteran complained of pain in the right foot which would be mild to moderate during flare- ups. Physical examination revealed mild tenderness of the third metatarsal mid-shaft. However, no swelling or atrophy was present. At the time of the May 1996 VA examination, the veteran was able to walk smoothly and evenly without a limp. He could walk on his heels and he could walk on his tiptoes without any problems. At the time of the August 1997 VA joints examination, while it was noted the veteran had subjective complaints of pain, these subjective complaints were not objectively confirmed. The examiner who conducted the August 1997 VA joints examination specifically included a diagnosis of "[h]ealed right ankle with residuals" (emphasis added) his diagnosis for the right foot "[h]ealed fracture of the 3rd metatarsal of the right foot" did not include a diagnosis reflecting current residuals of the right foot disability. The veteran also testified at the November 1993 RO hearing that he "retained pretty much" of the motion in his right foot. The Board finds the above symptomatology does not reflect compensable disablement such as to warrant a separate evaluation of 10 percent for moderate impairment as contemplated under Diagnostic Code 5283 or 5284. A separate compensable evaluation for the veteran's surgical scar on the right ankle under Diagnostic Codes 7803, 7804 or 7805 is not warranted. At the time of the May 1996 VA joints examination, the scar on the veteran's ankle was described as well healed and not attached to deeper structures. The veteran has not reported experiencing any difficulties with the surgical scar on his ankle. As there is no evidence of record showing any impairment as a result of the surgical scar on the right ankle, a separate compensable evaluation may not be assigned. The Court has held that diagnostic codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45, 4.59. Johnson v. Brown, 9 Vet. App. 7 (1997), and DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Therefore, consideration of an increased evaluation based on functional loss due to pain on flare-ups with limitation of motion of the right ankle is proper. The Board notes the veteran's consistent complaints of pain on use. Such complaints of functional loss due to pain were not objectively confirmed by the most recent VA examination. The Board notes that a lay person can provide evidence of visible symptoms. Dean v. Brown, 8 Vet. App. 449, 455 (1995); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). However, VA regulations require that a finding of dysfunction due to pain must be supported by, among other things, adequate pathology. 38 C.F.R. § 4.40; Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). As the Board has reported earlier, this is not the veteran's case. Dysfunction due to pain has not been supported by adequate clinical objective pathology in the opinion of the examiner who conducted the most recent VA examination of record. The examiner specifically found that "there is no presence of objective manifestation demonstrating disuse or functional impairment due to pain related to the service connected disability." The examiner also specifically noted that there was no functional impairment due to pain, nor muscle atrophy. The Board cannot ignore the fact that on this most recent examination, and previous examinations, there has been no findings of reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, incoordination, etc. Additionally, the Board notes that the current 10 percent evaluation contemplates the demonstrated limitation of motion with arthritic changes, thereby precluding a separate evaluation therefor under the diagnostic codes for arthritis. As the veteran's subjective complaints of pain have not been objectively confirmed by competent medical evidence, and absent any other pertinent symptomatology, the Board finds that no higher rating is warranted with application of the criteria under 38 C.F.R. §§ 4.40, 4.45, 4.59. With respect to the claims for increased evaluations, the Board observes that in light of Floyd v. Brown, 9 Vet. App. 88 (1996), the Board does not have jurisdiction to assign an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1999) in the first instance. The Board however, is still obligated to seek all issues that are reasonably raised from a liberal reading of documents or testimony of record and to identify all potential theories of entitlement to a benefit under the law or regulations. In Bagwell v. Brown, 9 Vet. App. 337 (1996), the Court clarified that it did not read the regulation as precluding the Board from affirming an RO conclusion that a claim does not meet the criteria for submission pursuant to 38 C.F.R. § 3.321(b)(1) or from reaching such conclusion on its own. In the veteran's case at hand, the RO provided and discussed the criteria for assignment of an extraschedular rating, and determined that the veteran's disability picture was not unusual or exceptional so as to warrant referral to the Under Secretary or Director for consideration of an increased evaluation on this basis. The Board agrees with the determination of the RO. The veteran has alleged that his service-connected right lower extremity disability interfered with his work as a sheriff's deputy in that he had trouble performing prolonged chases of criminals and prolonged standing. However, at the time of the August 1997 joints examination, the veteran reported that he had not lost any time off to being sick during the prior twelve months. He had been working since February 1997. Additionally, at time of the August 1997 examination, the examiner specifically found the veteran did not have any functional impairment due to pain. There is no evidence of marked interference with employment. The veteran has not been hospitalized subsequent to his discharge from active duty for his service-connected right lower extremity disability. The evidence of record does not indicate that the veteran's service-connected right lower extremity disability presents such an exceptional or unusual disability picture as to warrant referral of the case to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1). The Board notes that this case involves an appeal as to the initial rating rather than an increased rating claim where entitlement to compensation had previously been established. Fenderson v. West, 12 Vet. App. 119 (1999). In initial rating cases, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Id. at 9. In the case at hand, as an increased rating is not warranted, the Board finds that a staged rating is not appropriate. Although the veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for an evaluation in excess of 10 percent for residuals of a fracture of the right ankle, status post open reduction with fracture of the third metatarsal of the right foot with traumatic arthritis. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Entitlement to an initial rating in excess of 10 percent for residuals of a fracture of the right ankle, status post open reduction and fracture of the third metatarsal of the right foot with traumatic arthritis is denied. RONALD R. BOSCH Member, Board of Veterans' Appeals