Citation Nr: 1315407 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 06-29 637 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia THE ISSUES 1. Entitlement to an increased rating for service-connected residuals of a right ankle sprain injury. 2. Entitlement to an increased rating for service-connected residuals of a left ankle sprain injury. 3. Entitlement to an increased rating for service-connected acne facial scars. 4. Entitlement to an increased rating for service-connected acne scars of upper back. 5. Entitlement to service connection for degenerative disc disease of the cervical spine. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. Durham, Counsel INTRODUCTION The Veteran served on active duty from June 1977 to June 1981. These matters come before the Board of Veterans' Appeals (Board) on appeal from May 2004 and November 2009 rating decisions. In a November 2008 rating decision, the RO increased the evaluation assigned to the Veteran's service-connected residuals of a left ankle sprain injury and residuals of a right ankle sprain injury to 20 percent each, effective January 10, 2004. This rating decision also increased the evaluation assigned to the Veteran's facial scars, residual of acne to 10 percent, effective October 14, 2008. Since the RO did not assign the maximum disability ratings possible, these appeals for higher evaluations remain before the Board. AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). The Board notes that the Veteran submitted a July 2009 notice of disagreement (NOD) with regard to the July 2009 denial of his claim for service connection for posttraumatic stress disorder (PTSD). In March 2011, the Veteran was granted service connection for an acquired mental condition diagnosed as anxiety disorder (claimed as PTSD). This decision was a complete grant of benefits with respect to this issue. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Therefore, this issue is not currently on appeal before the Board. Further, the Board notes that the Veteran included the issues of entitlement to service connection for a bilateral foot disability and a bilateral shoulder disability in his September 2002 NOD. However, the Veteran subsequently indicated in an October 2003 statement that he wished to amend his claim by dropping a couple of the claimed conditions and proceeded to not list these conditions in the list of claims he was pursuing. As such, the Board finds these issues are not currently on appeal. Additionally, the Board notes that the claims file contains a May 2004 statement of the case (SOC) addressing the issues of entitlement to service connection for tooth pain secondary to extractions and for a scar of the right fourth fingertip. However, as a timely substantive appeal was not submitted with regard to these issues, these issues are also not on appeal before the Board. The Board notes that the July 2006 SOC also included the issue of entitlement to an increased evaluation for tinnitus. However, as the Veteran did not indicate in his September 2006 substantive appeal that he wished to appeal this issue, this issue is also not currently on appeal before the Board. The Board notes that this issue was apparently inadvertently included on a subsequent October 2007 SOC. However, as the Veteran clearly indicated on his September 2006 substantive appeal that he did not wish to appeal this issue, as a timely substantive appeal was not filed as to the October 2007 SOC, and as there is no indication that he believes this issue is currently on appeal, the Board continues to construe this issue as not being on appeal before the Board. In February 2012, the Veteran testified at a Travel Board hearing before the undersigned at the St. Petersburg, Florida, RO. A copy of the transcript of this hearing is of record. The Board notes that, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2011) requires that the Veterans Law Judge (VLJ)/Decision Review Officer (DRO) who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ identified the issues on appeal and testimony was taken as to the severity of the disabilities decided herein. It is clear from the Veteran's testimony that he had actual knowledge of the elements that were lacking to substantiate his claims. Significantly, the Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The Board notes that the Veteran indicated in a letter dated October 21, 2003, that he had retained American Legion as his power of attorney. A statement signed on March 1, 2004, was submitted on the Veteran's behalf by an accredited representative of the American Legion. However, as the claims file does not contain a power of attorney form designating American Legion as the representative, the Veteran was sent a letter in February 2013 asking him to clarify his power of attorney. The Veteran responded by indicating that he wished to represent himself. As such, the Board acknowledges that the Veteran is unrepresented. In reviewing the Veteran's appeals for increased ratings, the Board has not overlooked the recent holding of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that claims for higher evaluations also include a claim for a total rating based on individual unemployability (TDIU) when the appellant claims he is unable to work due to a service connected disability). However, the Board notes that the Veteran has not indicated that he is unemployed or unemployable as result of his service-connected disabilities on appeal. As such, the Board finds that Rice is not applicable to the current appeal because the Veteran has not claimed that his service-connected disabilities on appeal prevent him from obtaining and/or maintaining employment. There must be cogent evidence of unemployability in the record. See Rice, 22 Vet. App. 447, citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). Therefore, the Board finds that the current decision need not consider whether the Veteran meets the criteria for entitlement to TDIU. The record reflects that the Veteran submitted additional evidence to the Board in conjunction with this case accompanied by a waiver of initial review of this evidence by the agency of original jurisdiction (AOJ) in accord with 38 C.F.R. § 20.1304. Further, the Board notes that additional evidence was also associated with the claims file after the most recent supplemental statement of the case (SSOC) was issued without a waiver of initial review of this evidence by the AOJ. However, as this evidence either duplicates evidence already of record or is not relevant to the claims on appeal, the Board may proceed to adjudicate the claims as done below. The issues of entitlement to service connection for degenerative disc disease of the cervical spine, entitlement to an increased rating for service-connected acne facial scars, and entitlement to an increased rating for service-connected acne scars of upper back are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's service-connected bilateral ankle disability is manifested by complaints of pain, swelling, and limitation of motion. CONCLUSIONS OF LAW 1. For the period of January 18, 2001, to January 9, 2004, the criteria for a disability rating of 20 percent, but no more, for service-connected residuals of a right ankle sprain injury have been met. See 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (2012). 2. For the period of January 10, 2004, to the present, the criteria for a disability rating in excess of 20 percent for service-connected residuals of a right ankle sprain injury have not been met. See 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (2012). 3. For the period of January 18, 2001, to January 9, 2004, the criteria for a disability rating of 20 percent, but no more, for service-connected residuals of a left ankle sprain injury have been met. See 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (2012). 4. For the period of January 10, 2004, to the present, the criteria for a disability rating in excess of 20 percent for service-connected residuals of a left ankle sprain injury have not been met. See 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA letters dated in January 2002 and September 2008 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claims. These letters informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. With regards to initial rating claims, where, as here, service connection has been granted and the initial rating has been assigned, the claim of service connection has been more than substantiated, as it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Furthermore, once a claim for service connection has been substantiated, the filing of a NOD with the rating of the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. See Dingess v. Nicholson, 19 Vet. App. 473, 490-491; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Board also concludes VA's duty to assist has been satisfied. The Veteran's available service treatment records and relevant VA medical records are in the file. The Board finds that all relevant records identified by the Veteran as relating to these claims have been obtained, to the extent possible. Medical records were requested from facilities for which the Veteran submitted Authorization and Consent to Release Information forms, and replies to these requests have been associated with the claims file. The record contains sufficient evidence to make a decision on the claims. VA has fulfilled its duty to assist. With respect to claims for increased ratings, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). With regard to the Veteran's claims for increased ratings for his service-connected ankle disabilities, the Veteran was provided VA orthopedic examinations which addressed these claims, the most recent of which was conducted in October 2008. There is no evidence indicating that there has been a material change in the severity of these service-connected disabilities since he was last examined. See 38 C.F.R. § 3.327(a) (2012). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. See VAOPGCPREC 11-95. The Board finds the October 2008 examination report to be thorough and consistent with contemporaneous medical records. The examination was adequate upon which to base a decision with regards to these claims. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2012). Where the Veteran timely appealed the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the Veteran is entitled to "staged" ratings to compensate him for times since filing his claim when his disability may have been more severe than at other times during the course of his appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2012). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). In a May 2004 rating decision, the RO granted service connection for residuals of right and left ankle injuries and assigned 10 percent evaluations, effective January 18, 2001, under Diagnostic Code 5271. In a November 2008 rating decision, the RO increased the evaluations assigned to the Veteran's service-connected residuals of a left ankle sprain injury and his service-connected residuals of a right ankle sprain injury to 20 percent each, effective January 10, 2004. The Veteran is seeking higher evaluations. Diagnostic Code 5010 addresses the issue of arthritis due to trauma, substantiated by x-ray findings, which is to be rated as degenerative arthritis under Diagnostic Code 5003. See 38 C.F.R. § 4.71a, Diagnostic Code 5010 (2012). Degenerative arthritis, when established by x-ray findings, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent 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. See 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012). Diagnostic Code 5271 specifically applies to limitation of motion of the ankle. This diagnostic code provides a 10 percent rating for symptomatology reflective of disabilities with moderate limitation of motion and a 20 percent rating for disabilities involving marked limitation of motion. A 20 percent is the maximum evaluation provided under Diagnostic Code 5271. See 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2012). According to Plate II of the Schedule for Ratings Disabilities, normal dorsiflexion of the ankle is zero to 20 degrees; and normal plantar flexion is zero to 45 degrees. See 38 C.F.R. § 4.71, Plate II (2012). When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. The Board notes that the Veteran underwent a VA examination in February 2002. The Veteran reported multiple left ankle sprains. He reported that his ankle swells with any extended use. The pain of the ankle is described as a "constant dull ache." Bilateral ankle dorsiflexion was noted as 0 to 20 degrees, normal being 0 to 20 degrees. Bilateral ankle plantar flexion was noted as 0 to 45 degrees, with normal being 0 to 45 degrees. Muscle strength was noted as 5/5 in both upper and lower extremities. There was no atrophy of any major muscle noted. In an addendum to this examination report, it was noted that there is an estimated 20 percent decrease in range of motion with flare-ups of knee or ankle pain. The Veteran underwent another VA examination in January 2004, at which the Veteran reported bilateral ankle instability and recent minor sprains frequently resulting in mild tenderness and limping for several days. The Veteran reported that he tries to wrap the ankles on occasion. His gait was normal. He denied flare-ups and reported no assistive devices, crutches, canes, walkers, or orthotics. With regard to the right ankle, the Veteran was noted as having approximately 0 degrees of maximum dorsiflexion and 30 degrees of plantar flexion. There was no crepitus on examination and a negative anterior drawer sign. There was a mild amount of instability noted with excessive inversion and pain along the anterior talofibular ligament on the right. No synovitis was noted. The left ankle evaluation revealed a positive anterior drawer sign with significant excursion of the talus on the tibia. There was excessive amount of inversion and instability noted on the left as well. No synovitis was noted. The Veteran was diagnosed with bilateral ankle instability with no degenerative arthritis noted. The examiner noted that there was no additional functional loss due to pain or after repeated use. More recently, the Veteran underwent a VA examination in October 2008. The Veteran reported pain in his right ankle that had gotten worse and more episodes of instability of the right ankle since his last examination. He also reported that his ankle swells up at least twice a month. The Veteran reported that the pain and instability in his left ankle had gotten worse since his last examination. The left ankle swells up at least 3 times per month. The Veteran reported that he wears an AC wrap at times to control his ankle swelling and instability, especially his left ankle. The examiner noted that there were no constitutional symptoms of arthritis, assistive aids needed for walking, or incapacitating episodes of arthritis. No deformity, stiffness, weakness, episodes of dislocation or subluxation, locking episodes, or inflammation were noted. Pain, giving way, and instability were noted bilaterally, as well as repeated effusion. The examiner noted that the Veteran was at least 50 percent disabled during flare-ups that occurred 2-3 times per month and lasted about 1 day. His gait was noted as normal. With regard to range of motion, the Veteran's bilateral dorsiflexion was noted as 0 degrees active motion against gravity with pain beginning at -5 degrees and ending at 0 degrees. There was no additional limitation of motion on repetitive use. Bilateral plantar flexion was noted as 0 to 30 degrees passive range of motion with pain beginning at 20 degrees and ending at 30 degrees. There was no additional limitation of motion on repetitive use. No joint ankylosis was noted. The examiner noted tenderness, painful movement, instability, guarding of movement, and tendon abnormality. The examiner noted that the Veteran had increased absenteeism from work. The Board has also reviewed the available VA treatment records. With regard to assigning an evaluation in excess of 10 percent for the period of January 18, 2001, to January 9, 2004, the Board notes that the February 2002 VA examination report recorded the Veteran's bilateral ankle dorsiflexion as 0 to 20 degrees, with normal being 0 to degrees, and his bilateral ankle plantar flexion as 0 to 45 degrees, with normal being 0 to 45 degrees. The Veteran has reported that the examination was inadequate as a goniometer was not used. An addendum to the examination report noted that there was an estimated 20 percent decrease in range of motion with flare-ups of knee or ankle pain. The Veteran has reported that he has weakness, painful motion, tenderness, guarding of movement and pain which result in functional impairment on use that constitutes marked limitation of motion. In light of the addendum to the 2002 examination indicating that there were flare-ups resulting in limitation of motion, the Veteran's statements as to the symptoms he experienced which result in functional impairment, and resolving all reasonable doubt in favor of the Veteran, the Board finds that the estimated decrease in range of motion with flare-ups of pain reflects that the Veteran's bilateral ankle disability shows marked limitation of motion. Therefore, the Board finds that separate 20 percent evaluations should be awarded for each ankle under Diagnostic Code 5271 for the period of January 18, 2001, to January 9, 2004. With regard to assigning an evaluation in excess of 20 percent under Diagnostic Code 5271 for any period of time on appeal, a 20 percent is the maximum evaluation provided under this diagnostic code. As such, an increased evaluation is not warranted under this diagnostic code for any period of time on appeal With respect to granting an increased rating under Diagnostic Code 5010, the Veteran is already receiving a compensable evaluation for limitation of motion of the ankles. Therefore, increased ratings cannot be assigned under Diagnostic Code 5010. With regard to assigning a higher disability rating for any period of time on appeal based on functional loss as contemplated by the Court's holding under Deluca, the Board notes that the Veteran is already receiving a 20 percent evaluation for each ankle under Diagnostic Code 5271 for limitation of motion, which is the maximum evaluation allowed for limitation of motion of the ankle, and the evidence does not show that the Veteran's symptoms result in the functional equivalent of ankylosis of either ankle. Therefore, increased evaluations are not available under 38 C.F.R. §§ 4.40 or 4.45 or under the provisions of Deluca for any period of time on appeal. The Board has reviewed the remaining diagnostic codes relating to ankle disabilities. However, the claims folder contains no evidence indicating that the Veteran's bilateral ankle disability is manifested by ankylosis as contemplated by a higher evaluation under Diagnostic Code 5270. Likewise, ankylosis of the subastragalar or tarsal joint, malunion of the os calcis or astragalus, or astragalectomy are not shown. As such, increased ratings cannot be assigned for any period of time on appeal under Diagnostic Codes 5272-5274. See 38 C.F.R. § 4.71a, Diagnostic Codes 5272-5274 (2012). The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where scheduler evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three- step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's service-connected bilateral ankle disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. His symptoms including weakness, tenderness, and pain ultimately result in limitation of motion. There is no evidence in the medical records or an assertion of an exceptional or unusual clinical picture. The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. In summary, the Board concludes that the evidence supports separate increased 20 percent ratings for the Veteran's service-connected residuals of a right ankle sprain injury and his service-connected residuals of a left ankle sprain injury for the period of January 18, 2001, to January 9, 2004, and the preponderance of the evidence is against assigning separate evaluations in excess of 20 percent for the Veteran's service-connected residuals of a right ankle sprain injury and his service-connected residuals of a left ankle sprain injury for any period of time on appeal. The benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application as there is not an approximate balance of evidence. See generally Gilbert, supra; Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Assignment of staged ratings has been considered and is not for application. Fenderson, supra. Finally, the Board notes that the Veteran specifically indicated at the February 2012 hearing that his bilateral ankle disability appeal would be satisfied by the grant of separate 20 percent evaluations for each ankle dating back to the original date of his claim, January 18, 2001. As such, the Board notes that the Veteran's appeals of these issues are considered satisfied by this decision. ORDER For the period of January 18, 2001, to January 9, 2004, entitlement to an evaluation of 20 percent for service-connected residuals of a right ankle sprain injury is granted. For the period of January 10, 2004, to the present, entitlement to an evaluation in excess of 20 percent for service-connected residuals of a right ankle sprain injury is denied. For the period of January 18, 2001, to January 9, 2004, entitlement to an evaluation of 20 percent for service-connected residuals of a left ankle sprain injury is granted. For the period of January 10, 2004, to the present, entitlement to an evaluation in excess of 20 percent for service-connected residuals of a left ankle sprain injury is denied. REMAND With regard to the Veteran's claim of entitlement to service connection for degenerative disc disease of the cervical spine, the Board notes that this issue was denied in a November 2009 rating decision. Subsequently, the Veteran indicated in an October 2010 statement that he disagreed with this denial. The Veteran has not been afforded a SOC addressing this issue. Therefore, the claim must now be remanded to allow the RO to provide the Veteran with an appropriate SOC on this issue. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); see also Godfrey v. Brown, 7 Vet. App. 398, 408-410 (1995); Archbold v. Brown, 9 Vet. App. 124, 130 (1996); VAOPGCPREC 16-92 (O.G.C. Prec. 16-92). The issue will be returned to the Board after issuance of the SOC only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997); Archbold, 9 Vet. App. at 130. With regard to the Veteran's claims for increased ratings for service-connected acne facial scars and service-connected acne scars of upper back, the Board finds that additional development is needed prior to the adjudication of these claims. Specifically, the Board notes that the Veteran underwent VA skin disease and scar examinations in October 2008. At the VA skin disease examination, the examiner noted that the Veteran had superficial acne with comedones, papules, pustules, and superficial cysts. It was noted that less than 40 percent of the face and neck were affected. Other affected areas were noted as the anterior and posterior torso. A percentage of affected area was not provided with regard to the back. At the VA scar examination, the Veteran was noted as having multiple (25-30) small scars on the upper back/posterior trunk. Additionally, multiple scars were noted on the Veteran's face. The Board notes that the Veteran's service-connected acne facial scars are currently evaluated under Diagnostic Code 7800 and the Veteran's service-connected acne scars of upper back are currently evaluated under Diagnostic Code 7805. However, the Board notes that the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Furthermore, while service-connected disabilities and ratings in effect for 20 years or more are protected, and ratings in effect for shorter periods are also afforded some protections against reduction, the selection of diagnostic codes or applicable rating criteria are not protected and may be appropriately revised if the action does not result in the reduction of compensation payments. See 38 C.F.R. §§ 3.951, 3.957 (2012); See Butts, 5 Vet. App. 532; VAOPGCPREC 71-91 (Nov. 7, 1991). In light of the Veteran's symptoms, the Board finds it necessary to consider whether it is appropriate to evaluate the Veteran's service-connected acne facial scars and his service-connected acne scars of upper back under alternative diagnostic codes, such as Diagnostic Code 7806. The Board notes that Diagnostic Code 7806 evaluates skin diseases based in part on the percentage of the entire body or the percentage of the exposed areas affected by the skin condition. As noted above, the October 2008 VA skin examination report indicated that less than 40 percent of the Veteran's face and neck were affected but did not give a precise estimate for the percentage that is affected by the Veteran's service-connected facial scars. Moreover, neither the October 2008 VA skin or scar examination report provided the estimated percentage of the Veteran's skin that is affected by his residual acne scars of the upper back. As such, in light of the criteria set forth in Diagnostic Code 7806, the Board finds that a new VA examination must be provided in order to determine the current severity of his service-connected acne facial scars and his service-connected acne scars of upper back. Additionally, the Board notes that the Veteran asserted at the February 2012 hearing that photographs were taken at his VA scar and skin examinations. As such, upon remand, the RO/AMC should attempt to obtain any available photographs taken at the Veteran's VA skin and scar examinations. The RO/AMC should also take this opportunity to obtain any relevant VA treatment records that have not yet been associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with a SOC as to the issue of entitlement to service connection for degenerative disc disease of the cervical spine. The Veteran should be informed that he must file a timely and adequate substantive appeal in order to perfect an appeal of this issue to the Board. If a timely substantive appeal is not filed, the claim should not be certified to the Board. 2. Obtain any available photographs taken at the Veteran's VA skin and scar examination, to specifically include the February 2002, April 2004, October 2008, and any current examinations. Document all efforts to obtain photographs. 3. Obtain VA treatment records that have not yet been associated with the claims file. 4. Provide the Veteran with an appropriate VA examination in order to determine the current severity of his service-connected acne facial scars and his service-connected acne scars of upper back. The claims folder must be made available to the examiner and pertinent documents therein should be reviewed by the examiner. The examiner must note in the examination report that the claims folder was reviewed in conjunction with the examination. The examiner should also elicit from the Veteran a personal history concerning this disability, including treatment. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner should specifically note the percentage of the entire body and the percentage of exposed areas that are affected by the Veteran's service-connected acne facial scars, as well as the percentage of the entire body and the percentage of exposed areas affected by the Veteran's acne scars of upper back. For each specific scar noted, the examiner should note the scar characteristics, such as whether the scars are deep, linear, superficial, elevated, depressed, adhere to underlying tissue, tender, hypo-pigmented, hyper-pigmented, unstable, painful on examination, or cause limited motion, tissue loss, repeated ulceration, exudation, exfoliation, crusting, or itching. The examiner should also comment on the skin texture, any missing soft tissue, and whether the skin is indurated or inflexible. The examiner is also asked to note the exact measurements (in sq. inches or centimeters) of the scars. Further, the examiner should note any treatment that the Veteran receives or has received for these disabilities and the length of time of such treatment. Any and all opinions must be accompanied by a complete rationale. 5. Then, the RO/AMC should readjudicate the Veteran's claims for increased ratings for service-connected acne facial scars and service-connected acne scars of upper back. In particular, the RO should review all the evidence that was submitted since the most recent SSOC. In the event that the claims are not resolved to the satisfaction of the Veteran, he should be provided a SSOC, which includes a summary of additional evidence submitted, any additional applicable laws and regulations, and the reasons for the decision. After the Veteran and his representative have been given the applicable time to submit additional argument, the claims should be returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No further action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. See 38 C.F.R. § 3.655 (2012). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs