Citation Nr: 1333191 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 10-13 951 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent for arthritis and Achilles tendinopathy, left ankle, postoperative. 2. Entitlement to an initial evaluation in excess of 10 percent for residual scars, status post (s/p) ankle surgeries. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from January 1999 to April 2005. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from an August 2009 rating decision issued by the Regional Office (RO) in Denver, Colorado, that assigned a temporary 100 percent rating from May 18, 2009 to July 1, 2009 and an evaluation of 20 percent from July 1, 2009. The RO subsequently granted a separate 10 percent rating for the scars associated with the Veteran's multiple left ankle surgeries and included it as part of this appeal of the overall rating assigned for the left ankle disability. Although the Veteran initially requested a hearing in this case, he later withdrew his request. Therefore, no hearing was held. The issue of entitlement to a rating in excess of 20 percent for the left ankle arthritis with Achilles tendinopathy is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran has two scars on the left ankle that are at times painful. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for left ankle scars have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2013); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.118, Diagnostic Code 7804 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veterans Claims and Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants with substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. § 3.102, 3.156(a), 3.159. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate his or her claim. 38 U.S.C.A. § 5103(a), 38 C.F.R § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 186-187 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper VCAA notice 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. The Board notes that 38 C.F.R. § 3.159 was revised in part, effective May 30, 2008. See 73 Fed. Reg. 23,353-23,356. The third sentence of 38 C.F.R. § 3.159(b)(1), which stated that "VA will also request that the claimant provide any evidence in the claimant's possession that pertains to the claim," was removed. This amendment applies to all applications pending on, or filed after, the regulation's effective date. VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112, 115 (2004). However, the VCAA notice requirements may be satisfied notwithstanding errors in the timing or content of the notice if such errors are not prejudicial to the claimant. Id at 121. Further, a defect in the timing of the notice may be cured by sending proper notice prior to a re-adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333-1334 (Fed. Cir. 2006). The VA General Counsel issued a precedential opinion interpreting Pelegrini as requiring the Board to ensure that proper notice is provided unless it makes findings regarding the completeness of the record or other facts that would permit the conclusion that the notice error was harmless. See VAOGCPREC 7-2004. The United States Court of Appeals for the Federal Circuit reaffirmed the importance of proper VCAA notice in Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Mayfield and its progeny instruct that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents, is required to meet the VCAA's notification requirements. Id at 1320. However, VCAA notification does not require a pre-adjudicatory analysis of the evidence already contained in the record. See, e.g. Mayfield v. Nicholson, 20 Vet. App. 537, 541 (2006). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sum nom Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements are applicable to all five elements of a service connection claim. Thus, the Veteran must be notified that a disability rating and effective date for the award of benefits will be assigned if service connection for a claimed disability is awarded. Id at 486. In this case, the Veteran was sent a letter in June 2009, prior to the rating decision at issue, which explained what the evidence needed to show in order to establish a higher evaluation for his left ankle disability. It also explained the general manner whereby VA assigns ratings and effective dates for service connected disabilities. Additionally, the June 2009 letter explained how VA could assist the Veteran with gathering evidence in support of his claims. Although the letter did not address the issue of scars specifically, the Veteran did not file a claim for a separate evaluation for his scars, rather, the RO considered a separate rating for scars as part of the Veteran's overall claim for a higher rating for his left ankle disability. VA also must make reasonable efforts to assist the claimant with obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has of record evidence including service treatment records, VA electronically stored and paper treatment records, and the written contentions of the Veteran. The Veteran was provided three examinations of his left ankle which ancillarily addressed his scars. The Board finds that VA satisfied its duty to notify and assist the claimant with respect to the issue of his left ankle scars. Initial Rating-Scars The Veteran has not made any specific contentions about the scars on his left ankle. The RO assigned a separate rating for the Veteran's scars as part of his appeal of the overall rating of his left ankle disability. Disability ratings are determined by applying criteria that are set forth in the VA's Schedule for Rating Disabilities (38 C.F.R. Part 4). Ratings are based on average impairments of earning capacity resulting from particular diseases and injuries and the residuals thereof in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities are described utilizing diagnostic codes set forth in 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In cases in which a claim for a higher evaluation arises out of the initial grant of service connection for the disability at issue, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the claim and appellate process. See generally Fenderson v. West, 12 Vet. App. 119 (1999). See also Hart v. Mansfield, 21 Vet. App. 505 (2007). Painful or unstable scars are rated pursuant to 48 C.F.R. § 4.118, diagnostic code 7804. A 10 percent rating is applied for one or two scars that are painful or unstable. A 20 percent rating applies for three or four scars which are painful or unstable. A 30 percent rating applies for five or more scars that are unstable or painful. If one or more scars are both painful and unstable, 10 percent will be added to the evaluation that is based on the total number of unstable or painful scars. Scars which are deep or large, or which involve the head, face, or neck, may be rated using other diagnostic codes. However, those codes are not applicable here. Scars which cause impairment of function may also be rated on limitation of function of the affected part. Here, the evidence shows the limitation of function is due to the service connected left ankle disability and not specifically the scars associated with that disability. At the Veteran's examination in July 2009, the examiner noted two well healed scars, anteromedially and anterolaterally, at the ankle joint line on the left, measuring 1cm by 5 mm, indicating slight widening of the scars. The scars were slightly darker than regular skin color and minimally raised. They were non-tender and there was no significant adherence to underlying tissue. The examiner stated that the scars were "totally healed." There was also a thinner, curvilinear 3 cm scar that was also non-tender with no significant adherence to underlying tissue. The Veteran was examined again on April 8, 2010, which the RO assigned as the effective date for the separate rating for the scars. At that time the examiner recorded two .5 cm by .5 cm tender scars on the left ankle (medial and lateral). The scars were not unstable and there was no adherence to underlying tissue. The scars were superficial and slightly darker than normal skin color. There was no limitation of function due to the scars. VA reexamined the Veteran's left ankle in May 2013. The examiner noted that the Veteran's scars were very hard to find, but he discovered a couple of 1cm horizontal arthroscopic ports. The evidence shows, at best, two tender scars. There is no indication of additional tender or unstable scars. The scars are not deep or more than 144 square inches in size. They do not affect the function of any part. The criteria for a rating in excess of 10 percent for the scars are not met. There is also no indication that the criteria for a separate rating for scars were met prior to April 8, 2010, which was the first notation of painful scars. There was no discussion of painful scars in the Veteran's treatment records or upon examination prior to that time. The Board considered whether an extraschedular rating for the scars was warranted. However, the symptom of intermittently painful scars is contemplated by the assigned rating. 38 C.F.R. § 3.321(b). See also Thun v. Peake, 22 Vet. App. 111, 115 (2008) (the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the schedular evaluation is inadequate). ORDER A rating in excess of 10 percent for left ankle scars is denied. REMAND In this case, the Veteran's representative claims that the Veteran's level of functional impairment is more severe than is accounted for by application of the rating criteria at 38 C.F.R. § 4.71a. When either a claimant or the evidence of record suggests that a schedular rating may be inadequate, the Board must specifically adjudicate the issue of whether referral for an extraschedular rating is warranted. See, e.g., Colayong v. West, 12 Vet. App. 524, 536 (1999). In this case, the rating schedule contemplates marked limitation of motion of the ankle at the 20 percent level. A higher scheduler rating requires ankylosis in plantar flexion of 30 degrees or more or in dorsiflexion or with abduction, adduction, inversion, or eversion deformities. The evidence does not show that the Veteran has any type of ankylosis, although at an April 2010 examination he was shown to have no active motion of the left ankle (passive motion was possible with pain). Other examinations have shown limited motion of the left ankle. In an April 2010 written statement the Veteran reported repeated pain, swelling, instability, and locking of his left ankle. At his May 2013 examination, in addition to limited motion, which as stated above is contemplated by the rating schedule, the Veteran had laxity to inversion/eversion stress. He had been issued a brace in 2011 for stability and wore it at all times. His ankle rolled at times and he had to be careful how he walked. He used a cane. The Veteran had weakened movement, excess fatigability, pain on movement, disturbance of locomotion, and interference with standing and walking. His ankle was tender to palpation. Recent treatment records showed that the Veteran was being given injections to treat his left ankle pain but these were not helpful. Since 2001, the Veteran had five surgeries on his ankle and was scheduled for a sixth surgery, although treatment records reflect that this surgery was not expected to improve his condition much. He had left ankle surgeries in service in 2001 and 2002, and after service in 2006, May 2009, and December 2009. Treatment records reflect that in May 2013 another surgery was to be scheduled. The determination of whether a claimant is entitled to an extraschedular rating pursuant to 38 C.F.R. § 3.321(b) is a three step inquiry. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the schedular evaluation is inadequate. Thun v. Peake, 22 Vet. App. 111, 115 (2008). In order to make this determination, the level of severity and symptomology of the claimant's service connected disability must be compared to the established criteria in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptoms, the assigned schedular evaluation is adequate. Id. If they do not, the VA must undertake the second step of the inquiry, which is to determine whether the claimant's disability exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Id at 115-116. If an analysis of the first two steps indicates that the first two factors exist, the third step is to refer the case to the Undersecretary for Benefits or the Director of the Compensation and Pension Service for a determination as to whether justice requires the assignment of an extraschedular rating. Id at 116. In this case, while as noted above the Veteran's limitation of motion of the left ankle is contemplated by the rating schedule, the additional symptom of laxity/instability requiring the use of a brace are not. Taken together with the number and frequency of surgeries on the Veteran's left ankle, the question of whether this case presents an exceptional and unusual disability picture arises. The Board finds that this case should therefore be referred to the Director, Compensation and Pension Service, for consideration of whether an extraschedular rating is warranted. Accordingly, the case is REMANDED for the following action: 1. Take appropriate action to refer this case to the Director, Compensation and Pension Service, for consideration of whether an extraschedular rating is warranted for the Veteran's arthritis and Achilles tendinopathy of the left ankle. 2. After completion of the above development, the Veteran's claim should be re-adjudicated. If the determination remains less than fully favorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC). Thereafter, if warranted, the case should be returned to the Board for appellate disposition. The appellant 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims 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). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs