Citation Nr: 1756561 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 12-24 784 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an increased rating in excess of 10 percent for left medial ankle surgical scar. 2. Entitlement to an increased rating in excess of 10 percent for neuropathy of the calcaneal branch of the posterior tibial nerve, status post excision of left os trigonum. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P. Saindon, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1980 to August 1984 and from October 1989 to August 1990. This matter comes to the Board of Veterans' Appeals (Board) from October 2009 and January 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office in New Orleans, Louisiana. The Veteran testified before the undersigned Veterans Law Judge at a videoconference Board hearing in September 2015. The transcript is of record. The Board remanded these matters in November 2015 and October 2016 for further development. They have returned for adjudication. The Veteran has been separately rated 20 percent disabled for degenerative joint disease of the left ankle. That rating is not on appeal, but is part of the same etiology as the two issues that are on appeal. In addition, at his hearing the Veteran stated that he believed that his ankle conditions had caused his knee problems. The Board interprets this as an attempt to claim service connection for his knees secondary to his left ankle disabilities. This request, however, was made on September 9, 2015. Effective March 24, 2015 all claims for disability compensation must be made on VA standard forms. See Standard Claims and Appeals Forms, 79 Fed. Reg. 57,660 (Sept. 25, 2014). If the Veteran wishes to pursue compensation for his knees he should obtain the appropriate forms from the Regional Office to file a secondary service connection claim, or discuss this matter with his representative and then file the appropriate forms. FINDINGS OF FACT 1. The Veteran has a painful scar that does not result in any independent functional impairment. 2. The Veteran's neuropathy of the calcaneal branch of the posterior tibial nerve is best described as moderate incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased rating in excess of 10 percent for left medial ankle surgical scar have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.118 Diagnostic Codes 7800-7805 (2017). 2. The criteria for entitlement to an increased rating in excess of 10 percent for neuropathy of the calcaneal branch of the posterior tibial nerve, status post excision of left os trigonum, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.124a, Diagnostic Code 8525 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONSS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide the reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by the Veteran or on his behalf. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Board must consider the competency, credibility, and weight of all evidence, including the medical evidence, to determine its probative value. The Board must then account for evidence that it finds persuasive or unpersuasive, and provide reasons for rejecting any evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122, 129 (2000). Equal weight is not accorded to each piece of evidence contained in the record and every item of evidence does not have the same probative value. If the evidence weighs in favor of the veteran or is in relative equipoise, the veteran will prevail. On the other hand, if the preponderance of the evidence is against the veteran, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Disability ratings are based on VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The Veteran's entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found are warranted, a practice of assigning ratings referred to as "staging the ratings." Fenderson v. West, 12 Vet. App. 119, 126 (1999). It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the veteran shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). Increased Rating for Scar Scars are rated under Diagnostic Codes 7800 through 7805. Diagnostic Code 7800 applies only to scars of the head, face or neck. Diagnostic Code 7801 and 7802 apply only to non-linear scars. Diagnostic Code 7803 is no longer in use. Diagnostic Code 7804 applies to painful or unstable scars, and is based on the number of painful or unstable scars. Diagnostic Code 7805 encompasses all scars, and directs the scars to be rated under any appropriate code for the functional loss of the scar. The Veteran testified that his ankle scar was painful. He did not testify that the scar was unstable, i.e. that there was frequent loss of the covering skin. The Veteran has been rated under Diagnostic Code 7804 for his scar. Under Diagnostic Code 7804, one or two painful or unstable scars warrants a 10 percent rating. A higher 20 percent rating is not warranted unless there are three to four painful or unstable scars. Thus, a higher rating under Diagnostic Code 7804 is not warranted. Diagnostic Code 7800 does not apply to scarring of the lower extremity. Diagnostic Codes 7801 and 7802 do not apply as the Veteran's scarring is linear. In addition, the Veteran's scarring comprises an area of less than six square inches, which would be non-compensable even if those diagnostic codes applied. Diagnostic Code 7805 applies, but the Veteran testified that the scar did not affect the Veteran's functioning on its own. The VA examinations have confirmed this testimony. As such, a rating under Diagnostic Code 7805 is not appropriate. As the weight of the evidence is against an increased rating, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. Increased Rating for Neuropathy Neuropathy of the posterior tibial nerve is rated under Diagnostic Code 8525. Under this code, complete paralysis of the nerve warrants a 30 percent rating, severe incomplete paralysis warrants a 20 percent rating, and mild or moderate incomplete paralysis warrants a 10 percent rating. The Veteran is rated at 10 percent disabled for moderate incomplete paralysis. The Veteran was afforded a VA examination in December 2011. The clinician examined the Veteran and opined that the Veteran had mild incomplete paralysis of the left posterior tibial nerve with some moderate symptoms. The Veteran testified that his left ankle caused significant pain upon use. Walking more than a few blocks caused burning and stabbing pain and driving caused a burning sensation. The pain would affect the Veteran's gait. The Veteran also testified that he had lost sensation in parts of his feet and was cautioned against walking barefoot. The Veteran believed his condition to be severe as it impacted several activities. The Veteran was afforded another VA examination in January 2016. The clinician examined the Veteran and opined that the Veteran had moderate incomplete paralysis of the left posterior tibial nerve. The Veteran was afforded another VA examination in November 2016. The clinician again opined that the Veteran had moderate incomplete paralysis of the left posterior tibial nerve and had moderate symptoms. The examiner further opined that the Veteran's neuropathy had not significantly changed since 2009. The Board notes that the regulations do not define moderate or severe. However, the Disability Benefits Questionnaire (DBQ) completed by the 2011 and 2016 examiners specified that the Veteran's symptoms were mild or moderate as opposed to severe. The DBQ was completed by a medical professional who formulated that conclusion based on a physical examination, review of the record, and interview of the Veteran. The Board has no basis to contradict the conclusion made by the examiner. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). As the weight of the evidence is against an increased rating, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. Extra-Schedular Rating The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is adequate, and no extra-schedular referral is required. Id. Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extra-schedular regulation as "governing norms" such as marked interference with employment and frequent periods of hospitalization. The Veteran has raised the issue of an extra-schedular rating for the collective effect of his rated ankle disabilities. The Veteran is currently rated 10 percent for scarring, 10 percent for neuropathy, and 10 percent for degenerative joint disease. The Veteran testified that his ankle caused difficulty doing manual labor and limited his walking to a couple of blocks. He also testified that driving causes burning or stabbing pain. The case was referred to the Director of Compensation Service for consideration of an extra-schedular rating. The Acting Director found that an increased rating on an extra-schedular basis was not established. The rating criteria contemplate the Veteran's conditions. The Veteran's limitations on driving, walking, and physical labor are due to his pain and limitation of motion, both of which are contemplated by the combined disability codes that the Veteran is rated for the ankle. Moreover, even if the rating criteria were inadequate, the Veteran has not frequently missed work or been hospitalized due to his ankle. The Veteran noted that he had to go through vocational rehabilitation to learn a new profession, but the Veteran successfully learned another profession. The rating criteria require actual interference with work. If the Veteran works without frequent interference, this criterion is not met, even if the disability would interfere with a different type of work. As the rating criteria encompass the Veteran's symptoms and as the Veteran has not had frequent periods of interference with work or hospitalization, an extra-schedular rating is not appropriate. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an increased rating in excess of 10 percent for left medial ankle surgical scar is denied. Entitlement to an increased rating in excess of 10 percent for neuropathy of the calcaneal branch of the posterior tibial nerve, status post excision of left os trigonum, is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs