Citation Nr: 1803314 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 14-29 121A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a rating in excess of 10 percent for a status post-surgical repair of a ruptured left Achilles tendon. 2. Entitlement to a compensable rating for surgical scar of the left wrist. REPRESENTATION Appellant represented by: A. Brooke Thomas, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Parrish, Associate Counsel INTRODUCTION These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. A subsequent June 2014 rating decision assigned a 10 percent evaluation for the left ankle disability as of November 3, 2011, the date of the Veteran's request for an increased evaluation. However, as that award did not represent a total grant of benefits sought on appeal, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). In October 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the proceedings is associated with the electronic claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACTS 1. Prior to December 8, 2016, the Veteran's status post-surgical repair of a ruptured left Achilles tendon was evidenced by 20 degrees of plantar flexion and 20 degrees of dorsiflexion, with no evidence of painful motion, and more closely approximates moderate limitation of motion of the left ankle. 2. As of December 8, 2016, the Veteran's status post-surgical repair of a ruptured left Achilles tendon was evidenced by 40 degrees of plantar flexion and 5 degrees of dorsiflexion, with no evidence of painful motion, and more closely approximates marked limitation of motion of the left ankle. 3. During the entire period on appeal, the Veteran's left wrist scar, which measured no longer than 4 centimeters, was not manifested by complaints of pain and was neither unstable nor nonlinear. CONCLUSIONS OF LAW 1. For the period prior to December 8, 2016, the criteria for a rating in excess of 10 percent for the Veteran's status post-surgical repair of a ruptured left Achilles tendon have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (2017). 2. For the period beginning December 8, 2016, the criteria for a 20 percent rating for the Veteran's status post-surgical repair of a ruptured left Achilles tendon have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (2017). 3. The criteria for a compensable rating for a left wrist scar have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.118, Diagnostic Code (DC) 7805 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2017). In his August 2014 VA form 9, the Veteran questioned whether his VA treatment records dated from January 2011 to June 2014 were of record. The Board has reviewed the claims file and has determined that the Veteran's VA treatment records dated from December 2009 through June 2017 have been associated with the claims file and were considered. Neither the Veteran nor his representative has raised any further 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). Initially, the Board notes it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. The Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to each claim. Factual Background In November 2011, the Veteran applied for an increase in the ratings for his left ankle disability and his left wrist scar. In April 2012, a VA examination determined that the Veteran was status post-surgical repair of a ruptured left Achilles tendon. His functional limitation was noted to be mild. He reported that he had no limited range of motion, but that he could not tip-toe. He reported no other symptoms associated with this condition. His flare-ups were reported as not being able to tip-toe. His left ankle plantar flexion was to 20 degrees, with no objective evidence of painful motion. His dorsiflexion was to 20 degrees or greater, with no evidence of painful motion. He was able to perform repetitive use testing without any change in his range of motion or functional loss. He did not have localized tenderness or pain on palpation of joints or soft tissue of the ankle. His plantar and dorsiflexion strength was normal. There was no laxity, ankylosis, malunion of the calcaneous or talus, or talectomy. The Veteran reported regular use of a cane, to which he attributed to a lumbar spine and knee condition. X-rays did not find arthritis of the left ankle. A concurrent scars examination found the Veteran to have a scar on his left wrist. It was not found to cause functional limitation. The scar was asymptomatic and well healed. The scar was not painful or unstable. It was linear and measure approximately 1 centimeter by 1.5 centimeters. On December 8, 2016, a VA examination determined that the Veteran's left ankle was status post Achilles tendon repair. The Veteran reported he had decreased range of motion. He denied acute pain or swelling of the ankle. He had no pain associated with active or passive range of motion of the ankle. He did not have flare-ups or have functional loss or impairment of the left ankle. His left ankle had dorsiflexion to 5 degrees and plantar flexion to 40 degrees. There was no pain with weight bearing, or localized tenderness or pain or palpitation of the joint. There was no crepitus. He was able to perform repetitive testing without loss of function or range of motion. Pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. His muscle strength testing was 4 out of 5, but he did not have muscle atrophy. He did not have "shin splints", stress fractures, malunion of calcaneus or talus, talectomy, or ankylosis of the left ankle. He did not report use of an assistive device. A concurrent VA examination of the Veteran's left wrist scar indicated that his scar was linear and measured 4 centimeters. The scar was not unstable. The Veteran denied any difficulty with the scar and denied any pain associated with active or passive range of motion of the left wrist. In October 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. He stated that he had arthritis in his left wrist, that the wrist would get swollen, and that there was a slight pain, but he was unable to determine if the swelling and pain was due to his non-service connected arthritis or due to the scar on the wrist. He also testified that he had pain and difficulty moving his left ankle. He stated that he did not seek medical treatment for his pain or loss of mobility of the left ankle and that he was dealing with it at home. Increased Ratings Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7 (2017). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). The Board notes that where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. When rating musculoskeletal disabilities based on limitation of motion, a higher rating must be considered where the evidence demonstrates additional functional loss due to pain. 38 C.F.R. § 4.40, 4.45 (2017). The rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including use during flare-ups. DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In determining if a higher rating is warranted, pain itself does not constitute functional loss. Similarly, painful motion alone does not constitute limited motion for the purposes of rating under diagnostic codes pertaining to limitation of motion. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2017). Painful motion should be considered to determine whether a higher rating is warranted, whether or not arthritis is present. Burton v. Shinseki, 25 Vet. App. 1 (2011). Left Ankle The Veteran's status post-surgical repair of a ruptured left Achilles tendon was assigned a 10 percent rating since November 3, 2011, under DC 5271. 38 C.F.R. § 4.71a. The Veteran contends his left ankle is worse than his assigned evaluation reflects. Under DC 5271, a rating of 10 percent is warranted when limitation of motion of the ankle is moderate. 38 C.F.R. § 4.71a. The maximum rating of 20 percent is warranted where the limitation of motion in the ankle is marked. Normal ankle motion is dorsiflexion to 20 degrees, and plantar flexion to 45 degrees. 38 C.F.R. § 4.71a, Plate II. Words such as "moderate" and "marked" are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2017). Based on the foregoing, the Board finds that a rating in excess of 10 percent for the period prior to December 8, 2016, is not warranted. The Veteran's April 2012 VA examination showed that his range of motion for his left ankle was at 20 degrees of both plantar flexion and dorsiflexion. Thus, the Veteran had full normal range of dorsiflexion motion and a limited amount of plantar flexion motion. His functional limitation was also noted to be mild. He had normal strength in plantar and dorsiflexion and did not report any painful motion or other limitations. As such, the Board finds that the Veteran's left ankle disability prior to December 8, 2016, was more closely approximated by moderate limitation of motion. The Board finds the April 2012 VA examiner's medical opinion highly probative to the issue of the severity of the Veteran's left ankle disability. Specifically, the examiner interviewed the Veteran and conducted a physical examination. Moreover, the examiner had the requisite medical expertise and had sufficient facts and data on which to base the conclusions. As such, the Board accords the VA examination opinion great probative weight. The Board has also considered the statements submitted by the Veteran in support of the claim, including his hearing testimony. The Board finds that the Veteran is a lay person and is competent to report observable symptoms he experiences through his senses such pain and stiffness. Layno v. Brown, 6 Vet. App. 465 (1994). However, the Board finds the medical findings, as provided in the examination reports, is most persuasive and outweighs the Veteran's statements in support of his claim for a rating higher than 10 percent for this period. Accordingly, the Board finds that the preponderance of the evidence weighs against a rating in excess of 10 percent for the Veteran's left ankle disability prior to December 8, 2016. However, based on the foregoing, the Board finds as of the December 8, 2016, VA examination the limitation of the left ankle motion more nearly approximates marked limitation of the left ankle. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca and Mitchell, supra. At his December 2016 VA examination the Veteran's dorsiflexion had reduced to 5 degrees. Though his planar flexion was normal at 40 degrees and he did not have pain on examination, the reduction of the Veteran's dorsiflexion was significant. Therefore, the Board finds that the Veteran's limitation of the motion of the left ankle is more closely approximated by a marked limitation and that the criteria for a 20 percent rating under DC 5271 is met as of December 8, 2016. A 20 percent rating is the maximum rating available under DC 5271. A rating in excess of 20 percent for the left ankle disability is not warranted under any other potentially applicable rating criteria pertaining to the ankle. Indeed, a rating in excess of 20 percent is not warranted under DC 5270 (for ankle ankylosis) or DC 5272 (for ankylosis of the subastragalar or tarsal joint) because the evidence does not demonstrate ankylosis or ankylosis of the subastragalar or tarsal joint for the left ankle. Also, the left ankle has not undergone an astragalectomy; therefore, a rating in excess of 20 percent is not warranted under DC 5274 for astragalectomy. Furthermore, the evidence does not demonstrate malunion of the os calcis or astragalus; therefore, a higher rating under DC 5273 (for malunion of the os calcis or astragalus) is not warranted. The Board has also considered DCs 5276, 5277, 5278, and 5283, which concern disabilities of the foot and provide for ratings higher than 20 percent. However, since the Veteran's left ankle disability is not shown by the medical evidence to manifest flatfoot, weak foot, claw foot or malunion or nonunion of the tarsal or metatarsal bones, those DCs are not applicable. The Board also finds that the weight of the evidence is against finding that the left ankle more closely approximates a severe foot injury such that the criteria for a rating in excess of 20 percent under DC 5284 for other foot injuries are met. Under DC 5284, a 30 percent rating is warranted for a severe foot injury. A 40 percent rating may be assigned if there is actual loss of use of the foot. 38 C.F.R. § 4.71a, DC 5284. In this case, the weight of the evidence shows that the Veteran has limitation of left ankle motion; however, the Veteran does not have left ankle ankylosis; his use of an assistive device for mobility is not solely based on the disability of his left ankle; and he experiences no associated, decreased sensation or muscle strength. For these reasons, the Board finds that the disability picture does not more closely approximate severe foot injury such that a 30 percent rating or higher under DC 5284 is warranted. The Board has also considered 38 C.F.R. § 4.59 regarding the Veteran's left ankle. In this case, however, the Veteran's VA examinations did not find painful motion and the Veteran has already been assigned the maximum rating for the left ankle based on limitation of motion. Johnston v. Brown, 10 Vet. App. 80, 85 (1997) The Board finds the December 2016 VA examiner's medical opinion highly probative to the issue of the severity of the Veteran's left ankle disability. Specifically, the examiner interviewed the Veteran and conducted a physical examination. Moreover, the examiner had the requisite medical expertise and had sufficient facts and data on which to base the conclusions. As such, the Board accords the VA examination opinion great probative weight. The Board has also again considered the statements submitted by the Veteran in support of the claim, including his hearing testimony. The Board finds that the Veteran is a lay person and is competent to report observable symptoms he experiences through his senses such pain and stiffness. Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran's statements and testimony serves, in part, as the basis for the assignment of a higher rating during this period of the appeal. Accordingly, the Board finds that the preponderance of the evidence meets the criteria for a 20 percent rating for the Veteran's status post-surgical repair of a ruptured left Achilles tendon, as of December 8, 2016. However, the Board finds that the preponderance of the evidence is against the assignment of a rating higher than 20 percent. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Left Wrist Scar The Veteran's left wrist scar was assigned a noncompensable rating since the August 2006, effective date of the grant of service connection under DC 7805. 38 C.F.R. §4.118 (2017). DC 7805 applies to other scars (including linear scars) and other effects of scars evaluated under DCs 7800, 7801, 7802 and 7804. Any disabling effects not considered in a rating provided under DCs 7800 through 7804 should be evaluated under an appropriate diagnostic code. Pursuant to DC 7804 for rating scars that are unstable or painful, a 10 percent rating is assigned for one or two scars that are unstable or painful, a 20 percent rating is assigned for three or more scars that are unstable or painful, and a 30 percent rating is assigned for five or more scars that are unstable or painful. Note (1) to DC 7804 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note (3) provides that scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an evaluation under this DC, when applicable. 38 C.F.R. § 4.118. DC 7800 specifically applies to scars of the head, face, and neck. DC 7801 governs scars involving areas other than the head, face, or neck that are deep and nonlinear and provides for a 10 percent evaluation when the area or areas exceed six sq. inches (39 sq. cm.). A 20 percent evaluation is assigned when the area or areas exceed 12 sq. inches (77 sq. cm.). Note 1 provides that a deep scar is one associated with underlying soft tissue damage. DC 7802 applies to burn scars or scars due to other causes, not of the head, face, or neck that are superficial and nonlinear. Under this provision, a maximum schedular evaluation of 10 percent is warranted for scars with an area or areas of 144 sq. inches (929 sq. cm.) or greater. Note 1 provides that a superficial scar is one not associated with underlying soft tissue damage. Based on the foregoing, the Board finds that the Veteran's left wrist scar does not warrant a compensable rating. He did not complain of pain in the left wrist scar in either of his VA examinations, in 2012 or 2016, and the scars were not found to be either painful or unstable in those examinations. The Veteran's October 2017 hearing testimony also did not attribute pain directly to his left wrist scar. As such, the Board finds that the Veteran's left wrist scar does not warrant a compensable evaluation. The Board finds the 2012 and 2016 VA examiners' medical opinions adequate and highly probative both as to the Veteran's subjective report and the resulting objective findings. Specifically, the examiners interviewed the Veteran and conducted a physical examination. Moreover, the examiners had the requisite medical expertise and had sufficient facts and data on which to base their conclusions. As such, the Board accords the 2012 and 2016 VA examinations opinion great probative weight. The Board has also considered the statements submitted by the Veteran in support of the claim, including his October 2017 hearing testimony. The Board finds that the Veteran is a lay person and is competent to report observable symptoms he experiences through his senses such pain. Layno v. Brown, 6 Vet. App. 465 (1994). However, he is not competent to identify a specific level of disability according to the appropriate diagnostic codes. The medical findings, as provided in the examination reports, directly address the criteria under which his disability is rated. The Board finds that evidence is the most persuasive and outweighs the Veteran's statements in support of his claim. The Board also notes, again, that in his hearing, the Veteran did not attribute the pain experienced in his left wrist directly to his surgical scar. In addition, the Board has considered other potentially applicable diagnostic codes for rating the Veteran's service-connected left wrist scar. The Board finds that a separate or higher rating for the Veteran's left wrist scar pursuant to those DCs is not warranted. The Veteran's scar is on his left wrist, not on his head, face, or neck, rendering the criteria of DC 7800 inapplicable. The Veteran's 2012 and 2016 VA examinations indicated that the scar was not deep, as there was no underlying tissue damage present; thus, DC 7801 is also inapplicable. There is also no reasonable argument that the Veteran's scar involved an area of at least 144 square inches, as his VA examinations measured the scar at no greater than 4 centimeters. As such, the criteria of DC 7802 do not apply. Finally, as there is also no evidence of record that the Veteran had any disabling effects from his left wrist scar, a separate compensable rating under DC 7805 is also unwarranted. Accordingly, the Board finds that the preponderance of the evidence weighs against a compensable rating for the Veteran's left wrist scar. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a rating in excess of 10 percent for status post-surgical repair of a ruptured left Achilles tendon for the period prior to December 8, 2016, is denied. Entitlement to a 20 percent rating, but no higher, for status post-surgical repair of a ruptured left Achilles tendon for the period beginning December 8, 2016, is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an initial compensable rating for a left wrist scar is denied. ____________________________________________ Lesley A. Rein Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs