Citation Nr: 18145862 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 16-62 729 DATE: October 30, 2018 ORDER Before April 23, 2018, a rating of 20 percent, but no higher, for the service-connected right ankle disability is granted. Beginning April 23, 2018, a rating higher than 20 percent for the service connected right ankle disability is denied. REMANDED Entitlement to a compensable rating for the service-connected chest scar is remanded. FINDING OF FACT For the entire period on appeal, the Veteran’s right ankle disability most closely approximated marked limitation of ankle motion, without demonstration of functional impairment comparable to ankylosis. CONCLUSIONS OF LAW 1. For the rating period prior to April 23, 2018, the criteria for a 20 percent rating for the right ankle disability have been met. 38 C.F.R. §§ 1155, 5107, 7104; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. 2. For the rating period beginning April 23, 2018, the criteria for a rating higher than 20 percent, for the right ankle disability have not been met. 38 C.F.R. §§ 1155, 5107, 7104 (2017); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (2017). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from September 1965 to September 1967, including service in the Republic of Vietnam. For his meritorious service, the Veteran was awarded (among other decorations) the Combat Infantryman Badge and the Vietnam Campaign Medal. This matter comes on appeal before the Board of Veterans’ Appeals (Board) from a February 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). By way of procedural background, the Veteran submitted a claim for a rating higher than 10 percent for his right ankle disability. Subsequently, the RO denied his claim in a February 2013 rating decision. The Veteran submitted a timely notice of disagreement in March 2013 and perfected his appeal to the Board by submitting a timely November 2016 substantive appeal. Thus, this appeal ensued. In an April 2018 supplemental statement of the case (SSOC), which was effectuated by an April 2018 rating decision, the RO granted the Veteran a rating of 20 percent, but no higher, for the right ankle disability, effective April 23, 2018. Thus, this matter is still before the Board as it was not a complete grant of the benefit sought on appeal. Preliminary Matters The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings 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. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. & 2. For the entire period on appeal, a rating of 20 percent, but no higher, for the service-connected right ankle disability is granted. Prior to April 23, 2018, the Veteran’s service connected right ankle disability was assigned a rating of 10 percent. Beginning April 23, 2018, the Veteran’s service connected right ankle disability was assigned a rating of 20 percent. The Veteran contends that his right ankle disability is more severe than what is contemplated by the currently assigned ratings. The ankle disability have been rated under Diagnostic Code 5271 for limitation of motion of the ankle. Diagnostic Code 5271 provides ratings based on limitation of motion of the ankle. Moderate limitation of motion of the ankle is rated as 10 percent disabling. Marked limitation of motion of the ankle is rated as 20 percent disabling. A 20 percent evaluation is the highest warranted for limitation of motion of the ankle under Diagnostic Code 5271. Normal ranges of motion of the ankle are dorsiflexion from 0 degrees to 20 degrees, and plantar flexion from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. Words such as “moderate” and “marked” are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. VA treatment records indicate the Veteran reported pain in his right ankle. See July 2012, November 2012, April 2013, and October 2013 VA treatment records. The Veteran underwent a VA examination in January 2013. The examiner diagnosed the Veteran with residuals of a right ankle sprain, specifically a nonunion avulsion fracture with bony fragments, by x-ray. The Veteran denied flare ups of the right ankle disability. He had right ankle plantar flexion to 35 degrees with objective evidence of pain beginning at 10 degrees and dorsiflexion to 15 degrees with objective evidence of pain at 10 degrees. The Veteran was able to perform repetitive-use testing with three repetitions without additional functional loss or loss of range of motion. The examiner indicated the Veteran’s functional loss, generally, was due to less movement than normal and pain on movement. The Veteran had localized tenderness or pain on palpation of the joints/soft tissue of the right ankle. Muscle strength of the right ankle plantar flexion and dorsiflexion was slightly diminished with active movement against some resistance. An anterior drawer test and talar tilt test were negative. No ankylosis, shin splints, stress fractures, achilles tendonitis, achilles tendon rupture, malunion of calcaneus or talus, or a talectomy was found. The Veteran had not had a total right ankle replacement or surgery on the right ankle, and as such, no associated scars were found. The Veteran did not use assistive devices for locomotion. Imaging studies were performed in January 2013 and showed degenerative or traumatic arthritis in the right ankle. The examiner concluded that the impact of the right ankle disability was that the Veteran could not ambulate for prolonged distances or stand for prolonged periods. The Veteran submitted private treatment records from Dr. V.I.S. A treatment record dated February 2014 showed the Veteran was treated for chest pain. On physical examination, the Veteran had edema in his ankles. The Veteran next underwent a VA examination in April 2018. The examiner noted the Veteran was diagnosed with osteoarthritis of the right ankle by x-ray in January 2013 and residuals of a right ankle sprain. The Veteran reported having pain all the time, and he treated the pain with Tylenol as needed. The Veteran did not have flare-ups of the right ankle disability. The Veteran’s right ankle disability prevented him from mowing the yard and walking one mile due to increased swelling in the right ankle. The Veteran had abnormal right ankle dorsiflexion to 2 degrees and plantar flexion to 35 degrees. Pain was noted on active and passive range of motion testing. The examiner indicated that the range of motion itself contributed to the functional loss of the right ankle because the constant swelling and pain on dorsiflexion and plantar flexion limited the Veteran’s ability to stand for long periods of time or to walk long distances. The Veteran exhibited pain on weight bearing but not in non-weightbearing. No tenderness on palpation of the joint or associated soft tissue or objective evidence of crepitus was found. The Veteran was able to perform repetitive use testing with three repetitions without additional loss of range of motion. The Veteran’s right ankle was examined after repeated use of over time. The examiner reported that this examination was medically consistent with the Veteran’s statements describing his functional loss with repeated use over time. The examiner also found that pain and fatigue significantly limited his functional ability in the right ankle; however, he was unable to describe this additional limited functional loss in terms of degrees because the major limitation in function was due to pain which may or may not result in limited range of motion. However, the examiner concluded that the it was conceivable that increased discomfort limited overall functioning as described by the Veteran. Muscles strength was normal bilaterally. No muscle atrophy, ankylosis, ankle instability, ankle dislocation, shin splints, stress fractures, achilles tendonitis, achilles tendon rupture, malunion of the calcaneus or talus, or talectomy was found. The Veteran used a cane for locomotion occasionally. The examiner noted that prior imaging studies had been performed and no degenerative or traumatic arthritis had been documented. The examiner noted the Veteran’s current functional loss was due to the pain and swelling. A rating of 20 percent is warranted for the entire period on appeal for the service-connected right ankle disability. In this regard, the evidence demonstrates that before April 23, 2018, the Veteran reported pain, reduced range of motion due to pain and swelling. The Veteran exhibited objective signs of pain on plantar flexion at 10 degrees. Normal plantar flexion is 45 degrees or greater. Thus, the Veteran’s functional ability is less than 50 percent of normal plantar flexion. Additionally, the Veteran exhibited dorsiflexion with objective evidence of pain at 10 degrees (normal is 20 degrees) in the right ankle, which also equates to 50 percent of functional ability. The evidence of record prior to April 23, 2018 indicates that the Veteran’s right ankle disabilities more nearly approximated a “marked” limitation of motion as contemplated by a 20 percent rating under Diagnostic Code 5271 for the entire period on appeal. The Board has considered other potentially applicable Diagnostic Codes. The maximum evaluation available under Diagnostic Codes 5272 through 5274 is 20 percent. Therefore, they are not more favorable to the Veteran. The only other applicable diagnostic code that could provide for a disability rating higher than 20 percent is Diagnostic Code 5271 which contemplates ankle ankylosis. There is no competent evidence, however, that the Veteran’s right ankle disability results in ankylosis. Additionally, the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 are not for consideration where the Veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis. Johnston v. Brown, 10 Vet. App. 80, 84- 5 (1997). Thus, no higher rating is available due to functional loss for any period on appeal. The Board also acknowledges that there is some discrepancy as to whether the Veteran has arthritis in his right ankle. See January 2013 and April 2018 VA examinations. However, as the Veteran has been assigned a 20 percent rating under Diagnostic Code 5271, a higher rating is not possible under Diagnostic Code 5003. Thus, in this instance, the discrepancy of whether the Veteran has arthritis in the right ankle diagnosed by x-ray studies is immaterial. The Board concludes that the objective medical evidence and the Veteran’s statements regarding his symptomatology show a disability that most nearly approximates a marked right ankle disability and warrants the assignment of a 20 percent disability rating for the entire period on appeal. Finally, the Board notes that neither the Veteran nor his representative raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Entitlement to a compensable rating for the service-connected shrapnel wound scar is remanded. The Veteran’s service-connected shrapnel wound scar is currently rated as noncompensable under Diagnostic Code 7805. In a December 2014 rating decision, the Veteran was granted service connection for a surgical scar related to surgery for the service-connected heart disability and assigned a 10 percent rating under Diagnostic Code 7804 effective March 18, 2014. Scars are rated under Diagnostic Codes 7800, 7801, 7802, 7804, and 7805. Diagnostic codes 7801 and 7802 require that all scars not located on the face, neck and head be evaluated on whether each scar is linear, nonlinear, superficial, or deep and the total area the scar(s) cover. In this case, the VA examinations for the shrapnel wound scar have provided the information required by the Rating Code; however, the required measurements of the surgical scar due to the Veteran’s heart surgery is not of record. According to the December 2014 Rating Decision that granted service connection for the surgical scar, a 10 percent rating was based on a March 2014 private Disability Benefit Questionnaire (DBQ). After careful review of the record, a private DBQ for the surgical scar is not associated with the claims file. An accurate analysis cannot be undertaken as to the total area affected of all service-connected scars without measurements of all service-connected scars not located on the head, face, or neck. Thus, a remand is necessary to obtain the private March 2014 DBQ and associate it with the claims file and afford the Veteran a new VA scars examination to evaluate the current nature and severity of the service-connected scars. The matter is REMANDED for the following action: 1. With any necessary assistance from the Veteran, obtain a copy of the March 2014 private DBQ (referenced in the December 2014 Rating Decision) used to rate the Veteran’s service-connected surgical scar resulting from the heart surgery and associate it with the claims file. If the March 2014 private DBQ cannot be located, document this finding in the claims file. 2. Afford the Veteran an additional VA scars examination to evaluate the current nature and severity of his service connected scars, to include the service-connected shrapnel wound scar on the right side of his abdomen and the service-connected surgical scar resulting from the Veteran’s heart surgery. All appropriate rating criteria for the service-connected scars should be addressed. Any necessary evaluations and testing should be conducted. After a review of the claims file and examination of the Veteran, the examiner should address the following: (a) Report the number of service-connected scars that are located on the Veteran’s body in areas other than the head, face, and neck. (b) For each scar identified in 2(a), report if it is (1) unstable; or (2) painful; or (3) unstable and painful. (c) For each scar identified in 2(a), report whether it is (1) deep and nonlinear and (2) the measurements of each deep and nonlinear scar. (d) For each scar identified in 2(a), report whether any scar is (1) superficial and nonlinear and (2) the measurements of each superficial and nonlinear scar. (d) Indicate whether any medication, to include any systemic therapy such as corticosteroids or other immunosuppressive drugs, are prescribed for any service-connected scar. [ Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Harper, Associate Counsel