Citation Nr: 18146946 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 16-09 539 DATE: November 2, 2018 ORDER An effective date of May 15, 1975, but no earlier, for the grant of service connection for a left ankle scar, is granted. An effective date prior to October 6, 2014, for the grant of service connection for a right arm disorder, is denied. An initial rating of 10 percent, but no more, for a right arm disorder is granted. A rating in excess of 40 percent for a left ankle disorder, including special monthly compensation (SMC) for the loss of use of the left ankle and foot, is denied. REMANDED Entitlement to a rating in excess of 30 percent for asthma is remanded. Entitlement to an initial compensable rating for a left ankle scar is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran had a left ankle scar as of May 15, 1975, and prior to the initial adjudication of his service connection claim for a left ankle disorder. 2. On October 6, 2014, the Veteran submitted an initial application for entitlement to service connection for a right arm disorder. 3. In a rating decision dated in February 2015, the Regional Office (RO) granted service connection for a right arm disability, effective October 6, 2014, the date the Veteran’s application was received. 4. The Veteran’s right arm disability is characterized by bursitis, complaints of pain and weakness, and abnormal limitation of motion due to flare-ups. 5. The 40 percent disability rating that is currently in effect is the maximum schedular rating that can be assigned for the Veteran’s left ankle disability. 6. The Veteran’s left ankle disability did not involve a level of impairment comparable to amputation with prosthesis. CONCLUSIONS OF LAW 1. The Veteran is entitled to an effective date of May 15, 1975, but no earlier, for the grant of service connection for his left ankle scar. 38 U.S.C. § 5108, 5110, 7104; 38 C.F.R. §§ 3.156, 3.400. 2. The criteria for an effective date earlier than October 6, 2014, for the grant of service connection for a right arm disability have not been met. 38 U.S.C. § 5108, 5110, 7104; 38 C.F.R. §§ 3.156, 3.400. 3. The criteria for a disability rating of 10 percent, but no more, for a right arm disability have been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5206. 4. The criteria for a rating in excess of 40 percent for a left ankle disability, including SMC for loss of use of the left ankle and foot, have not been met. 38 U.S.C. §§ 1114(k), 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.350, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, DC 5271-5262. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1972 to February 1975. The Board observes that the RO has obtained additional medical records since it issued its last statement of the case (SOC) for the disorders on appeal. Nevertheless, the Board has reviewed the additional records and finds that the information contained therein is consistent with, duplicative, and cumulative of the records already reviewed by the RO, and therefore finds that there is no prejudice to the Veteran by considering this evidence. See 38 C.F.R. § 20.1304(c). Additionally, the Board notes that the Veteran was afforded a VA examination in March 2017 to assess the severity of his service-connected right arm disability that was not considered by the RO. However, given that this decision represents a full grant of the benefits sought on appeal with respect to this issue, there is no prejudice to the Veteran by adjudicating the claim without an initial review of the evidence by the RO. Earlier Effective Dates The Veteran generally asserts that he is entitled to an earlier effective for his service-connected left ankle scar and right arm disability. In general, the effective date for the grant of service connection based upon an original claim or a claim reopened after final disallowance is either the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise it will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. §§ 3.400(b)(2)(i), (ii). 1. Entitlement to an effective date prior to October 6, 2014 for the grant of service connection for a left ankle scar In February 2015, the RO granted service connection for a left ankle scar and assigned a noncompensable rating, effective October 6, 2014 – the date of his initial application. However, while the Veteran does not assert that he filed an earlier claim for benefits related to his scar, he nevertheless asserts that his scar was the result of left ankle surgery that was present that the time he was awarded service connection for a left ankle disability in August 1975. In this case, the Board determines that an effective of May 15, 1975, but no earlier, for the grant of service connection for a left ankle scar is warranted. Specifically, in March 1975, the Veteran filed a claim for a left ankle disorder. During the course of the appeal, on May 15, 1975, the Veteran had surgery on his left ankle that was related to his initial underlying service connection claim. In a June 1975 VA examination, the examiner specifically noted this ankle surgery, as well as the fact that his surgery consisted of “splitting the peroneus brevis and rerouting it past the neck of the talus through the distal fibula and into the calcaneus.” In August 1975, the RO subsequently granted service connection for a left ankle disability, with an effective date of February 8, 1975. Therefore, the Board finds that a claim for a left ankle scar due to the Veteran’s left ankle disability was reasonably raised by the evidence developed with his March 1975 claim. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009); Brokowski v. Shinseki, 23 Vet. App. 79, 86 (2009). Of note, the Board observes that while the June 1975 VA examination did not specifically document a left ankle scar, the Board can reasonably infer that based upon the nature of the Veteran’s ankle surgery described in the examination report, the Veteran would have had a scar at the time of the examination. Accordingly, the Veteran’s claim for an earlier effective date for a left ankle scar is granted. The Veteran is assigned an effective date of May 15, 1975, the date of his left ankle surgery, which is the date entitlement arose for service connection for his left ankle scar. 2. Entitlement to an effective date prior to October 6, 2014 for the grant of service connection for a right arm disability In this case, the assigned effective date for the Veteran’s right arm disability was October 6, 2014. After a review of the claims file, the Board finds that the Veteran’s service connection claim was received by the RO on October 6, 2014. Importantly, in arriving at this conclusion, the Board notes that while the claim was dated September 17, 2014, it was postmarked with a cover letter from his attorney that was dated October 3, 2014. As such, the record does not indicate, and the Veteran does not assert that VA received his September 2014 claim prior to October 6, 2014. Further, the date of receipt of the claim having been established, the Board has also reviewed whether there is any evidence of an intent to file a claim for benefits prior to October 6, 2014. In this regard, a review of the record also fails to show that the RO received claim or informal written communication indicative of the Veteran’s desire to seek to file a claim of service connection for a right arm disorder. Additionally, the Board acknowledges that the Veteran had symptoms and a diagnosis of a right arm disorder prior to October 6, 2014. However, the Board is bound by the applicable regulations. Because the effective date of an evaluation and award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is the later, and because the date of receipt of the Veteran’s claim for service connection for a right arm disorder was October 6, 2014, an effective date earlier than this date for the grant of service connection is denied. 38 C.F.R. § 3.400. Increased Ratings The Veteran is seeking increased ratings for his service-connected left ankle disability and right arm disability. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. In the case of an initial rating, the entire evidentiary record from the time of a veteran’s claim for service connection to the present is of importance in determining the proper evaluation of disability. Fenderson v. West, 12 Vet. App. 119 (1999). However, where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 3. Entitlement to an initial compensable rating for a right arm disorder The Veteran is currently in receipt of a noncompensable rating for his right arm disorder under 38 C.F.R. § 4.71a, DC 5206 (addressing arm limitation of motion). As a preliminary matter, given that the Veteran’s February 2015 and March 2017 VA examinations reveal lateral epicondylitis and bursitis in his right elbow with functional limitation due to pain and flare-ups, the Board assigns an initial rating of 10 percent under DC 5019. 38 C.F.R. § 4.71a. Additionally, given that the Veteran specifically requested a 10 percent rating for his right arm disability in an April 2018 correspondence, the Board finds that this is a full grant of the benefits sought. Cf. AB v. Brown, 6 Vet. App. 35 (1993). 4. Entitlement to a rating in excess of 40 percent for a left ankle disorder, including SMC for the loss of use of the left ankle and foot The Veteran is seeking an increased rating for his left ankle disability. The Veteran is currently in receipt of a 40 percent rating under 38 C.F.R. § 4.73, DC 5262-5271. As such, the Board finds that the Veteran receives the maximum schedular rating available under either DC 5262 or DC 5271. Therefore, the Board finds that a schedular rating in excess of 40 percent is not warranted for the Veteran’s left ankle disability under these diagnostic codes. Next, the Board has considered whether the Veteran could receive a higher rating based upon any other diagnostic code. However, there is no other applicable diagnostic code in which the Veteran could receive a higher evaluation. Specifically, the Board notes that the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed. 38 C.F.R. § 4.68. The combined evaluations for disabilities below the knee shall not exceed the 40 percent evaluation provided for amputation at that level. 38 C.F.R. § 4.71a, DC 5165. Therefore, given that the Veteran is already in receipt of a 40 percent rating, his is not entitled to a schedular rating in excess thereof, including for residuals such as nerve impairment. However, while the Veteran is in receipt of the maximum schedular rating, special monthly compensation (SMC) may be assigned based upon loss of use of a foot under 38 U.S.C. § 1114(k). In this case, the Veteran also asserts that he is entitled to SMC based upon the loss of use of his left foot due to his service-connected left ankle disability. The term “loss of use” of a foot is defined at 38 C.F.R. § 3.350(a)(2) as that condition where no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the knee with the use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function, whether, in the case of a foot, could be accomplished equally well by an amputation stump with prosthesis. See also 38 C.F.R. § 4.63. Examples under 38 C.F.R. § 3.350(a)(2) that constitute loss of use of a foot include extremely unfavorable ankylosis of the knee, complete ankylosis of two major joints of an extremity, shortening of the lower extremity of 31/2 inches or more, and complete paralysis of the external popliteal (common peroneal) nerve and consequent foot-drop, accompanied by characteristic organic changes including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of that nerve. See also 38 C.F.R. § 4.63. In Tucker v. West, 11 Vet. App. 369, 373 (1999), the Court held that the relevant inquiry concerning loss of use is not whether amputation is warranted, but whether the claimant has had effective function remaining other than that which would be equally well served by an amputation with use of a suitable prosthetic appliance. In this case, SMC based upon the loss of use of the Veteran’s left foot is not warranted as there is no evidence of ankylosis, complete paralysis of the external popliteal, and/or no other evidence that the actual remaining function in the Veteran’s left foot could be accomplished equally well by an amputation stump with prosthesis. Specifically, in a February 2015 VA examination, while the Veteran reported “near continuous daily pain” that required the use of assistive devices, he nevertheless exhibited 5 degrees of dorsiflexion and normal (45 degrees) plantar flexion. There was no evidence of ankylosis and the examiner opined that the Veteran’s ankle functioning was not so diminished that he would be equally served with and an amputation and prosthesis. Further, the March 2017 VA examination demonstrates that the Veteran did not have loss of use of his left foot as the range of motion with dorsiflexion improved slightly to 20 degrees, while his plantar flexion diminished only slightly to 38 degrees. Further, while the Veteran stated that he had functional loss when walking for long distances and standing, he did not indicate that his pain and loss of functioning was equivalent to the loss of use of his foot. Moreover, the examiner did not report diminished function limitation that is equivalent to amputation with a prothesis. In fact, the Veteran did not have pain on examination or loss of function related to painful motion. The Board also acknowledges that while the Veteran had “severe” incomplete paralysis of his external popliteal nerve, there was no evidence of complete paralysis, or that it was specifically related to his service-connected left ankle disability. Additionally, while the Veteran’s sensory examination revealed absent sensation touching in his left lower extremity, his muscle strength and reflex examinations were normal with no evidence of muscle atrophy. As such, overall, his examination indicates that the functioning in his left lower extremity was greater that it would be with than with amputation with prothesis – despite the fact that he had no sensation. Lastly, the Board observes that the Veteran’s medical treatment records, including from December 2016 and June 2017, do not reflect that his left ankle disability causes a level of impairment comparable to amputation with prosthesis. Therefore, based on the evidence of record, a rating in excess of 40 percent, including SMC based upon loss of use of his left ankle and foot, is not warranted. In arriving at this conclusion, the Board has also considered the statements from the Veteran that his left ankle disorder is worse than the ratings he currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report ankle symptoms such as pain, limitation of motion, neuropathy, and burning sensations, because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his service-connected disabilities according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). On the other hand, such competent evidence concerning the nature and extent of the Veteran’s service-connected left ankle disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which this disability is evaluated. The Board also finds that consideration for an extraschedular evaluation, a component of a claim for an increased rating, is not warranted. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). In considering whether an extraschedular rating may be warranted, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran’s level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. See Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the evidence does not indicate that Veteran’s disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above. Specifically, the Board has reviewed all of his relevant symptoms related to the issues on appeal, including limitations with activities of daily living, and concludes that there are no symptoms that were not able to be addressed by the applicable diagnostic codes. See Mittleider v. West, 11 Vet. App. 181 (1998). As such, the Veteran’s symptoms are not which are so unusual that they are outside the schedular criteria. Therefore, given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran’s disability picture includes exceptional factors, and referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). REASONS FOR REMAND 1. Entitlement to a rating in excess of 30 percent for asthma is remanded. 2. Entitlement to an initial compensable rating for a left ankle scar is remanded. The Board observes that the Veteran was afforded VA examinations in March 2017 to assess the nature and severity of his service-connected asthma and left ankle scar. Further, the RO has obtained numerous relevant VA treatment records since February 2016 which may impact the Veteran’s increase rating claims. However, this evidence was not considered by the RO in its most recent February 2016 SOC, and the Veteran did not waive initial RO consideration of this evidence. Therefore, a remand is required for the AOJ to consider this evidence and for the issuance of an appropriate supplemental statement of the case. See 38 C.F.R. § 20.1304(c). 3. Entitlement to TDIU is remanded. As for the Veteran’s TDIU claim, the Board is unable to adjudicate this claim until the above development is completed. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). The matters are REMANDED for the following action: 1. Obtain any and all treatment records from the VA Medical Center in Sioux Falls, South Dakota since December 2017, and any other VA facility from which the Veteran has received treatment. If the Veteran has received additional private treatment, he should be afforded an appropriate opportunity to submit them. 2. The RO should undertake any additional action it deems necessary in order to properly adjudicate the claims, including any additional VA examinations. If the claims are not fully granted, a supplemental statement of the case should be issued on the matters on appeal, and the claims file should be returned to the Board for further appellate consideration. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Meyer, Associate Counsel