Citation Nr: 18147606 Decision Date: 11/05/18 Archive Date: 11/05/18 DOCKET NO. 16-24 207 DATE: November 5, 2018 ORDER Entitlement to an initial 10 percent rating for postoperative traumatic arthritis of the right ankle is granted. Entitlement to an initial compensable rating for a right ankle surgical scar is denied. FINDINGS OF FACT 1. The preponderance of the evidence reflects that during the appellate period, the Veteran’s service-connected right ankle condition manifested as traumatic arthritis established by diagnostic X-ray imaging; “moderate” or “marked” limitation of motion of the right ankle is not shown. 2. The preponderance of the evidence reflects that during the appellate period, the Veteran’s service-connected right ankle surgical scar is not painful; it measures 7 centimeters long by 0.4 centimeters wide; and it does not cause functional limitation. CONCLUSIONS OF LAW 1. The criteria for an initial 10 percent rating for postoperative traumatic arthritis of the right ankle have been satisfied. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321(b)(1), 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010 (2017). 2. The criteria for a compensable initial rating for a service-connected surgical scar have not been met or approximated. 38 U.S.C. §§ 1155, 5107 (2012), 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.59, 4.130, Diagnostic Codes (DCs) 7802, 7804, 7805 and 7806 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service with the U.S. Army from July 2006 to December 2012. During this time, he was awarded the Afghanistan Campaign Medal, the Korean Defense Service Medal, the Army Commendation Medal, and the National Defense Service Medal, among other medals. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision issued by the Department of Veterans Affairs (VA) regional office (RO) in Winston-Salem, North Carolina. Procedurally, the Board notes that in addition to these issues, the Veteran had also appealed the issues of entitlement to an increased initial rating for ulcerative colitis, entitlement to an initial compensable rating for allergic rhinitis, and entitlement to service connection for human bites on the left hand, all of which were denied by the RO in a May 2016 Statement of the Case. The Veteran subsequently filed a Form 9 that same month specifying that he only wished to appeal the claims related to his right ankle claim. See May 2016 Appeal to the Board of Veterans’ Appeals (VA Form 9) (reflecting that the Veteran checked box 6A to appeal specific issues, and wrote “right ankle” underneath). The Board also notes that the Veteran indicated on the May 2016 Form 9 that he has an unknown skin condition on his right foot. Id. However, a review of the evidence of record does not reflect that the Veteran previously filed an informal or formal claim pertaining to a skin condition. Effective on March 24, 2015, a specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. See 79 Fed. Reg. 57660 (Sept. 25, 2014). Accordingly, the Veteran is advised to file a formal claim for his claim for a skin condition using the appropriate form. Increased Ratings VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R., Part IV. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The schedule recognizes that disability from distinct injuries or diseases may overlap. See 38 C.F.R. § 4.14. However, the evaluation of the same disability or its manifestation under various diagnoses, which is known as pyramiding, is to be avoided. Id. Because the level of disability may have varied over the course of the claim, the rating may be “staged” higher or lower for segments of time during the period under review in accordance with such variations, to the extent they are sufficient to warrant changes in the evaluations assignable under the applicable rating criteria. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). In initial-rating cases, where the appeal stems from a granted claim of service connection with respect to the initial evaluation assigned, VA assesses the level of disability from the effective date of service connection. See Fenderson, 12 Vet. App. at 126. For increased-rating claims, where a claimant seeks a higher evaluation for a previously service-connected disability, it is the present level of disability that is of primary concern, and VA considers the level of disability for the period beginning one year prior to the claim for a higher rating. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994); see also 38 C.F.R. § 3.400(o)(2). The Board must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as “seriously disabled” any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). However, pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011) (holding that the pain “must actually affect some aspect of ‘the normal working movements of the body’ such as ‘excursion, strength, speed, coordination, and endurance’ [under] 38 C.F.R. § 4.40 in order to constitute functional loss” warranting a higher rating). Moreover, when the diagnostic code is not predicated on the loss of range of motion, or the Veteran already has the highest available rating based on restriction of motion, the provisions regarding pain in 38 C.F.R. §§ 4.40 and 4.45 do not apply. Johnson v. Brown, 9 Vet. App. 7, 11 (1996). The Board can consider whether an increased evaluation would be in order under other relevant diagnostic codes. The assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.” Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the current diagnosis, and demonstrated symptomatology. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Thus, the Board may consider the propriety of assigning a higher, or separate rating for the left ankle, under another diagnostic code. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). The evaluation of the same disability or the same manifestations of disability under multiple diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a big extent, so that special rules are included in the appropriate bodily system for their evaluation. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as “such a result would overcompensate the claimant for the actual impairment of his earning capacity.” Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. See also Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009) (“two defined diagnoses constitute the same disability for purposes of section 4.14 if they have overlapping symptomatology”). However, when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different diagnostic codes with different ratings. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); see also Fanning v. Brown, 4 Vet. App. 225 (1993). The critical inquiry in making such a determination is whether any of the disabling symptomatology is duplicative or overlapping. The Veteran is entitled to a combined rating only where the symptomatology is distinct and separate. Id. The Board emphasizes it is permissible to switch diagnostic codes to more accurately reflect a claimant’s current symptoms. See Read v. Shinseki, 651 F. 3d 1296, 1302 (Fed. Cir. 2011) (holding that service connection for a disability is not severed when the situs of the disability, or the diagnostic code associated with it, is corrected to more accurately determine the benefit to which a veteran may be entitled for a service-connected disability). 1. Entitlement to an initial 10 percent rating for postoperative traumatic arthritis of the right ankle The Veteran has asserted that an initial compensable rating is warranted for his service-connected right ankle condition as residuals of two in-service ankle surgeries, currently rated at zero percent from December 12, 2012 forward, under 38 C.F.R. § 4.71a, Diagnostic Code 5271. Regarding the ankle, under Diagnostic Code 5271, a 10 percent evaluation is assigned when there is “moderate” limitation of ankle motion. A maximum 20 percent rating is awarded for “marked” limitation of ankle motion. Normal range of motion for the ankle is dorsiflexion to 20 degrees and plantar flexion to 45 degrees, as set forth at 38 C.F.R. § 4.71, Plate II. While the Rating Schedule does not provide any information as to what manifestations constitute “moderate” or “marked” limitation of ankle motion, guidance can be found in VBA’s M21-1 Live Manual. Specifically, the M21-1 states that “moderate” limitation of ankle motion is present when there is less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion, which supports a 10 percent rating. In addition, “marked” limitation of ankle motion is demonstrated when there is less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion, which supports a higher 20 percent rating. See M21-1, Live Manual, Part III, Subpart iv, Chapter 4, Section A, Topic 3, Block k. Degenerative arthritis is rated under Diagnostic Code 5003. Traumatic arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. Under Diagnostic Code 5003, a 10 percent rating is assigned when there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. 38 C.F.R. § 4.71a, Diagnostic Code 5003. A 20 percent rating is warranted where there is X-ray evidence of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. Id. When limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is applied for each major joint or group of minor joints affected by limitation of motion and is to be combined, not added, under Diagnostic Code 5003. Id. Note (1) states that the 20 and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. Id. For rating purposes pertaining to arthritis, the ankle is classified as a major joint. 38 C.F.R. §4.45(f). While a review of the medical evidence of record does not reflect that the Veteran manifested either “marked” or “moderate” limitations in range of motion of his right ankle for the period on appeal, the Board finds that the Veteran is entitled to an initial 10 percent rating for his right ankle traumatic arthritis under 38 C.F.R. § 4.71a, Diagnostic Code 5010, during the appellate period. In this regard, medical treatment records reflect that during the appellate period, the Veteran was diagnosed with traumatic arthritis of the right ankle that was as least as likely as not related to his service-connected right ankle condition. In December 2015, the Veteran underwent a VA ankle examination. See December 2015 VA Ankle Conditions Disability Benefits Questionnaire (DBQ). The examiner noted that the Veteran had previously had two ankle surgeries during active service, one in 2007 and another in 2010. Id. Range of motion testing yielded dorsiflexion of zero to 20 degrees and plantar flexion of zero to 45 degrees, with no pain noted during testing. Id. Evidence of pain with weight bearing was recorded, and neither pain on palpation nor objective evidence of crepitus was noted. Id. The Veteran was also able to perform repetitive use testing with at least three repetitions, and additional loss of function or range of motion after three repetitions was not observed. Id. The Veteran’s right ankle muscle strength was rated as a 5 out of 5 on both plantar flexion and dorsiflexion, and the examiner did not note evidence of muscle atrophy. Id. Possible right ankle instability was suspected, and while no right ankle laxity was noted when compared with the Veteran’s left ankle during the conducting of the anterior drawer test, the examiner did observe right ankle laxity as compared to the left ankle on the Talar tilt test. Id. The examiner also noted that diagnostic imaging had been performed on the Veteran’s right ankle, and that the Veteran had been diagnosed with right ankle traumatic arthritis in 2015. Id. While the examination report did not document any limitation of motion of the right ankle, the examiner observed that the Veteran’s right ankle condition “negatively affect[ed] the Veteran’s ability to ambulate for prolonged periods of time without resting as well as climb[ing] ladders and stairs,” the examiner opined that the Veteran’s diagnosed traumatic arthritis of the right ankle was “as least as likely as not due to the Veteran’s s[ervice] c[onnected] right ankle condition.” Id. Given that the Veteran’s right ankle would affects the Veteran’s ability to ambulate after long periods of time without resting, the Board concludes that a 10 percent rating is warranted under the Deluca. However, the record does not show that the any additional limitations with use would result in marked or moderate limitation of motion. As such, in light of the findings reflecting right ankle traumatic arthritis confirmed by diagnostic imaging, in conjunction with no evidence of “moderate” or “marked” limitations in range of motion of the Veteran’s right ankle during the appellate period, a 10 percent initial rating under DC 5010 is granted. 2. Entitlement to an initial compensable rating for a right ankle surgical scar The Veteran has also asserted that he is entitled to an initial compensable rating for a scar on his right ankle, currently rated at zero percent from December 12, 2012 forward, under 38 C.F.R. § 4.71a, Diagnostic Code 7805. Scars may be rated under DC 7804, which provides for a 30 percent rating for five or more scars that are unstable or painful, a 20 percent rating for three or four scars that are unstable or painful, and a 10 percent rating for one or two scars that are unstable or painful. 38 C.F.R. § 4.118. Note 1 provides that an unstable scar is one with frequent loss of covering of skin over the scar. Note 2 provides that if a scar is both painful and unstable, 10 percent may be added to the rating. 38 C.F.R. § 4.118, DC 7804. Under DC 7805, scars may also be rated based on any disabling effect(s) not considered in a rating provided under diagnostic codes 7800-04. 38 C.F.R. § 4.118, DC 7805. A review of the relevant medical evidence of record does not establish that the Veteran’s right ankle surgical scar manifested symptoms of instability or pain. In this regard, as part of the Veteran’s December 2015 VA Ankle examination, the examiner addressed the Veteran’s right ankle surgical scar. See December 2015 VA Ankle Conditions DBQ. The examiner noted that the Veteran’s right ankle surgical scar measured 7 centimeters long by 0.4 centimeters wide, and that the scar was neither painful nor unstable. Id. A review of the Veteran’s service treatment records does not reflect prior complaints regarding unstable or painful scars. The Board has considered the possibility of using other Diagnostic Codes which can potentially be applicable when evaluating a skin disability. Specifically, the Board has considered rating the scars by analogy under DC 7806 (“dermatitis and eczema”), but the measurements of the scars provided by the December 2015 VA examiner do not meet the criteria for a compensable rating – i.e., that the scars must cover at least 5 percent of the entire body or at least 5 percent of exposed areas. Moreover, a review of the medical evidence of record does not reflect that the Veteran uses medication, such as corticosteroids or other immunosuppressive drugs, to treat his scars. The Veteran has also not alleged that his scars should be rated as disfiguring, and the Board notes that disfigurement criteria are considered only when the scar at issue impacts the head, face or neck. For these reasons, the preponderance of the evidence is that, for the entire relevant appellate period, the Veteran’s service-connected surgical scar have most closely approximated the criteria for the currently assigned zero percent rating.   Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply and the claim must be denied. 38 U.S.C. § 5107(a). DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Raj, Associate Counsel