Citation Nr: 18159388 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 14-39 992 DATE: December 19, 2018 ORDER Entitlement to an evaluation in excess of 40 percent for fracture of the right tibia with osteomyelitis, deformity, and fusion is denied. Entitlement to an increased evaluation of 20 percent for scars, status post right ankle fusion, is granted effective December 16, 2008. Entitlement to an increased evaluation of 30 percent for scars, status post right ankle fusion, is granted effective August 18, 2010. Entitlement to an evaluation in excess of 20 percent for scars, status post right ankle fusion, effective January 23, 2015, is denied. Entitlement to an evaluation in excess of 40 percent for scars, status post right ankle fusion, effective March 27, 2015, is denied. A separate 30 percent evaluation for right lower extremity scars that are deep and nonlinear is granted effective January 23, 2013. A 20 percent evaluation for right lower extremity scars that are deep and nonlinear is granted effective March 27, 2015. FINDINGS OF FACT 1. The Veteran’s fracture of the right tibia with osteomyelitis, deformity, and fusion has been manifested by ankylosis of the right ankle. 2. For the period from December 16, 2008, to August 18, 2010, the Veteran had three tender scars. 3. For the period from August 19, 2010, to January 22, 2013, the Veteran had five or more painful scars. 4. For the period from January 23, 2013, to March 26, 2015, the Veteran had one painful scar, three unstable scars, and no scars that were both painful and unstable. 5. For the period beginning March 27, 2015, the Veteran had five or more scars that were both painful and unstable. 6. For the period from January 23, 2013, to March 26, 2015, the Veteran had two deep, non-linear scars with a total area of 642 square centimeters. 7. For the period beginning March 27, 2015, the Veteran had 10 deep, non-linear scars with a total area of 401 square centimeters. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 40 percent for fracture of the right tibia with osteomyelitis, deformity and fusion have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5270. 2. For the period from December 16, 2008, to August 18, 2010, the criteria for an evaluation of 20 percent, but not higher, for scars, status post right ankle fusion, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7804. 3. For the period from August 19, 2010, to January 22, 2013, the criteria for an evaluation of 30 percent, but not higher, for scars, status post right ankle fusion, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7804. 4. For the period from January 23, 2013, to March 26, 2015, the criteria for an evaluation in excess of 20 percent for scars, status post right ankle fusion, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7804. 5. For the period beginning March 27, 2015, the criteria for an evaluation in excess of 40 percent for scars, status post right ankle fusion, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7804. 6. For the period from January 23, 2013, to March 26, 2015, the criteria for a separate evaluation of 30 percent for right lower extremity scars that are deep and nonlinear have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7801. 7. For the period beginning March 27, 2015, the criteria for an evaluation of 20 percent for right lower extremity scars that are deep and nonlinear have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7801. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from June 1989 to August 1993. These matters come before the Board of Veterans’ Appeals (Board) on appeal from April 2011 and May 2015 rating decisions. The Board acknowledges that the Veteran submitted a Rapid Appeals Modernization Program (RAMP) opt-in election form in June 2018. The current appeal had already been activated at the Board, however, and is therefore no longer eligible for the RAMP program. Accordingly, the Board will undertake appellate review of the case. The Board notes that the issue on appeal relating to the right ankle is listed as fracture of the right tibia with osteomyelitis, deformity, and fusion. The Agency of Original Jurisdiction (AOJ) improperly merged this issue with the issue of loss of use of right foot with shortening of right leg also claimed as frozen toes, which is not before the Board. Accordingly, this decision addresses only the fracture of the right tibia with osteomyelitis, deformity, and fusion. Increased Rating Disability evaluations are determined by comparing a veteran’s present symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code (DC), the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran’s entire history is reviewed when making disability ratings. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. “Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings.” Francisco v. Brown, 7 Vet. App. 55, 58 (1994) (citation omitted). VA accordingly concentrates on the evidence that establishes the state of the veteran’s disability in the period one year before the veteran files his claim through the date VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). 1. Entitlement to an evaluation in excess of 40 percent for fracture of the right tibia with osteomyelitis, deformity, and fusion In the April 2011 rating decision at issue, the AOJ continued the Veteran’s 40 percent rating for fracture of the right tibia with osteomyelitis, deformity, and fusion. The Veteran contends that a higher rating is warranted. The Veteran’s right tibia fracture with osteomyelitis, deformity, and fusion is rated under DC 5270 (Ankle, ankylosis of). This DC has a maximum rating of 40 percent for ankylosis in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion, or eversion deformity. 38 C.F.R. § 4.71a, DC 5270. Because the Veteran is currently in receipt of the maximum schedular rating for his right tibia fracture, the Board finds that entitlement to an evaluation in excess of 40 percent is not warranted. In addition, entitlement to a total disability based on individual unemployability (TDIU) is an additional element of all claims for a higher rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board finds that the Veteran’s right tibia fracture does affect his ability to work because it limits his ability to stand and walk. An August 2010 VA examination reported that the Veteran was unable to “do any prolonged standing or walking over a few minutes. He can not kneel ,squat, bend, climb up and down stairs, or walk on uneven ground or incline. He also can not do any heavy lifting or carrying.” A January 2013 VA examination also found the Veteran’s osteomyelitis impacted his ability to work because he was “unable to walk and stand for prolonged time.” A March 2015 VA examination similarly noted that the Veteran’s ankylosis of the ankle joint “causes severe pain and has complications with walking and standing.” Considering this evidence, the Board finds the Veteran is able to secure or follow a substantially gainful occupation that does not require walking, standing, heavy lifting, or heavy carrying. Such occupations include work that is primarily analytical, data entry, or conducted by telephone. The Board accordingly finds that remand is not warranted for TDIU. 2. Entitlement to an increased evaluation for scars, status post right ankle fusion, rated as 10 percent disabling prior to January 23, 2013, 20 percent disabling from January 23, 2013, to March 26, 2015, and 40 percent disabling beginning March 27, 2015 In the April 2011 rating decision, the Veteran’s scars, status post right ankle fusion, were continued at an evaluation of 10 percent. In a September 2014 rating decision, the Veteran’s evaluation for scars, status post right ankle fusion, was increased to 20 percent effective January 23, 2013. Later, in a May 2015 rating decision, the evaluation for scars, status post right ankle fusion, was increased to 40 percent effective March 27, 2015. The Veteran contends that higher ratings are warranted. The Veteran’s service-connected scars, status post right ankle fusion, were first rated as 10 percent disabling under DC 7804, which addresses scars that are unstable or painful. 38 C.F.R. § 4.118, DC 7804. Under this DC, a 10 percent disability rating is warranted for one or two scars that are unstable or painful. A 20 percent disability rating is assigned for three or four scars that are unstable or painful. A 30 percent disability rating is assigned for five or more scars that are unstable or painful. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118, DC 7804, Note (1). If one or more scars are both unstable and painful, 10 percent is to be added to the evaluation that is based on the total number of unstable or painful scars. 38 C.F.R. § 4.118, DC 7804, Note (2). The first examination within the appeals period at issue is a December 2008 VA examination. This examination noted four scars. The first two are 16 centimeter (cm) and 20 cm anterior and medial scars. These scars were described as “retracted” and “tender.” The third scar was a 7 cm by 12 cm skin graft on the medial aspect of the ankle, which was described as “tender to the touch.” Finally, a 6 cm scar over the first and fourth metatarsals was noted, although it was recorded that it was not adherent to subcutaneous structures and not tender. Resolving the reasonable doubt in the Veteran’s favor, the Board finds that tenderness in this case is a synonym for pain, and therefore the December 2008 VA examination documented three tender (or painful) scars. There was no indication that any of the scars were also unstable. Thus, the appropriate evaluation for the period beginning December 16, 2008, is 20 percent. The next available examination is an August 2010 VA examination in which four scars were identified as well as “numerous” other scars. The four scars included 1) a nonlinear scar on the upper left thigh measuring 20 cm by 11 cm that was not painful on examination, had no skin breakdown, and was superficial with no underlying tissue damage; 2) a linear 6 cm by 5 cm scar over the anterior right thigh, which was not painful on examination, had no skin breakdown, and was superficial with no underlying tissue damage; 3) a linear scar located over the suprapubic area, measuring 47 cm by 0.5 cm which was not painful, had no skin breakdown, and was a superficial scar with no underlying tissue damage; and 4) a linear scar over the right hip bone, 11 cm by 2.3 cm, which was not painful, had no skin breakdown, and was superficial with no underlying tissue damage. The August 2010 VA examination also noted a section of “numerous scars from the injury, skin graft and other scars that cannot be measured individually due to the numbers.” These “numerous” scars are described as encompassing an area 13 cm by 18.5 cm; they are described as painful on examination but there was no skin breakdown and they were superficial with no underlying tissue damage. Considering that this VA examination found there were too many scars to count, the Board resolves reasonable doubt in the Veteran’s favor and finds that these “numerous” scars encompassed at least five scars. This is supported by later VA examinations, discussed below, which found the Veteran had 10 or more total scars. Thus, the August 2010 VA examination documented five or more painful (but not unstable) scars, which corresponds to a 30 percent evaluation. The next examination is a January 2013 VA examination. The VA examination identified five linear scars ranging from 2 cm to 7 cm and two deep nonlinear scars, measuring 19 cm by 29 cm and 13 cm by 7 cm. The VA examination also noted one painful scar and three unstable scars, with a specific finding that there were no scars that were both painful and unstable. Following these results, a 20 percent evaluation is warranted for four scars that are unstable or painful. The last examination is a March 2015 VA examination. This VA examination recorded three linear scars (4 cm by 1 cm; 3.5 cm by 1 cm; and 4.5 cm by 1 cm); one superficial non-linear scar (6 cm by 1 cm); and 10 deep non-linear scars (3.5 cm by 1 cm; 4 cm by 0.5 cm; 3 cm by 1 cm; 3 cm by 1 cm; 3.5 cm by 1 cm; 3.5 cm by 1 cm; 4 cm by 2 cm; 9 cm by 3 cm; 15 cm by 4 cm; and 20 cm by 7 cm). The March 2015 VA examination also recorded that the Veteran had five or more scars that were both painful and unstable. Thus, a 40 percent evaluation is warranted from the period beginning March 27, 2015: 30 percent for five or more scars that are unstable or painful and an additional 10 percent according to Note (2) because one or more scars was both painful and unstable. This does not end the Board’s analysis, however, as new regulations for skin disabilities were enacted effective August 13, 2018. Thus, the Board must determine whether the prior regulations — as outlined above — or the new regulations provide an evaluation more favorable to the Veteran as of August 13, 2018. For DC 7804, the content of the regulation did not change. Therefore, a rating under the former regulations or the updated version results in the same evaluation. Finally, entitlement to a TDIU is an additional element of all claims for a higher rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). The record does not support a finding that the Veteran’s scars render him unable to secure or follow a substantially gainful occupation. The January 2013 VA examination noted that the Veteran’s scars impact his ability to work because they “affect[] his ankle motion.” There is no indication that the Veteran could not perform work that allows him to sit at a desk, however, such as work that was primarily analytical, data entry, or conducted by telephone. In addition, the March 2015 VA examination found the Veteran’s scars had no impact on his ability to work. Considering this evidence, the Board finds that a remand for a TDIU is not warranted. 3. Entitlement to a separate evaluation for right lower extremity scars that are deep and nonlinear As stated above, in an April 2011 rating decision the Veteran’s scars, status post right ankle fusion, were continued at an evaluation of 10 percent. In a September 2014 rating decision, the Veteran’s evaluation for scars, status post right ankle fusion, was increased to 20 percent effective January 23, 2013. Later, in a May 2015 rating decision, the evaluation for scars, status post right ankle fusion, was increased to 40 percent effective March 27, 2015. All of these evaluations were determined under DC 7804, which states in Note (3) that scars evaluated under DCs 7800, 7801, 7802, and 7805 may also receive an evaluation under DC 7804. 38 C.F.R. § 4.118. Thus, where any of those DCs apply, they must also be given an evaluation. Of the four DCs, only DC 7801 results in a compensable evaluation. Diagnostic code 7800 does not apply because it is limited to scars of the head, face, or neck. Diagnostic code 7802 does apply because there are superficial and nonlinear scars but they do not meet the minimum required area of 929 square (sq.) cm necessary for the 10 percent rating. 38 C.F.R. § 4.118, DC 7802. Diagnostic code 7805 does not apply because there are no disabling effects that are not considered by DCs 7801 and 7804. Under DC 7801, a 10 percent evaluation is warranted when the area(a) is at least 6 sq. inches (39 sq. cm) but less than 12 sq. inches (77 sq. cm). A 20 percent evaluation is assigned when the area(s) is at least 12 sq. inches (77 sq. cm) but less than 72 sq. inches (465 sq. cm). A 30 percent evaluation is assigned when the area(s) is at least 72 sq. inches (465 sq. cm) but less than 144 sq. inches (929 sq. cm). A 40 percent evaluation is assigned when the area(s) exceeds 144 sq. inches (929 sq. cm). Note (1) provides that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7801. Turning to the evidence, the December 2008 VA examination does not state whether the scars were linear, non-linear, deep, or superficial. The August 2010 VA examination noted only superficial scars. The January 2013 VA examination provided conflicting evidence, stating first that the Veteran had two deep nonlinear scars (19 cm by 29 cm and 13 cm by 7 cm, totaling 642 sq. cm) but then reporting that the Veteran had only 72 sq. cm of deep nonlinear scars on the right lower extremity. Giving the Veteran the benefit of the doubt, the Board will use the larger number — 642 sq. cm — to determine the appropriate evaluation. An area of 642 sq. cm corresponds to an evaluation of 30 percent. Thus, an evaluation of 30 percent is warranted from January 23, 2013. In the March 2015 VA examination, 10 scars were identified as deep non-linear scars, measuring 3.5 cm by 1 cm; 4 cm by 0.5 cm; 3 cm by 1 cm; 3 cm by 1 cm; 3.5 cm by 1 cm; 3.5 cm by 1 cm; 4 cm by 2 cm; 9 cm by 3 cm; 15 cm by 4 cm; and 20 cm by 7 cm. The total area of these scars is 254 sq. cm. There is also a discrepancy in this examination, in which the examination provided the listed scar sizes and then stated that the total area of deep non-linear scars was “[greater than] 400 cm2.” The Board will resolve reasonable doubt in the Veteran’s favor and apply the higher number, but because it is unclear how much greater than 400 sq. cm, the Board will use 401 sq. cm as the total area of deep non-linear scars. This corresponds to an evaluation of 20 percent. Accordingly, an evaluation of 20 percent is warranted from March 27, 2015. This does not end the Board’s analysis, however, as new regulations for skin disabilities were enacted effective August 13, 2018. Thus, the Board must determine whether the prior regulations — as outlined above — or the new regulations provide an evaluation more favorable to the Veteran as of August 13, 2018. In this case, the new regulations would not provide a different outcome. Although DC 7801 changes to encompass all scars “that are associated with underlying soft tissue damage,” there are no additional scars in the VA examinations with underlying soft tissue damage (formerly known as “deep” scars). The only scars associated with underlying soft tissue damage were the non-linear scars considered under the prior regulations in effect before August 13, 2018. In addition, there would be no change with regard to the application of DCs 7800, 7802, and 7805. Diagnostic code 7800 still applies only to scars of the head, face, and neck. Diagnostic code 7802 applies but the evidence does not show scars that are not associated with underlying soft tissue with an area of 929 sq. cm or greater. Diagnostic code 7805 does not apply because there are no disabling effects that are not considered by DCs 7801 and 7804. Finally, entitlement to a TDIU is an additional element of all claims for a higher rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). The record does not support a finding that the Veteran’s scars render him unable to secure or follow a substantially gainful occupation. The January 2013 VA examination noted that the Veteran’s scars impact his ability to work because they “affect[] his ankle motion.” There is no indication that the Veteran could not perform work that allows him to sit at a desk, however, such as work that was primarily analytical, data entry, or conducted by telephone. In addition, the March 2015 VA examination found the Veteran’s scars had no impact on his ability to work. Considering this evidence, the Board finds that a remand for a TDIU is not warranted. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD W. Ripplinger, Associate Counsel