Citation Nr: 1806919 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 14-08 820 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased rating for left Achilles tendon rupture (left ankle disability), currently rated 10 percent disabling. 2. Entitlement to an increased rating for a surgical scar associated with postoperative Achilles tendon rupture (surgical scar), currently rated as noncompensable. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Maddox, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1971 to February 1993. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas which, among other things, denied a ratings increase for left Achilles tendon rupture, and granted service connection for surgical scar, evaluating it as noncompensable. In May 2013 the Veteran filed his notice of disagreement with the noncompensable rating for the surgical scar and the left ankle disability ratings increase denial, was issued a statement of the case in January 2014, and in March 2014 perfected his appeal to the Board. FINDINGS OF FACT 1. Symptoms of the Veteran's left ankle disability have more nearly approximated marked limitation of motion, but not ankylosis. 2. The Veteran's left ankle scar has been superficial and covers approximately 14 square centimeters, but has not been painful or unstable; does not cause limited motion; and does not cover an area of 39 square centimeters or more. CONCLUSIONS OF LAW 1. The criteria for an evaluation of 20 percent, but no higher, for a left ankle disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.71a, Diagnostic Code (DC) 5271 (2017). 2. The criteria for a compensable disability rating for a left ankle scar have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.118, Diagnostic Codes 7801-7805 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Left Ankle Disability The Veteran contends that his service connected left ankle disability has worsened and warrants more than a 10 percent disability rating. He stated that since surgery, he suffers constant pain, numbness, and tingling in the ankle into the left foot. The Veteran's ankle disability has been evaluated under diagnostic code (DC) 5271. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. 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. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." Hart v. Mansfield, 21 Vet. App. 505 (2008). In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Under DC 5271, ankle disability with moderate limitation of motion warrants a ten percent rating. A 20 percent rating is assigned for marked limitation of motion. 38 C.F.R. § 4.71a, DC 5271. Standard range of ankle dorsiflexion is from zero to 20 degrees, and plantar flexion from zero to 45 degrees. See 38 C.F.R. § 4.71, Plate II. The terms "slight," "moderate," and "marked" are not defined in the 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," and all evidence must be evaluated in deciding rating claims. 38 C.F.R. § 4.6. In March 2012, a Disabilities and Benefits Questionnaire (DBQ) examination was provided which noted that the Veteran's left foot had decreased range of motion with dorsiflexion to 10 degrees; and flexion to 25 degrees. No additional limitations were noted with 3 repetitions of movement during the examination that were related to pain, fatigue, incoordination, weakness, or lack of endurance. The examiner noted that the right foot evidenced normal range of motion. In May 2012, the same examiner opined in another DBQ that the mild degenerative joint disease is less likely as not (less than a 50 percent probability) progressions of the service connected left Achilles tendon rupture as it is noted on x-ray of the Veteran's feet that his mild degenerative joint disease is bilateral. The examiner thus concluded that the mild degenerative joint disease is more likely related to the Veteran's age. April 2013 private treatment records indicate that the Veteran complained of left lower leg and foot numbness paresthesia. A July 2014 DBQ indicated that the Veteran's suffered numbness and tingling which he treated with over the counter medication; did not report flare ups; did not report functional loss or impairment of the ankle; and noted that the Veteran's abnormal range of motion was of no clinical significance explaining that the range of motion was normal considering the Veteran's body and age. The Veteran was able to perform repetitive-use testing and the examination report noted no additional change in range of motion after repetitive testing for either ankle. The examination report indicated no pain in range of motion movements on active, passive, or repetitive use testing; no pain when the joint was used in weight-bearing or non weight-bearing; no localized tenderness or pain on palpation of joints or soft tissue; and no functional loss during flare-ups or when the joint is used repeatedly over a period of time. The Veteran displayed normal muscle strength in the left ankle; no muscle atrophy; and no ankylosis, instability or dislocation. There was no evidence of crepitus and the examiner opined that the Veteran's condition did not impact his ability to perform any type of occupational task. The examiner noted that the Veteran had a scar related to his left ankle disability which measured 7 cm by 2 cm which was not painful or unstable; did not have a total area equal to or greater than 39 square cm; and was not located on the head, face or neck. Based on the foregoing, the Board finds that the Veteran's left ankle disability most closely approximates marked limitation of motion. The March 2012 DBQ noted that the Veteran had decreased range of motion with dorsiflexion to 10 degrees, and flexion to 25 degrees, substantially less than a normal range of motion. While range of motion was somewhat greater on the July 2014 examination, the Board finds that the overall disability picture of the Veteran's left ankle has more nearly approximated marked limitation of motion warranting a 20 percent rating. The Board has considered whether higher ratings available under DC 5270 are warranted. However, neither the Veteran's lay statements nor the medical evidence of record indicate that the Veteran suffers ankylosis or analogous symptoms. The July 2014 DBQ specifically found that the Veteran's left ankle disability provided no evidence of muscle atrophy, ankylosis, instability or dislocation, and there were no such symptoms noted in the March 2012 DBQ. The evidence thus reflects no ankylosis or other symptoms warranting a rating higher than 20 percent under any potentially applicable diagnostic code. For the foregoing reasons, the Board finds that a rating increase of 20 percent, but no higher, for left ankle disability is warranted. As the preponderance of the evidence is against a rating higher than 20 percent, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. II. Surgical Scar The Veteran's surgical scar is evaluated under DC 7805. As an initial matter, the Board notes that Diagnostic Codes 7801-7805 (for scars) were revised effective October 23, 2008. The regulatory changes pertaining to the rating of scars apply only to applications received by VA on or after October 23, 2008, or if the Veteran requests review under the clarified criteria. See 73 Fed. Reg. 54708 (Sept. 23, 2008). As the Veteran's application for in increased rating was received in November 2010, the revised criteria are applicable. Under DC 7805, scars, including linear scars, and other effects of scars, are to be evaluated under DC 7800-7802 and 7804. In addition, any disabling effect(s) not considered in a rating provided under DC 7800-7804 is to be evaluated under an appropriate diagnostic code. As a preliminary matter, the Board notes that the Veteran's scar is located on his left ankle. As such, DC 7800 (scars of the head, face, or neck) is not applicable. Under DC 7801, scars of other than the head, face, or neck that are deep or cause limited motion warrant a 10 percent rating when involving an area or areas exceeding 6 square inches (39 sq. cm.); warrant a 20 percent rating when involving an area or areas exceeding 12 square inches (77 sq. cm.); warrant a 30 percent rating when involving an area or areas exceeding 72 square inches (465 sq. cm.); and warrant a 40 percent rating when involving an area or areas exceeding 144 square inches (929 sq. cm.). Under DC 7802, scars other than head, face, or neck that are superficial and that do not cause limited motion warrant a rating of 10 percent when involving an area of 144 square inches (929 sq. cm.) or greater. Under DC 7804, one or two scars that are unstable or painful warrant a 10 percent rating; three or four scars that are unstable or painful warrant a 20 percent rating; and five or more scars that are unstable or painful warrant a 30 percent rating. There is no evidence of record for the entire period on the appeal that the Veteran's surgical scar was painful or unstable; involved an area of 929 sq. cm. or greater; or was deep or caused limited motion and exceeded an area of 39 sq. cm or greater. To the contrary, the July 2014 DBQ noted that the scar was not located on the head, neck or face; was not painful or unstable; and measured 7 cm by 2 cm. Therefore, the Board finds that a compensable rating for the surgical scar under the applicable diagnostic codes is not warranted. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. The Board has considered the Veteran's claims and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (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). ORDER An increased rating of 20 percent, but no higher, for left Achilles tendon rupture, is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to a compensable rating for a surgical scar associated with postoperative Achilles tendon rupture is denied. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs