Citation Nr: 1806964	
Decision Date: 02/02/18    Archive Date: 02/14/18

DOCKET NO.  98-19 647	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1.  Entitlement to service connection for a dental disability for compensation purposes.

2.  Entitlement to an increased rating in excess of 20 percent for a left ankle disability.

3.  Entitlement to a higher initial rating in excess of 0 percent for a left ankle scar.

4.  Entitlement to an effective date prior to July 6, 2014, for entitlement to Dependency and Indemnity Compensation (DIC).


REPRESENTATION

Appellant represented by:	The American Legion

ATTORNEY FOR THE BOARD

T. M. Gillett, Counsel


INTRODUCTION

The Veteran served on active duty from January 1967 to June 1989.  The Veteran died in April 2012.  The appellant is the surviving spouse, who has been substituted for the deceased Veteran for the claims for increased ratings for a left ankle disability and a left ankle scar; and service connection for a dental disability; and who is appealing the denial of her own claim for an earlier effective date for DIC benefits.  

These matters come before the Board of Veterans' Appeals (Board) on appeal from October 2002, February 2003, and November 2006 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia; and an August 2014 rating decision from the RO in Philadelphia, Pennsylvania.  

In December 2011, the Board remanded the claims on appeal and an additional claim for service connection for an eye disability to the Agency of Original Jurisdiction for development.  An April 2012 rating decision established service connection for an eye disability.  As the April 2012 rating decision fully granted the claim for service connection for eye disability, that claim is no longer on appeal. 

The issue of an entitlement to an earlier effective date for DIC benefits is REMANDED to the Agency of Original Jurisdiction.



FINDINGS OF FACT

1.  For the rating period on appeal prior to July 15, 2011, the Veteran's left ankle disability symptomatology did not more nearly approximate impairment of the tibia and fibula with marked ankle disability symptomatology.  

2.  As of July 15, 2011, the Veteran's left ankle disability more nearly approximated impairment of the tibia and fibula with marked ankle disability symptomatology, but did not more nearly approximate nonunion of the tibia and fibula with loose motion, requiring the use of an ankle brace.  

3.  For the entire initial rating period, the Veteran's left ankle scar was noted to be superficial, nonpainful, and stable; did not cause any limitation of function, was not noted to be poorly nourish or exhibiting repeated ulceration; and did not cover an area measuring 144 square inches (929 square centimeters).

4.  The Veteran did not have a dental disability for which compensation could be authorized.


CONCLUSIONS OF LAW

1.  For the rating period on appeal prior to July 15, 2011, the criteria for a rating in excess of 20 percent for a left ankle disability were not met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5262 (2017).

2.  As of July 15, 2011, but not earlier, the criteria for a rating of 30 percent, but not greater, for a left ankle disability have been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5262 (2017).

3.  For the entire rating period, the criteria for a higher initial rating in excess of 0 percent for a left ankle scar have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 3.102, 3.321, 4.3, 4.118, Diagnostic Code 7804 (prior to August 30, 2002, and effective August 30, 2002).

4.  The Veteran was not shown to have a dental condition that was incurred in or aggravated by service for VA disability compensation purposes.  38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107, 1712(b) (2012); 38 C.F.R. §§ 3.381, 3.303, 4.150 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The appellant substituted for the deceased Veteran for the claims for increased ratings for a left ankle disability and a left ankle scar; and service connection for a dental disability.  VA will send notice under 38 U.S.C. § 3.159(b) to the substitute only if the required notice was not sent to the deceased claimant or if the notice sent to the deceased claimant was inadequate.  38 C.F.R. § 3.1010(f)(1) (2017).  The Board finds adequate notice was sent.

VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim.  The notice must:  (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.  38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.159 (2017); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  If VA does not provide adequate notice of any element necessary to substantiate the claim or if there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from any notice error.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).  

The Board finds that any defect with regard to the timing or content of the notice issued to the Veteran was harmless because of the thorough and informative notices provided to the Veteran, and because the Veteran had a meaningful opportunity to participate effectively in the processing of the claims with an adjudication of the claims by the RO subsequent to receipt of the required notice.  The record does not show prejudice to the Veteran, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication.  Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006).  

The Veteran neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing an error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  Thus, VA satisfied its duty to notify the Veteran and had satisfied that duty prior to the most recent RO adjudication of the issues, which occurred in the April 2012 supplemental statement of the case.  Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran allowed a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless).  

The Board also finds that the duty to assist requirements have been fulfilled.  All relevant, identified, and available evidence has been obtained.

VA has obtained VA medical examination reports, which provide probative evidence regarding the severity of the ankle disability and the etiology of the Veteran's claimed dental disability.  

In April 2007, October 2009, and December 2011 Remands, the Board requested the issuance of a statement of the case regarding the claims for increased ratings for a left ankle disability and a scar; that all outstanding VA treatment records be obtained; that outstanding records from the Social Security Administration (SSA) be obtained; and that examinations be conducted to determine the severity of a left ankle disability and the etiology of the claimed dental disability.  The requested development has been completed.  The Board finds substantial compliance with the Board Remand requests.  Stegall v. West, 11 Vet. App. 271 (1998); Dyment v. West, 13 Vet. App. 141 (1999).

Thus, the Board finds that VA has satisfied the duty to assist.  No further notice or assistance to the appellant is required to fulfill VA's duty to assist in development.  Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Increased Ratings

Disability ratings are determined by the application of a schedule of ratings that is based on average impairment of earning capacity.  38 U.S.C. § 1155 (2012).  Percentage ratings are determined by comparing the manifestations of a particular disability with the requirements contained in VA's Schedule for Rating Disabilities.  38 C.F.R. Part 4 (2017).  The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from a disease or injury and the residual conditions in civilian occupations.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017).

If two ratings are potentially applicable, 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 (2017).  In view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified.  38 C.F.R. § 4.21 (2017).  It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent with the facts shown in every case.  Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran.  38 C.F.R. §§ 3.102, 4.3 (2017).

A Veteran's entire history is to be considered when assigning disability ratings.  38 C.F.R. § 4.1 (2017).  Separate ratings can be assigned for separate periods of time during the claim period based on the facts found.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).   

Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one disability is not duplicative of, or overlapping with, the symptomatology of the other disability.  Esteban v. Brown, 6 Vet. App. 259 (1994).  

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 portrays the anatomical damage and the functional loss with respect to all of these elements.  In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness.  DeLuca v. Brown, 8 Vet. App. 202 (1995). 

The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated innervation, or other 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. § 4.40 (2017).  Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities.  38 C.F.R. § 4.45 (2017).  Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint.  38 C.F.R. § 4.59 (2017); Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis).  However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body.  Mitchell v. Shinseki, 25 Vet. App. 43 (2011).

Left Ankle Disability

The Veteran underwent an in-service operation requiring an open reduction and screw fixation of a fractured left fibula.  During the entire pendency of the appeal, the Veteran's left ankle disability has been rated under Diagnostic Code 5010-5262 for limited motion of the ankle.  A hyphenated diagnostic code is used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned.  The additional code is shown after the hyphen.  The hyphenated diagnostic code in this case indicates that degenerative joint disease of the ankle, related to trauma, substantiated by X-ray findings, under Diagnostic Code 5010, is the service-connected disability, whereas the residual disability to which the Veteran's service-connected arthritis is rated by analogy is malunion of the tibia and fibula, with a disability of the ankle, which is rated under Diagnostic Code 5262.  38 C.F.R. § 4.71a (2017).

Degenerative joint disease of the ankle is rated under Diagnostic Code 5010.  Diagnostic Code 5010 directs that traumatic arthritis substantiated by X-ray findings should be rated as degenerative arthritis under Diagnostic Code 5003.  Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate codes for the specific joint or joints involved.  If the limitation of motion is noncompensable, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under Diagnostic Code 5003.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  38 C.F.R. § 4.71a (2017).

In the absence of limitation of motion, a 20 percent rating is assigned for X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations.  A 10 percent rating is assigned for X-ray evidence of involvement of two or more major joints or two or more minor joint groups.  Ratings under Diagnostic Code 5003 cannot be combined with rating for limitation of motion of the same joint.  38 C.F.R. § 4.71a, Diagnostic Code 5003 (2017). 

Under Diagnostic Code 5262, malunion of the tibia and fibula with slight knee or ankle disability warrants a 10 percent rating.  Malunion of the tibia and fibula with moderate knee or ankle disability warrants a 20 percent rating.  Malunion of the tibia and fibula with marked knee or ankle disability warrants a 30 percent rating.  Nonunion of the tibia and fibula with loose motion requiring a brace warrants a 40 percent rating.  38 C.F.R. § 4.71a, Diagnostic Code 5262 (2017).  

With regard to Diagnostic Code 5262, the Board initially notes that the medical evidence does not specifically indicate that the Veteran had malunion of the tibia and fibula, as required for a rating under those criteria.  However, the medical evidence of record shows that the original fracture sustained during service resulted in a degenerative condition of the left ankle.  Significantly, in a May 2002 VA X-ray report, a VA examiner reported finding extensive posttraumatic remodeling of the distal left fibula with no associated soft tissue or aggressive periosteal reaction to suggest a destructive process, and degenerative changes present in multiple facets.  As the Veteran experienced an ankle fracture during service and X-rays showed degenerative changes in the ankle, the Board will resolve reasonable doubt in favor of the Veteran and conclude that the left ankle disability included disability commensurate with malunion of the tibia and fibula.  Therefore, the Board finds that Diagnostic Code 5262 is for potential application.  38 C.F.R. § 4.71a, Diagnostic Code 5262 (2017).  

Reviewing the evidence, in a May 2002 VA medical examination report, the Veteran reported walking with a limp due to the ankle disability.  The Veteran described experiencing pain, swelling, stiffness, inflammation, instability, locking, and abnormal motion of the ankle.  The Veteran reported having constant symptoms of a "horrible bone condition," occurring daily, lasting 10 to 20 minutes, exacerbated by overuse and ameliorated by ibuprofen.  The Veteran stated that due to the ankle disability and service-connected foot disabilities, he could brush his teeth, dress, shower, walk, drive a car, shop, and take out the trash.  He had difficulty showering, walking, and shopping.  He could not push a lawnmower, climb stairs, or garden.  The Veteran reported having worked as a housekeeper for the previous seven years.

On examination, the VA examiner noted that the Veteran walked with a slight limp, favoring the left ankle.  Range of motion testing of the ankle was reported as dorsiflexion to 15 degrees, with pain starting at 0 degrees; and plantar flexion to 45 degrees, with pain starting at 0 degrees.  The examiner indicated that pain was the only factor affecting the Veteran's range of motion.  The examiner reported finding no evidence of fatigue, weakness, lack of endurance, or incoordination of the ankle.  The examiner diagnosed status post open reduction of a fracture of the left ankle with residuals of degenerative changes. 

In an April 2003 VA treatment record, the Veteran reported experiencing difficulty walking due to left ankle pain.  The examiner indicated that the Veteran experienced mild tenderness with motion of the ankle, but was able to achieve full flexion and extension of the joint.  The examiner noted no edema.  The examiner diagnosed left ankle tendinitis, prescribed ibuprofen, and advised the Veteran to wear an ankle brace with comfortable shoes.

In an October 2003 VA treatment record, the Veteran indicated that his left ankle gave out at times and stated that he wore an ankle brace.    

In a May 2004 statement, the Veteran indicated that he was unable to walk or use his legs due to a surgical procedure performed on his right vertebrae.  

In a January 2005 Social Security Administration (SSA) examination, the Veteran reported having diffuse weakness of the arms, hips, and back.  Upon testing, the examiner noted that the Veteran's range of motion of the left ankle was normal.  Upon X-ray examination, the examiner noted degenerative disc disease of the lumbar spine.  The examiner diagnosed osteoarthritis and hypertension.  

In a July 2006 decision, SSA granted the Veteran's claim for disability benefits due a primary diagnosis of disorders of the back and a secondary diagnosis of essential hypertension.  

In a January 2009 written statement, the Veteran wrote that VA had erred in denying his claim for an increased rating for a left ankle disability, because VA had not considered important evidence.  Specifically, the Veteran claimed that VA had failed to note the October 1989 rating decision that granted service connection for an ankle disability, in which a VA adjudicator stated that the Veteran had injured his ankle during service.  Moreover, the Veteran contended that VA was wrong in making its decision because it did not consider a February 1991 vocational assessment in which an examiner had stated that the Veteran would be functionally limited due to the ankle disability.  

In a July 15, 2011, written statement, the Veteran stated that his ankle disability had worsened.  The Veteran reported experiencing severe limitation in range of motion of the ankle, and indicated that limitation interfered with his daily activities.  The Veteran stated that it was very painful to walk and that he walked with a limp.

At a December 2011 VA examination, the Veteran stated that he worked for 16 years at the VA Medical Center in Atlanta, either performing carpet maintenance or working as a housekeeper.  He indicated that, in 2004, while lifting a wheelchair, he pulled his back and had to have back surgery.  He indicated that the pain moved down the left leg.  He stated that he currently had three types of left leg pain.  He reported experiencing ankle pain with occasional swelling, pain in the left toes, and pain from the left foot to the hip.  The Veteran stated that he could walk a block without help.  He indicated being unable to exercise.  The Veteran stated that he had to be careful how he slept due to the position of the ankle.  He also indicated that the ankle sometimes gave way.  The Veteran denied having any flare-ups of ankle disability symptomatology.  

On examination, the VA examiner noted that the ankle was not swollen.  On range of motion testing, the examiner reported that dorsiflexion was to 5 degrees on the left, with no evidence of painful motion; and plantar flexion was to 25 degrees, with no evidence of pain upon motion.  The examiner indicated that the Veteran did not exhibit any additional functional loss or limitation of motion upon repetitive testing.  The examiner stated that the left ankle disability would cause "less movement than normal" and occasional swelling of the ankle.  The examiner indicated that the ankle was not painful or tender, and was stable upon testing.  The examiner further indicated that the Veteran did not have ankylosis of the ankle.  The examiner stated that the Veteran used a wheelchair occasionally and a walker regularly.  The examiner stated that the Veteran used the wheelchair due to the ankle disability and a nonservice-connected low back disability.  The examiner also indicated that the Veteran did not have a functional impairment of the left lower extremity such that no effective functions remained other than that which would be equally well served by an amputation.  The examiner indicated that X-rays showed that that Veteran had degenerative arthritis of the left ankle, but indicated no other significant ankle disabilities.  The examiner stated that the Veteran had been unable to work since 2004 due to both the ankle disability and a nonservice-connected low back disability.  The examiner stated that there had been some progression of the left ankle disability since the previous examination.  However, the examiner stated that the Veteran felt pain symptomatology in the back, left toes, and left leg.  The examiner stated that pain was not associated with the ankle disability.  

For the increased rating period prior to July 15, 2011, the Board finds that the Veteran's left ankle disability symptomatology did not more nearly approximate malunion of the tibia and fibula with a marked ankle disability required for a next higher 30 percent rating under Diagnostic Code 5010-5262.  38 C.F.R. § 4.71a (2017).  

In the May 2002 VA medical examination report, a VA examiner reported that the Veteran displayed normal plantar flexion and slightly limited dorsiflexion, limited to 15 degrees out of a possible 20 degrees.  The examiner indicated that the Veteran experienced pain throughout the range of motion.  In an April 2003 VA treatment record, a VA examiner indicated that the Veteran experienced mild tenderness with motion of the ankle, but was able to achieve full flexion and extension of the joint.  In a subsequent January 2005 SSA examination report, an examiner indicated that the Veteran had normal range of motion of the ankle without pain.  Although the Veteran was noted to have experienced pain throughout motion of the ankle in both May 2002 and April 2003, on testing, the Veteran still displayed full dorsiflexion and, at worst, nearly full plantar flexion, despite the pain.  There is no objective evidence that this painful motion resulted in additional limited range of motion or other functional impairment.  Pain, by itself, throughout a joint's range of motion does not constitute a functional loss entitling a claimant to a higher rating under VA regulations that evaluate disability based upon range of motion loss in the musculoskeletal system.  Mitchell v. Shinseki, 25 Vet. App. 43 (2011).  

In the April 2003 VA treatment record, the Veteran reported having pain on walking that examiners found could be relieved by ibuprofen and the use of a brace.  In an October 2003 VA treatment record, the Veteran reported occasional giving way of the ankle.  The Board notes that the records do not contain any notation indicating that the Veteran's ankle was unstable.  However, even if the Veteran had experienced a slight degree of instability, the treatment records for the increased rating period prior to July 15, 2011, contain objective findings indicating that the Veteran's ankle disability was, at worst, moderate, thereby more nearly approximating the symptomatology contemplated by the assigned 20 percent rating under Diagnostic Code 5010-5262.  38 C.F.R. § 4.71a (2017).

In a January 2009 written statement, the Veteran wrote that VA had erred in denying his current claim for an increased rating for a left ankle disability, because VA had not considered either the October 1989 rating decision that granted service connection for an ankle disability or a February 1991 vocational assessment in which an examiner stated that the Veteran would be functionally limited due to his ankle disability.  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.   Therefore, the findings contained in an October 1989 rating decision or a February 1991 vocational evaluation have little probative value in determining the severity of the Veteran's ankle disability as of the beginning of the current increased rating period, specifically December 1998.  Hart v. Mansfield, 21 Vet. App. 505 (2007). 

During the period prior to July 15, 2011, the Veteran made statements suggesting that his ankle disability was of greater severity than that contemplated by the currently assigned disability rating.  For example, in the May 2002 VA medical examination report, the Veteran reported having constant symptoms of the ankle disability, which he described as a bone condition.  Lay assertions may serve to support a claim by supporting the occurrence of lay-observable events or the presence of symptoms of disability subject to lay observation.  38 U.S.C. § 1153(a) (2012); 38 C.F.R. § 3.303(a) (2017); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  However, the Board finds that the competent medical evidence, offering detailed, specific determinations pertinent to the rating criteria, is the most probative evidence with regard to rating the disability.  The objective medical evidence indicates that, for the applicable period, the Veteran's left ankle disability was manifested by symptomatology more nearly approximating, at worst, malunion of the tibia and fibula with moderate, but not marked, ankle disability symptomatology.  Ankylosis and loss of use such that no function remained except that which would be equally well served with amputation and prosthesis were not shown.  Therefore, the Board finds that the Veteran's left ankle disability symptomatology did not more nearly approximate the symptomatology required for any higher rating under Diagnostic Code 5010-5262.  38 C.F.R. § 4.71a (2017).

For the increased rating period prior to July 15, 2011, the Board has considered whether the left ankle disability symptomatology more nearly approximated that of another Diagnostic Code that would allow for the assignment of a higher rating than the 20 percent rating assigned under Diagnostic Code 5010-5262.  However, the only Diagnostic Code designated for an ankle disability that would allow for a higher rating than the currently assigned 20 percent is Diagnostic Code 5270, assigned for ankle ankylosis.  The record contains no evidence indicating ankylosis of the left ankle.  Therefore, the assignment of a disability rating under that Diagnostic Code would not be appropriate.  38 C.F.R. § 4.71a, Diagnostic Code 5262 (2017).  

The Board has considered the functional impairment caused by the left ankle disability during the period prior to July 15, 2011.  The record indicates that the Veteran had pain on motion of the ankle and some limitation of motion of the ankle during that period.  The Veteran reported being unable to pursue some activities due to the ankle disability.  Those symptoms, specifically difficulties with some activities due to range of motion of the ankle limited by pain, are already contemplated by the rating assigned under Diagnostic Code 5010-5262.  38 C.F.R. § 4.71a (2017).  The preponderance of the evidence of record for the applicable period is against a finding that the Veteran experienced left ankle symptomatology more nearly approximating that required for a higher rating under any criteria, even due to flare-ups, fatigability, incoordination, or pain on movement.  38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995). 

For the increased rating period as of July 15, 2011, the Board finds that the Veteran's left ankle disability more nearly approximated a malunion of the tibia and fibula with a marked ankle disability required for a next higher 30 percent rating under Diagnostic Code 5010-5262.  38 C.F.R. § 4.71a (2017).  

In a July 15, 2011, written statement, the Veteran stated that he experienced severe limitation in range of motion of the ankle.  In a subsequent December 2011 VA medical examination report, a VA examiner noted that dorsiflexion was to five degrees on the left, with no evidence of painful motion; and plantar flexion was to 25 degrees, with no evidence of pain upon motion.  The Board finds that the loss of motion of the ankle during the period as of July 15, 2011, to include nearly all loss of dorsiflexion, more nearly approximated malunion of the tibia and fibula with a marked ankle disability.  Therefore, for the period as of July 15, 2011, the Board finds that the Veteran's left ankle disability more nearly approximated the criteria for a next higher 30 percent rating under Diagnostic Code 5010-5262.  38 C.F.R. § 4.71a (2017).  

For the same period, the Board finds that the Veteran's left ankle disability symptomatology did not more nearly approximate the nonunion of the tibia and fibula with loose motion, requiring the use of a brace, required for a higher 40 percent rating under Diagnostic Code 5010-5262.  Although there is evidence that the Veteran's used an ankle brace occasionally, there is no evidence suggesting the present of a nonunion of the tibia and fibula with loose motion during the entire increased rating period.  

For the increased rating period as of July 15, 2011, the Board has considered whether the Veteran's left ankle disability symptomatology more nearly approximated that of another Diagnostic Code that would allow for the assignment of a higher rating than the 30 percent rating assigned under Diagnostic Code 5010-5262.  However, the only Diagnostic Code assigned for an ankle disability that would allow for a higher rating than the currently assigned 30 percent is Diagnostic Code 5270, assigned for ankle ankylosis.  The record contains no evidence indicating ankylosis of the left ankle.  Therefore, the assignment of a disability rating under that Diagnostic Code would not be appropriate.  38 C.F.R. § 4.71a, Diagnostic Code 5262 (2017).  Furthermore, the evidence does not show loss of function of the ankle such that the Veteran would be equally well served by amputation with use of a prosthesis.

The Board has considered the functional impairment caused by the left ankle disability during the period as of July 15, 2011.  The record indicates that the Veteran had severe limitation of motion of the ankle, resulting in difficulty walking.  The Veteran also reported being unable to pursue some activities due to the ankle disability.  The Veteran indicated that he used a wheelchair, but indicated that was also due to a back disability.  Those symptoms, specifically difficulties with activities due to range of motion of the ankle are already contemplated by the rating assigned under Diagnostic Code 5010-5262.  38 C.F.R. § 4.71a (2017).  The record for the applicable period contains no probative lay or medical evidence indicating that the Veteran experienced left ankle symptomatology more nearly approximating that required for a higher rating under any criteria, even due to flare-ups, fatigability, incoordination, or pain on movement.  38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995). 

The Board has considered whether the Veteran is entitled to an additional separate rating for the service-connected left ankle disability under any remaining Diagnostic Code.  However, the record contains no evidence indicating ankylosis of any form in the ankle, malunion of the os calcis or astragalus, or astragalectomy.  Therefore, the assignment of a disability rating under any of the Diagnostic Codes assigned for those disabilities would not be appropriate.  38 C.F.R. § 4.71a, Diagnostic Codes 5270, 5272, 5273, 5274 (2017).  

Based on the above evidence, for the increased rating period prior to July 15, 2011, the Board finds that entitlement to an increased rating in excess of 20 percent for a left ankle disability is not warranted.  For the increased rating period as of July 15, 2011, the Board finds that entitlement to an increased rating of 30 percent, but not greater, for a left ankle disability is warranted.  The Board finds that the preponderance of the evidence is against the assignment of any higher rating.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017).

The Board has considered whether referral for consideration of extraschedular ratings is warranted for the Veteran's left ankle disability.  In exceptional cases, an extraschedular rating may be assigned.  38 C.F.R. § 3.321 (2017).  The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Therefore, initially, there must be a comparison between the level of severity and symptomatology of a veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability.  Thun v. Peake, 22 Vet. App. 111 (2008).

The Board finds the evidence in this case does not show such an exceptional disability picture that the available schedular ratings assigned for the service-connected left ankle disability are inadequate.  A comparison between the levels of severity and symptomatology of the Veteran's disabilities with the established criteria found in the Rating Schedule shows that the rating criteria reasonably describe the Veteran's disability levels and symptomatology.  The Veteran's signs and symptoms, and their resulting impairment on the Veteran's occupational and social activities, are contemplated by the rating schedule.  Therefore, those criteria are not inadequate.  38 C.F.R. § 3.321(b) (2017); Thun v. Peake, 22 Vet. App. 111 (2008).  

For the increased rating periods both prior to and as of July 15, 2011, all the symptomatology and impairment caused by the Veteran's left ankle disability is specifically contemplated by the schedular rating criteria and no referral for extraschedular consideration is required.  The schedular rating criteria at Diagnostic Code 5262 provide for disability ratings based on a combination of history, symptoms, and clinical findings.  In this case, considering the lay and medical evidence, during that period, the Veteran's left ankle disability was manifested by symptoms more nearly approximating malunion of the tibia and fibula, with moderate limitation of motion prior to July 15, 2011; and marked limitation of motion thereafter.  38 C.F.R. § 4.71a (2017).  

In the absence of evidence that the rating criteria are inadequate to rate the Veteran's left ankle disabilities, the Board finds referral for consideration of the assignment of extraschedular ratings is not warranted.  38 C.F.R. 3.321(b)(1) (2017); Bagwell v. Brown, 9 Vet. App. 237 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995).

Left Ankle Scar

The Veteran asserts entitlement to a higher initial rating in excess of 0 percent for a scar of the left ankle resulting from an in-service surgical procedure on the left ankle.  Throughout the entire rating period, the Veteran's scar was rated under Diagnostic Code 7804, the criteria for rating painful scars in effect prior to August 30, 2002.  38 C.F.R. § 4.118 (2001).

Reviewing the applicable regulations, under the rating criteria in effect prior to August 30, 2002, scars, other than of the head, face, or neck and which were not the result of burns, were rated under Diagnostic Codes 7803 to 7805.  Under Diagnostic Code 7803, a 10 percent rating was assigned for superficial scars that were poorly nourished, with repeated ulceration.  38 C.F.R. § 4.118, Diagnostic Code 7803 (2001).  Under Diagnostic Code 7804, a 10 percent rating was assigned for superficial scars that were tender and painful on objective demonstration.  38 C.F.R. § 4.118, Diagnostic Code 7804 (2001).  Under Diagnostic Code 7805, other types of scars were to be rated based on limitation of function of the part affected.  38 C.F.R. § 4.118, Diagnostic Code 7805 (2001).

Under the version of the regulations applicable as of August 30, 2002, scars, other than of the head, face, or neck, were rated under Diagnostic Codes 7801 to 7805.  Under Diagnostic Code 7801, which governed scars, other than the head, face, or neck, that were deep or caused limited motion, a 10 percent rating is assigned when the area or areas exceed six square inches (39 square centimeters).  A 20 percent rating is assigned when the area or areas exceed 12 square inches (77 square centimeters).  38 C.F.R. § 4.118, Diagnostic Code 7801 (2004).  Scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, are to be separately rated and combined in accordance with 38 C.F.R. § 4.25.  A deep scar is one associated with underlying soft tissue damage.  38 C.F.R. § 4.118, Diagnostic Code 7801, Note (1), (2) (2004). 

Under Diagnostic Code 7802, which governed scars other than the head, face, or neck, that were superficial and did not cause limited motion, a 10 percent rating is assigned for area or areas of 144 square inches (929 square centimeters) or greater.  38 C.F.R. § 4.118, Diagnostic Code 7802 (2004).  Scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, were separately rated and combined in accordance with 38 C.F.R. § 4.25.  A superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7802, Note (1), (2) (2004). 

Under Diagnostic Code 7803, a 10 percent rating is assigned for scars that are superficial and unstable.  38 C.F.R. § 4.118, Diagnostic Code 7803 (2004).  An unstable scar is one where, for any reason, there was frequent loss of covering of skin over the scar.  A superficial scar is one not associated with underlying soft tissue damage.  38 C.F.R. § 4.118, Diagnostic Code 7803, Note (1), (2) (2004). 

Under Diagnostic Code 7804, a 10 percent rating is assigned for scars that are superficial and painful on examination.  38 C.F.R. § 4.118, Diagnostic Code 7804 (2004).  A superficial scar is one not associated with underlying soft tissue damage. A 10 percent rating is assigned for a scar on the tip of a finger or toe even though amputation of the part would not warrant a compensable rating.  38 C.F.R. § 4.118, Diagnostic Code 7804, Note (1), (2) (2004). 

The Board notes that the Diagnostic Codes used for rating scars were again revised in September 2008, but the 2008 revisions are only effective for claims filed on or after October 23, 2008.

Reviewing the evidence, in a May 2002 VA medical examination report, the VA examiner noted a scar measuring 16.5 centimeters and traversing the malleolus laterally.  The examiner reported that the scar was well-healed and not complicated.

In a July 2011 statement, the Veteran stated that he had one or two scars resulting from his service-connected left ankle disability that were painful and caused him to walk with a severe limp.  

In a December 2011 VA medical examination report, provided to determine the severity of the ankle disability, a VA examiner reported that the Veteran had a longitudinal scar, measuring eight inches in length, on the lateral aspect that was well-healed, mobile, non-tender, and without keloid formation.  The examiner indicated that the scar was not painful, unstable, or occupying a total area greater than 39 square centimeters.  

In a December 2011 VA scar examination report, a VA examiner reported that the Veteran had a single scar on the left lateral lower leg from below the knee to the ankle.  The examiner indicated that the scar measured 17 centimeters by one centimeter.  The examiner indicated that the scar did not result in any limitation of function.

The Board finds that the Veteran's scar symptomatology did not more nearly approximate the criteria for a higher initial rating in excess of 0 percent under any potentially applicable Diagnostic Codes in effect prior to August 30, 2002.  Under the version of Diagnostic Code 7804 in effect during that period, a 10 percent rating was warranted for scars that were superficial, tender, and painful on objective demonstration.  The record shows that the Veteran's scar was superficial during the entire rating period.  However, the record contains no objective evidence indicating that it was tender or painful on objective demonstration.  As the record contains no evidence indicating that the scar was poorly nourished or exhibited repeated ulceration, a rating under Diagnostic Code 7803 is not applicable.  In a July 2011 statement, the Veteran stated that his scar limited the function of his ankle and caused him to walk with a severe limp.  Credible evidence indicating that the scar limited the function of the ankle could conceivably have warranted a compensable rating under Diagnostic Code 7805, using an appropriate Diagnostic Code for limitation of function.  However, in two objective VA medical examinations, VA examiners indicated that the Veteran's single scar was completely asymptomatic.  To the extent there was limitation of function of the joint, that has already been separately rated and to assign another rating would constitute pyramiding, or compensating the same disability under different Diagnostic Codes, which is prohibited.  38 C.F.R. § 4.14 (2017).  

Here, the Board finds that the competent medical evidence, offering detailed, specific determinations pertinent to the rating criteria, is the most probative evidence with regard to rating the nature of the scar.  Therefore, the Board finds that the Veteran's scar symptomatology did not more nearly contemplate that required for a compensable rating under Diagnostic Code 7805.  Therefore, the Board finds that the Veteran's scar did not more nearly approximate the criteria for a higher initial in excess of 0 percent under any potentially applicable Diagnostic Codes in effect prior to August 30, 2002.  38 C.F.R. § 4.118, Diagnostic Codes 7803, 7804, 7805 (2001).

The Board finds that the Veteran's scar symptomatology did not more nearly approximate the criteria for a higher initial rating in excess of 0 percent under any potentially applicable Diagnostic Codes in effect from August 30, 2002, to October 23, 2008.  Under the version of Diagnostic Code 7804 in effect during that period, a 10 percent rating was warranted for scars that were superficial and painful on examination.  The record shows that the scar was superficial during the entire rating period.  However, the record contains no evidence indicating that it was painful on examination.  Under Diagnostic Code 7801, in effect at the time, a compensable rating could be provided for a scar that was deep or caused limited motion.  The record contains no evidence suggesting that the Veteran's scar was deep and, as noted previously, the most probative evidence indicates that it did not cause limitation of motion.  In any event, any limitation of motion has already been assigned a separate rating and additional rating would constitute prohibited pyramiding.  38 C.F.R. § 4.14 (2017).  As the record contains no evidence indicating that the scar covered an area measuring 144 square inches (929 square centimeters) or was unstable, Diagnostic Codes 7802 and 7803 are not applicable.  Therefore, the Board finds that the Veteran's scar did not more nearly approximate the criteria for a higher initial rating in excess of 0 percent under any potentially applicable Diagnostic Codes in effect from August 30, 2002, to October 23, 2008.  38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7803, 7804 (2004). 

Therefore, for the entire rating period, the Veteran's scar symptomatology did not more nearly approximate that required for a higher initial rating under any potentially applicable Diagnostic Code.  38 C.F.R. § 4.118 (2001, 2004).  The Board finds that the preponderance of the evidence is against the assignment of a rating greater than 0 percent and the claim must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017).

The Board has considered whether referral for consideration of an extraschedular rating is warranted for the scar disability.  In exceptional cases, an extraschedular rating may be provided.  38 C.F.R. § 3.321 (2017).  The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Therefore, initially, there must be a comparison between the level of severity and symptomatology of a veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability.  Thun v. Peake, 22 Vet. App. 111 (2008).

The Board finds the evidence in this case does not show such an exceptional disability picture that the available schedular ratings assigned for the service-connected scar is inadequate.  In this instance, the scar was lacking in symptomatology, being stable, superficial, non-painful, small, and causing no limitation of function.  

In the absence of evidence that the rating criteria are inadequate to rate the Veteran's scar disability, the Board finds referral for consideration of the assignment of an extraschedular rating is not warranted.  38 C.F.R. 3.321(b)(1) (2017); Bagwell v. Brown, 9 Vet. App. 237 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995).

Dental Disability

In order to prevail on the issue of service connection, generally, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury.  Hickson v. West, 12 Vet. App. 247, 253 (1999).

As the Veteran has passed away, the Board need not consider a claim for service connection for a dental disability for treatment purposes as the provision of treatment is moot.  Under current VA regulations, compensation for a dental disability is only available for certain types of dental and oral conditions listed under 38 C.F.R. § 4.150, such as impairment of the mandible, loss of a portion of the ramus, and loss of a portion of the maxilla.  Compensation is available for loss of teeth only if such is due to loss of the substance of the body of the maxilla or mandible due to trauma or disease such as osteomyelitis, but not periodontal disease.  38 C.F.R. § 4.150 (2017).  

The Veteran's service treatment records indicate in-service dental treatment on various teeth, but contain no notation suggesting treatment for either a traumatic injury to the body of the maxilla or mandible, impairment of the mandible, loss of a portion of the ramus, loss of a portion of the maxilla, or a dental disease other than a periodontal disease.  

The Veteran's service separation form notes that Veteran was not provided with a dental examination within 90 days of separation. 

In an April 2006 written statement, the Veteran wrote that he underwent a great amount of dental treatment during service, but did not report the nature of the treatment. 

In a December 2011 VA medical examination report, a VA examiner indicated reviewing the claims file, interviewing the Veteran, and performing an examination.  Having done so, the examiner stated that the only dental disability that the Veteran had experienced was periodontal disease which resulted in tooth loss.  The examiner specifically noted that the Veteran had not experienced an in-service traumatic injury to the body of the maxilla or mandible, loss of a portion of the ramus, or loss of a portion of the maxilla.  The examiner indicated that the Veteran's current dental problems, including periodontal disease, were not related to service.  

From that evidence, the Board finds that the Veteran did not have a dental disability for which compensation can be granted.  As the preponderance of the evidence is against the claim, the claim for service connection for a dental disability for compensation purposes is denied.  38 C.F.R. § 3.102, 3.303 (2017).  As the preponderance of the evidence is against the claim, the claim must be denied.  38 U.S.C. § 5107(b) (2017); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

For the rating period on appeal prior to July 15, 2011, entitlement to a rating in excess of 20 percent for a left ankle disability is denied.  

As of July 15, 2011, entitlement to a rating of 30 percent, but not greater, for a left ankle disability is granted. 

For the entire rating period on appeal, entitlement to an initial rating in excess of 0 percent for a left ankle scar is denied.

Entitlement to service connection for a dental disability for compensation purposes is denied.  


REMAND

An August 2014 rating decision established entitlement to DIC benefits.  In October 2014, VA received a notice of disagreement, indicating disagreement with the effective date assigned for DIC benefits.  A statement of the case has not been issued in response to the October 2014 notice of disagreement.  Therefore, the appropriate Board action is to remand the issue of entitlement to an earlier effective date for DIC benefits for the issuance of a statement of the case.  Manlincon v. West, 12 Vet. App. 238 (1999).

Accordingly, that claim is REMANDED for the following action:

Issue a statement of the case on the issue of an earlier effective date for DIC benefits.  Inform the appellant of her appeal rights and that she must file a timely substantive appeal if she wants appellate review.  If the appellant perfects an appeal, return that issue to the Board.

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  38 U.S.C. §§ 5109B, 7112 (2012).



______________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs