Citation Nr: 20009729 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 19-00 464A DATE: February 6, 2020 ORDER Entitlement to a compensable rating for left ankle scars is denied. Entitlement to an increased rating in excess of 20 percent for left ankle traumatic arthritis (left ankle arthritis) is denied. Entitlement to an increased rating in excess of 40 percent for a lumbar osteoarthritis status post lumbar spine fracture L1 with intervertebral disk syndrome (lumbar osteoarthritis) is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s left ankle scars do not meet any of the rating criteria for a compensable evaluation. 2. The Veteran’s left ankle arthritis has been productive of marked limitation of motion with no evidence of ankylosis. 3. The Veteran’s lumbar osteoarthritis has not been productive of unfavorable ankylosis of the entire thoracolumbar spine, nor was the Veteran’s lumbar spine disability productive of incapacitating episodes having a total duration of at least 6 weeks in the past 12 months. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for left ankle scars scar have not been met. 38 U.S.C. § § 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.118, Diagnostic Codes (DCs) 7801 - 7805. 2. The criteria for entitlement to an increased rating in excess of 20 percent for left ankle traumatic arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.40, 4.45, 4.71a, DCs 5003, 5270 - 5271. 3. The criteria for an increased disability rating in excess of 40 percent for lumbar osteoarthritis status post lumbar spine fracture L1 with intervertebral disk syndrome have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DCs 5003, 5235, 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1970 to January 1976. Increased Ratings, Generally Disability evaluations (ratings) are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran’s favor. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505. Here, the Board finds that the Veteran’s symptoms related to his service-connected left ankle disability, left ankle scars, and back disability have not changed significantly throughout the appeal period; accordingly, uniform ratings are warranted. 1. Entitlement to a compensable rating for left ankle scars The Veteran’s left ankle scars are currently rated as noncompensable (0 percent disabling) under 38 C.F.R. § 4.118, DC 7802. Effective August 13, 2018, VA amended its regulations governing skin disabilities. VA’s intent is that the claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. For applications filed on or after the effective date, only the new criteria will be applied. 83 Fed. Reg. 32592 (July 13, 2018). As the Veteran filed his claim before the August 13, 2018 effective date, the Board will consider whether either the old or new rating criteria is more favorable to the Veteran. The pre-amended DC 7801 provided disability ratings for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear. 38 C.F.R. § 4.118, DC 7801. In contrast, the amended DC 7801 contemplates burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7801 (August 13, 2018). Both the old and new criteria provide that a 10 percent rating is awarded when the area of the scar(s) covers at least 6 square inches (39 square centimeters) but less than 12 square inches (77 square centimeters). A 20 percent rating is warranted when the area of the scar(s) covers at least 12 square inches (77 square centimeters) but less than 72 square inches (456 square centimeters). A 30 percent rating is warranted when the area of the scar(s) covers at least 72 square inches (456 square centimeters) but less than 144 square inches (929 square centimeters). A 40 percent rating is assigned when the area of the scar(s) covers at least 144 square inches (929 square centimeters) or greater. 38 C.F.R. § 4.118, DC 7801. Note (1) to the pre-amended DC 7801 stated that a deep scar is one associated with underlying soft tissue damage. Prior to August 13, 2018, DC 7802 provided rating criteria for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear. 38 C.F.R. § 4.118, DC 7802. The amended version is for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7802 (August 13, 2018). Both versions state that a 10 percent disability rating is warranted when the area of the scar covers 144 square inches (929 square centimeters) or greater. Under both the old and new rating criteria, DC 7804 provides disability ratings for scars that are unstable or painful. A 10 percent rating is warranted for one or two scars that are unstable or painful. A 20 percent rating is warranted for three or four scars that are unstable or painful. A 30 percent rating is warranted for five or more scars that are unstable or painful. Note (1) states that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, an additional 10 percent should be added to the evaluation based on the total number of unstable or painful scars. Note (3) states that scars evaluated under DC 7800, 7801, 7802, or 7805 may also receive an evaluation under this DC, when applicable. 38 C.F.R. § 4.118, DC 7804. Under the old rating criteria, DC 7805 provided that other scars (including linear scars) and other effects of scars evaluated under DC 7800, 7801, 7802, and 7804 require the evaluation of any disabling effect(s) not considered in a rating provided under DC 7800-7804 under an appropriate DC. 38 C.F.R. § 4.118, DC 7805. The Board notes that this DC is largely unchanged under the new amendments apart from the replacement of the phrase “(including linear scars)” with “and other effects of scars evaluated under DC 7800, 7801, 7802, or 7804.” 38 C.F.R. § 4.118, DC 7805 (August 13, 2018). In July 2018, the Veteran was afforded a VA ankle examination, which included an evaluation of the Veteran’s left ankle scars. The examiner noted that the Veteran had two left ankle scars measuring 0.5cm in length and 0.1cm in width. The area covered by the scar does not meet the criteria under DC 7801 nor 7802. Additionally, the July 2018 VA examination reveals that the Veteran’s left ankle scars are not painful or unstable. Furthermore, the record does not demonstrate that the Veteran’s left ankle scars are productive of any disabling effects. The Board finds probative the findings of the July 2018 VA examiner regarding the condition of the Veteran’s left ankle scars. Further, while the Veteran has reported symptoms of recurrent pain in his left ankle, the evidence does not demonstrate that the Veteran has reported that the scars of his left ankle are painful. See July 2018 VA examination; see also Veteran’s statement dated January 29, 2019. As such, the Board finds that the Veteran’s left ankle scars do not meet the criteria under any of the rating provisions for a scar through application of either the old or new rating criteria. 38 C.F.R. §§ 4.3, 4.118, Diagnostic Codes (DCs) 7801-7805. Accordingly, the preponderance of the evidence is against a compensable rating for the Veteran’s left ankle scars. All evidence has been considered and there is no doubt to be resolved. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, (1990). 2. Entitlement to an increased rating in excess of 20 percent for left ankle arthritis is denied The Veteran contends that his left ankle arthritis is worse than is contemplated by his 20 percent rating and that an increased rating is warranted. He maintains that he has constant pain and weakness in his left ankle making it difficult to function. The Veteran’s left ankle arthritis is currently assigned a 20 percent rating under 38 C.F.R. § 4.71a, DC 5271. DC 5271 provides for a maximum schedular rating of 20 percent for marked limitation of range of motion and a 10 percent rating for moderate limitation of range of motion. 38 C.F.R. § 4.71a, DC 5271. Normal range of motion of the ankle is zero to 20 degrees for dorsiflexion and zero to 45 degrees for plantar flexion. See 38 C.F.R. § 4.71, Plate II. The Board notes that the Veteran has already been granted the highest schedular evaluation for a left ankle disability based upon limitation of motion. 38 C.F.R. § 4.71a, DC 5271. While VA must in some circumstances consider functional impairment in addition to limitation of motion due to factors such as pain, weakness, premature or excess fatigability, and incoordination, see DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); 38 C.F.R. §§ 4.40, 4.45, this rule does not apply where, as here, the Veteran is receiving the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis. See Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). Similarly, Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) and Correia v. McDonald, 28 Vet. App. 158 (2016) are not for application because those decisions pertain to the adequacy of examinations as they relate to range of motion findings, but range of motion findings are not relevant here because they cannot result in a higher rating. As such, a higher rating under DC 5271 is not warranted. See 38 C.F.R. § 4.71a, DC 5271. Under DC 5270 a rating of 30 percent is warranted when there is ankylosis of the ankle in plantar flexion, between 30 degrees and 40 degrees, or in dorsiflexion, between 0 degrees and 30 degrees; a rating of 40 percent is warranted when there is ankylosis of the ankle 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. “Ankylosis” is defined as “immobility and consolidation of a joint due to disease, injury or surgical procedure.” See Colayong v. West, 12 Vet. App. 524, 528 (1999); Shipwash v. Brown, 8 Vet. App. 218, 221 (1995); see also Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Neither the Veteran’s treatment records nor the 2018 VA examination reports indicate that there was ankylosis of the Veteran’s ankle. The 2018 VA ankle examination demonstrated that the Veteran had marked limitation of motion but did not indicate that the Veteran’s ankle joint was fixed in a specific position. The lay statements of record similarly do not indicate that there has been ankylosis. While VA must in some circumstances consider functional impairment in addition to limitation of motion due to factors such as pain, weakness, premature or excess fatigability, and incoordination, see DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); 38 C.F.R. §§ 4.40, 4.45, this rule does not apply where, as here, the Veteran is receiving the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis. See Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). Accordingly, the Board finds that the evidence of record does not support that a higher rating based upon ankylosis of the Veteran’s left ankle is warranted. See 38 C.F.R. § 4.71a, DC 5270. The Board also considered whether the Veteran is entitled to a rating in excess of 20 percent under DC 5003, which is applicable to degenerative arthritis. DC 5003 directs that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes. 38 C.F.R. § 4.71a, DC 5003. A rating of 20 percent is the highest schedular rating available under DC 5003 for a single joint; accordingly, a rating in excess of 20 percent is not available under DC 5003. See 38 C.F.R. § 4.71a, DC 5003. Additionally, the Board finds that a separate rating is not available under DC 5003. The Veteran’s current 20 percent rating assigned under DC 5271 considers limitation of motion of the left ankle. The evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. As a separate evaluation under DC 5003 would evaluate the same limitation of motion contemplated by the Veteran’s current rating assigned under DC 5271, a separate rating under DC 5003 would constitute impermissible pyramiding; accordingly, a separate rating under 5003 is not warranted. See 38 C.F.R. § 4.14. Accordingly, the preponderance of the evidence is against an increased rating in excess of 20 percent for the Veteran’s left ankle arthritis. All evidence has been considered and there is no doubt to be resolved. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert, 1 Vet. App. 49 (1990). 3. Entitlement to an increased rating in excess of 40 percent for a lumbar osteoarthritis status post lumbar spine fracture L1 with intervertebral disk syndrome (lumbar osteoarthritis) is denied. The Veteran contends that his lumbar osteoarthritis is sufficiently severe to warrant an increased disability rating. The Veteran’s lumbar osteoarthritis is currently assigned a 40 percent rating under 38 C.F.R. § 4.71a, DC 5235. Because the Veteran has degenerative arthritis, the Veteran’s lumbar osteoarthritis is considered under DC 5003. DC 5003 directs that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate DCs. 38 C.F.R. § 4.71a, DC 5003. In this case, the applicable DC for limitation of motion is DC 5235, or 5243 for intervertebral disc syndrome (IVDS). Back disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating IVDS based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a, DCs 5235 – 5243. Under the current Formula for Rating IVDS Based on Incapacitating Episodes, a 40 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12-month period on appeal; and a 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during a 12-month period on appeal. 38 C.F.R. § 4.71a, DC 5243. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, DC 5243, Note (1). In July 2018, the Veteran was afforded a VA back examination. The examination revealed that the Veteran has IVDS, but he did not experience any incapacitating episodes having a total duration of at least six weeks during the past 12-month period. As such, a rating in excess of 40 percent based on IVDS is not shown under DC 5243 and application of that DC is not beneficial to the Veteran. Under the General Rating Formula for Diseases and Injuries of the Spine, a 40 percent evaluation is warranted if forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine; A 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Normal ranges of motion of the thoracolumbar spine are flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and lateral rotation from 0 to 30 degrees. 38 C.F.R. § 4.71, Plate V. The July 2018 VA back examination noted that the Veteran did not have unfavorable ankylosis of the entire spine, nor did he have unfavorable ankylosis of the entire thoracolumbar spine. Additionally, the Veteran treatment records of record do not report unfavorable ankylosis of the entire thoracolumbar spine. While VA must in some circumstances consider functional impairment in addition to limitation of motion due to factors such as pain, weakness, premature or excess fatigability, and incoordination, see DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); 38 C.F.R. §§ 4.40, 4.45, this rule does not apply where, as here, the Veteran is receiving the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis. See Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). Similarly, Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) and Correia v. McDonald, 28 Vet. App. 158 (2016) are not for application because those decisions pertain to the adequacy of examinations as they relate to range of motion findings, but range of motion findings are not relevant here because they cannot result in a higher rating. As none of the competent evidence of record demonstrates that the Veteran suffers from ankylosis of the entire thoracolumbar spine or the entire spine, the Board finds that the Veteran is not entitled to a rating in excess of 40 percent under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, DC 5235. Accordingly, the preponderance of the evidence is against an increased rating in excess of 40 percent for the Veteran’s lumbar osteoarthritis. All evidence has been considered and there is no doubt to be resolved. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to a TDIU is remanded Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the purpose of one 60 percent, or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a). The Veteran has not been awarded ratings of a single disability at 60 percent, or a single disability rated at 40 percent with additional rated disabilities to bring the combined rating to 70 percent. Accordingly, he does not currently meet the minimum percentage requirements for a TDIU. 38 C.F.R. § 4.16(a). However, it is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for Extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16. 38 C.F.R. § 4.16(b). Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In determining the severity of impairment, the central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. A May 2019 Vocational Assessment Report was submitted in June 2019. That report opines that in consideration of the Veteran’s service-connected conditions, it is at least as likely as not the Veteran has been unable to secure and follow substantially gainful employment, to include sedentary work, since at least December 2017 to the present. Although the evidence suggests that the Veteran’s s service-connected conditions may prevent him from obtaining and maintaining substantially gainful employment, the Board cannot consider entitlement to TDIU under 38 C.F.R. § 4.16 (b) in the first instance but must first remand the claim for referral to VA’s Director of Compensation Service. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Thus, the RO should refer issue of entitlement to TDIU to the Director of Compensation Service for extraschedular consideration under 38 C.F.R. § 4.16 (b). This matter is REMANDED for the following action: 1. Refer the issue of entitlement to a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16 (b) to the Director of Compensation Service. Patrick M. Johnson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Temple, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.