Citation Nr: 21061743 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 15-03 764A DATE: October 5, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for status post right achilles surgery with residual strain is denied. Entitlement to a disability rating in excess of 20 percent for status post left achilles surgery with residual strain is denied. Entitlement to a disability rating in excess of 20 percent for status post bilateral achilles tendon rupture with repair, residual tender scar associated with status post right achilles surgery with residual strain is denied. Entitlement a compensable disability rating for residual linear scar associated with status post left achilles surgery is denied. FINDINGS OF FACT 1. The Veteran's status post right achilles surgery with residual strain is rated as 20 percent disabling, which is the maximum schedular rating permitted for limited motion of the ankle. 2. The Veteran's status post left achilles surgery with residual strain is rated as 20 percent disabling, which is the maximum schedular rating permitted for limited motion of the ankle. 3. The Veteran has two scars that are unstable or painful. 4. The Veteran's scars are not manifest by any disabling effects not considered under Diagnostic Codes 7800-04. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for status post right achilles surgery with residual strain have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.71a, Diagnostic Code 5271. 2. The criteria for a rating in excess of 20 percent for status post left achilles surgery with residual strain have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.71a, Diagnostic Code 5271. 3. The criteria for a disability rating in excess of 20 percent for status post bilateral achilles tendon rupture with repair, residual tender scar associated with status post right achilles surgery with residual strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7804. 4. The criteria for a compensable disability rating for residual linear scar associated with status post left achilles surgery have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty with the United States Army from October 2003 to October 2008, including a tour of duty in Iraq. In March 2018, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. This case was most recently before the Board in December 2018, at which time the issues on appeal were remanded for additional development. The case has since returned to the Board for appellate consideration. The Board notes that while the Veteran was represented by the Disabled American Veterans (DAV) at the time of his hearing and the above-mentioned remand, the record does not include a VA Form 21-22 appointing the service organization as the Veteran's representative. The Veteran was informed of this in a June 2021 letter and was asked to send in an enclosed form appointing a current representative. The Veteran did not respond to the letter. Absent a current VA Form 21-22 appointing DAV or any other representative as Power of Attorney for the Veteran, the Board will consider the matters on appeal with the understanding that he is appearing pro se. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated based on specific criteria identified by Diagnostic Codes. When there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Generally, the degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. 5. Entitlement to a disability rating in excess of 20 percent for status post right achilles surgery with residual strain (right ankle disability) 6. Entitlement to a disability rating in excess of 20 percent for status post left achilles surgery with residual strain (left ankle disability) The Veteran seeks higher ratings for his service-connected right and left ankle disabilities, for which he is currently in receipt of maximum 20 percent disability ratings for each ankle under 38 C.F.R. § 4.71a, Diagnostic Code 5271 for the entire period on appeal. Under that Diagnostic Code, a 20 percent rating is warranted for marked limitation of ankle motion. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes to ensure that the rating schedule used current medical terminology and provided detailed and updated criteria for the evaluation of musculoskeletal disabilities. Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110 (g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110 (g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. As previously discussed, prior to the regulatory change, Diagnostic Code 5271 establishes a 20 percent rating for "marked" limitation of ankle motion. The words "slight," "moderate," and "severe" as used in the Diagnostic Code were not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board was required to evaluate the evidence in its entirety for "equitable and just decisions." 38 C.F.R. § 4.6. Normal ranges of ankle motions were identified as 0 to 20 degrees for dorsiflexion and 0 to 45 degrees for plantar flexion. 38 C.F.R. § 4.71, Plate II. However, the amended criteria under Diagnostic Code 5271 defined "marked" and "moderate" limitation of motion. "Moderate" limitation of motion is less than 15 degrees of dorsiflexion or less than 30 degrees of plantar flexion. "Marked" limitation of motion is less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. Turning to the evidence, the Board notes that the Veteran was afforded a VA examination in connection with his claim in October 2014. The Veteran reported experiencing flare-ups impacting the function of the ankles, which he described as consisting of stiffness and limited motion in the morning, and he indicated he was unable to run. Initial range of motion testing of the right ankle showed plantar flexion to 30 degrees, with objective evidence of painful motion beginning at 30 degrees, and right ankle dorsiflexion to 10 degrees, with objective evidence of painful motion beginning at 10 degrees. Left ankle plantar flexion was to 30 degrees, with objective evidence of painful motion beginning at 30 degrees, and left ankle dorsiflexion to 10 degrees, with objective evidence of painful motion beginning at 10 degrees. Range of motion measurements after repetitive use testing were the same as initial range of motion measurements in each ankle. There was no additional limitation in range of motion of the ankle following repetitive use testing. However, there was functional loss, including less movement than normal, excess fatigability, incoordination, pain on movement, and disturbance of locomotion in both ankles. The examiner indicated that the Veteran had localized tenderness or pain on palpation of the joints/soft tissue of both ankles. The Veteran did not have ankylosis of the left or right ankle, subtalar and/or tarsal joints. The examiner found that the Veteran's right and left ankle disabilities impacted his ability to work in that they caused him to avoid jumping, frequent stepping, crawling, prolonged standing activities, and walking on uneven terrain. In the remarks section, the examiner wrote that there were contributing factors of pain, weakness, fatigability, and/or incoordination; and additional limitation of functional ability of the ankles during flare-ups or repeated use over time. The degree of range of motion loss during pain on use or flare-ups was approximately an additional 5 degrees of loss of plantar flexion and dorsiflexion in both ankles. In June 2018, the Veteran submitted an Ankle Conditions Disability Benefits Questionnaire (DBQ) completed by private physician L.Z. The Veteran reported flare-ups impacting function of the ankles, which he described as consisting of intense throbbing pain. He reported that pain was worse during colder months. The Veteran reported functional loss consisting of lack of range of motion and scars that made it difficult to wear shoes. Initial range of motion testing of the right ankle showed plantar flexion to 35 degrees and dorsiflexion to 10 degrees. Left ankle plantar flexion was to 35 degrees left ankle dorsiflexion was to 10 degrees. Range of motion measurements after repetitive use testing were the same as initial range of motion measurements in each ankle, with the exception of right ankle dorsiflexion, which was to 5 degrees, and left ankle dorsiflexion, which was to 10 degrees. Contributing factors of disability included less movement than normal, weakened movement, excess fatigability, and swelling in both ankles. The examiner estimated range of motion due to pain and/or functional loss during flare-ups or when the joints were used repeatedly over a period of time; right ankle plantar flexion was estimated to 35 degrees and dorsiflexion to 5 degrees; left ankle plantar flexion was estimated to 35 degrees and dorsiflexion to 10 degrees. Muscle strength testing showed rate strength of 4/5 in plantar flexion of the right and left ankles, with the reduction noted to be entirely due to the service-connected disability. Dr. L.Z. indicated that she was unable to determine whether the Veteran had muscle atrophy due to his service-connected disabilities, but she noted that he had muscle atrophy located 8 centimeters below the tibial tubercle in each ankle. Dr. L.Z. found no evidence of ankylosis. Regarding functional impairment, she determined that the Veteran's right and left ankle disabilities rendered him unable to stand continuously for more than 1-2 hours; that they caused pain if walking more than two to three blocks without rest; and that he was unable to job and run without pain. She also noted that the Veteran had pain if lifting more than 50 pounds. The Veteran was most recently afforded a VA examination in connection with his claims in December 2019. He reported that his disabilities had worsened since onset, and described current symptoms of pain in both ankles that was "on and off" with standing and walking. He also reported occasional swelling of the ankles with prolonged standing and walking. He reported use of topical gel, like Bengay, and Motrin for his symptoms. He reported flare-ups of the ankle consisting of pain, stiffness, and swelling of the ankles. Functional loss was described as an inability to stand and walk for prolonged periods of time. Initial range of motion testing revealed right ankle dorsiflexion to 10 degrees and plantar flexion to 30 degrees. Pain was noted on dorsiflexion, causing functional loss. There was objective evidence of moderate/severe localized tenderness or pain of the Achilles, which the examiner determined to be related to tendonitis. There was evidence of pain with weight bearing. Left ankle dorsiflexion was to 15 degrees, and plantar flexion was to 35 degrees. Pain was noted on dorsiflexion, causing functional loss. There was objective evidence of moderate localized tenderness or pain of the Achilles, which the examiner determined to be related to tendonitis. There was evidence of pain with weight bearing. The Veteran was able to perform repetitive use testing with at least three repetitions, with no additional loss of function or range of motion in either ankle. Pain, fatigue, weakness, and lack of endurance significantly limited functional ability with repeated use of the right ankle over time, which the examiner described in terms of range of motion as dorsiflexion to 10 degrees and plantar flexion to 30 degrees. Pain, fatigue, weakness, and lack of endurance also significantly limited functional ability with repeated use of the left ankle over time, which the examiner described in terms of range of motion as dorsiflexion to 15 degrees and plantar flexion to 35 degrees. Pain, fatigue, weakness, and lack of endurance significantly limited functional ability with flare ups of the right ankle, which the examiner described in terms of range of motion as dorsiflexion to 5 degrees and plantar flexion to 20 degrees. There was no evidence of pain on non-weightbearing use of either ankle, and passive range of motion testing yielded results that were the same as active range of motion testing. There was no evidence of ankylosis. The Veteran was noted to require occasional use of a brace and cane for his ankle conditions. The examiner found that the Veteran's ankle disabilities impacted his ability to work in that he cannot stand and walked for prolonged periods of time. During his March 2018 Board hearing, the Veteran testified that he had limited range of motion of both ankles as a result of his in-service Achilles tendon surgeries, including residual scarring from the surgeries. He testified that he experienced pain particularly after long periods of walking, standing, and any type of physical exercise, and that he must limit his activities at work because of his disability. Overall, after careful review of the evidence of record, the Board finds that increased disability ratings are not warranted at any point during the period on appeal. In this regard, the Board notes that the Veteran is already in receipt of the maximum rating available under the applicable Diagnostic Code, 5271, for each ankle for the entire period on appeal. Under Diagnostic Code 5270, a 40 percent evaluation may be assigned for 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. A 30 percent rating is assignable for ankylosis in plantar flexion between 30 degrees and 40 degrees, or in dorsiflexion, between 0 degrees and 10 degrees. However, the Board finds this Diagnostic Code inapplicable to the Veteran's case because the evidence does not establish that he has had ankylosis, functional or otherwise, at any point during the period on appeal. The Board notes that Diagnostic Code 5272 provides a rating for ankylosis of the subastragalar or tarsal joint. Diagnostic Code 5273 provides for malunion of the calcis or astragalus, and Diagnostic Code 5274 for astragalectomy. However, the evidence does not show that ankylosis of the subastragalar or tarsal joint, malunion of the os calcis or astragalus, or astragalectomy. Accordingly, Diagnostic Codes 5272, 5273, and 5274 are not applicable in this case. The Board emphasizes again that the Veteran's current 20 percent ratings are the maximum for limitation of motion of the ankle. Higher ratings due to additional functional loss under 38 C.F.R. §§ 4.40 and 4.45 are not available. Johnston v. Brown, 10 Vet. App. 80 (1997) (holding that 38 C.F.R. §§ 4.40 and 4.45 do not apply and that a higher rating is not warranted for painful motion or functional loss when the maximum schedular disability rating based on limitation of motion is in effect). Therefore, any examination deficiencies regarding range of motion testing during flares or on repetitive use would be nonprejudicial error as a higher rating cannot be awarded based on additional motion loss. In reaching a decision on these matters, the Board has considered whether it would be appropriate to refer the issues for extraschedular consideration. Consideration of an extraschedular rating requires a three-step inquiry. The first question is whether the schedular rating criteria adequately contemplate the veteran's disability picture. If the schedular evaluation does not contemplate the level of disability and symptomatology shown and is found inadequate, then the second inquiry is whether the exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. See Thun v. Peake, 22 Vet. App. 111 (2008). Extraschedular consideration is not applicable to claims that are evaluated properly but ultimately denied under the schedular ratings; rather, it applies only after conventional rating tools prove inadequate to evaluate a veteran's symptomatology in the first place due to its exceptional nature. Long v. Wilkie, 33 Vet. App. 167 (2020). The first Thun element compares a claimant's symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms. Thus, the first and second Thun elements, although interrelated, involve separate and distinct analyses. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). If the veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Director of Compensation Services to determine whether an extraschedular rating is warranted. See Thun, 22 Vet. App. 111. In this case, comparison of the Veteran's symptoms and associated functional impairment does not show that the rating criteria are inadequate to describe his disability picture. The Veteran's right and left ankle disabilities are rated based primarily on limitation of motion under Diagnostic Code 5271. The record shows that his disabilities are manifest primarily by limitation of motion. The Veteran has not contended, and the record does not show, that he has a level of functional impairment or symptoms that are not contemplated by the applicable rating criteria. He has not otherwise explained how the rating criteria are inadequate to describe his disability picture. As the Veteran's symptoms are reasonably contemplated by the rating criteria, the threshold issue under Thun is thus not met, and further consideration of an extraschedular rating is not warranted. 7. Entitlement to a disability rating in excess of 20 percent for status post bilateral achilles tendon rupture with repair, residual tender scar associated with status post right achilles surgery with residual strain 8. Entitlement a compensable disability rating for residual linear scar associated with status post left achilles surgery The Veteran seeks increased disability ratings for his service-connected bilateral achilles tendon scars, currently assigned a 20 percent disability rating under 38 C.F.R. § 4.118, Diagnostic Code 7804 and a noncompensable disability rating under Diagnostic Code 7805 for the entire period on appeal. As a preliminary matter, the Board observes that scars not located on the head, face, or neck are rated under Diagnosis Codes 7801, 7802, 7804, and 7805. The Veteran's scars are from surgery, and the evidence does not show that they are deep and/or nonlinear; therefore, the only applicable Diagnostic Codes are 7804 and 7805. Under Diagnostic Code 7804, a compensable rating is warranted for one or two scars that are painful or unstable. Three or four scars that are unstable or painful scars warrants a 20 percent rating. Five or more scars that are unstable or painful warrants a 30 percent rating. 38 C.F.R. § 4.118. Note 1 to Diagnostic Code 7804 instructs that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note 2 instructs that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note 3 provides that scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this Diagnostic Code, when applicable. Diagnostic Code 7805 provides that other scars, including linear scars, and other effects of scars are evaluated under Codes 7800, 7801, 7802, 7804. Any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04 should be evaluated under an appropriate Diagnostic Code. The Board notes that VA amended the criteria for rating skin disabilities effective August 13, 2018. However, Diagnostic Codes 7804 and 7805 were not changed by the August 13, 2018 amendments. Turning to the evidence, the Board observes that the Veteran was afforded a VA examination in connection with his claim in October 2014. The examiner indicated that the Veteran had two scars that were painful and unstable. One of the scars was on the right ankle and was linear, tender, and measured 12.0 centimeters by 0.2 centimeters. The other scar was on the left ankle and was linear, tender, and measured 12.0 centimeters by 0.2 centimeters. The Veteran was afforded another VA examination to determine the severity of his right and left achilles tendon scars in December 2019. The examiner indicated that the Veteran had two painful scars and one scar that was unstable. One of the scars was on the right ankle, was tender to palpation, was unstable, and measured 9.0 centimeters by 1.5 centimeters. The other scar was on the left ankle, was tender to palpation, and measured 11 centimeters by 0.1 centimeters. The examiner wrote that the Veteran's scars impact his ability to work in that the Veteran cannot stand and walk for a prolonged time. During his March 2018 Board hearing, the Veteran testified that his scars were painful and resulted in limited range of motion. He reported that they were particularly painful after walking, running, standing, and any type of physical exercise. Overall, after careful review of the evidence of record, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 20 percent under Diagnostic Code 7804 because the Veteran's scars are not manifest by five or more scars that are unstable or painful. Instead, the evidence shows that during the period on appeal, the Veteran has had two scars that are painful and unstable. The Board acknowledges the Veteran's contentions that his scars have resulted in limited range of motion of the ankles, but that limitation in range of motion is already contemplated by the maximum ratings he has been assigned under Diagnostic Code 5271, discussed above. The evidence does not otherwise show any other disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04 as contemplated under both pre- and post-August 13, 2018, Diagnostic Code 7805. The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects, and he is competent to report observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the Veteran does not assert, and the evidence does not show, that he has five or more scars that are unstable or painful. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claims for a disability rating in excess of 20 percent under Diagnostic Code 7804 and a compensable disability rating under Diagnostic Code 7805. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. T. Raftery, 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.