Citation Nr: 21064521
Decision Date: 10/20/21	Archive Date: 10/20/21

DOCKET NO. 18-29 438
DATE: October 20, 2021

ORDER

Entitlement to an initial 10 percent disability rating for painful left ankle scar is granted.

REMANDED

Entitlement to an increased disability rating for left ankle disability is remanded.

Entitlement to service connection for left foot disability secondary to service-connected left ankle disability is remanded.

Entitlement to a temporary total evaluation for left plantar instep fasciotomy is remanded.

Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded.

FINDING OF FACT

For the period on appeal, the Veteran's left ankle surgical repair resulted in a painful scar.

CONCLUSION OF LAW

The criteria for entitlement to an initial disability rating of 10 percent for a left ankle scar have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.118, Diagnostic Code (DC) 7804.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from January 1977 to December 1979.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of September 2013 and June 2018 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO).

In May 2021, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file.

In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for TDIU is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. at 452-54.  

In this case at his May 2021 Board hearing, the Veteran asserted that his left ankle disability prevented him from working. The Board interprets this statement as an indication that the Veteran feels he is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability at issue on appeal.  Accordingly, the Board finds that a claim for a TDIU has been raised as part and parcel to the increased rating claim. Therefore, the issue of entitlement to a TDIU is before the Board on appeal and is properly included in the list of issues before the Board.

Increased Rating

Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002).

When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, 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.

Left ankle scar

The Veteran seeks a higher initial disability rating for his service-connected left ankle scar. The Veteran's service-connected left ankle scar is rated as 0 percent disabling under 38 C.F.R. § 4.118, Diagnostic Code 7805, effective from August 21, 2013. The applicable rating period is from the effective date for the award of service connection for the left ankle scar through the present. See 38 C.F.R. § 3.400.

Diagnostic Code 7805 provides that scars, other (including linear scars) and other effects of scars be evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804 and that any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-7804 be evaluated under an appropriate Diagnostic Code. See 38 C.F.R. § 4.118. 

The Veteran underwent a VA examination for the left ankle in August 2013. The examiner identified a scar on the Veteran's left ankle, measuring 5 centimeters by 0.1 centimeters. The scar was not painful and/or unstable and the total area was less than 39 square centimeters.

At the April 2018 VA scar examinations, the examiner identified a scar related to the left ankle disability that is not greater than 39 square centimeters. The scar was not painful or unstable.

At the May 2021 Board hearing, the Veteran testified that his residual scar associated with surgical repair of his left ankle disability is painful. This is a symptom capable of lay observation, and there is no reason to doubt the Veteran's credibility in this regard. 

The Veteran's scar is most appropriately rated under DC 7804, which addresses unstable and painful scars. Under 38 C.F.R. § 4.118, DC 7804, a single unstable or painful scar warrants a 10 percent disability rating. A 20 percent disability rating is only warranted if there are three or more scars that are unstable or painful. 

After reviewing the evidence, a separate initial 10 percent disability rating, but no higher, is warranted for the Veteran's left ankle surgical scar. As the Veteran's scar is painful, he is entitled to a 10 percent disability rating. A higher rating is not warranted because the Veteran reported having only one scar. A rating under DC 7800 is not warranted as the Veteran's scar is not on his head, face or neck. A rating under DC 7801 or DC 7802 is not warranted as there is no evidence that the Veteran's scar covers an area of 6 square inches or greater.

Accordingly, as the Veteran's left ankle surgical scar is painful, a separate 10 percent disability rating is warranted under 38 C.F.R. § 4.118, DC 7804.

REASONS FOR REMAND

1. Left ankle disability

The Board finds that further development is necessary before a decision on the merits may be made regarding the issue of entitlement to a disability rating in excess of 20 percent for left ankle disability. The Veteran was last provided a VA examination relating to his left ankle disability in April 2018, over 3 years ago. Further, the Veteran underwent left ankle surgery subsequent to his April 2018 VA examination. During the May 2021 Board hearing, the Veteran stated he recently had to go to the emergency room, and he also asserted he had surgery on his left ankle a year and a half ago. The Veteran stated he gets all his medical care at VA, however, the most recent VA treatment records associated with the Veteran's claims file are from July 2019. Accordingly, complete VA treatment records should be associated with the claims file.

In light of the Veteran's assertions and his subsequent left ankle surgery or surgeries, a new VA examination is required so that the current nature and severity of the Veteran's service-connected disability may be determined. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination); Weggenmann v. Brown, 5 Vet. App. 281 (1993) (VA has a duty to provide an examination when there is evidence that the disability has worsened since the previous examination).

2. Left foot disability secondary to service-connected left ankle disability

The Veteran seeks entitlement to service connection for a left foot disability secondary to his service-connected left ankle disability. The Veteran was provided a VA examination and nexus opinion as to his left foot disability in April 2018. VA has a duty to ensure that any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A medical opinion is adequate where it is based upon consideration of the full medical history and describes a disability in sufficient detail so that the Board's evaluation will be fully informed. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007).

Here, the Board finds the April 2018 VA opinion relating to the Veteran's left foot disability is inadequate for decision-making purposes. First, the examiner's opinions contained a generalized medical rationale not tailored to the facts of the Veteran's case. For example, the examiner stated that plantar fasciitis is a common result of pes planus and osteoarthritis in the foot is not an atypical finding in a man of Veteran's age, rather than addressing the Veteran's specific situation. Further, the examiner included facts in the rationale that contradict the conclusion. For instance, the examiner stated that other historical events have affected the Veteran's mobility, including falls. However, as the Veteran testified at his May 2021 Board hearing and during his April 2018 VA ankle examination, his left ankle disability has caused him a number of falls over the years. Accordingly, to the extent it appears the April 2018 VA examiner is saying falls may have contributed to his left foot disability, the examiner should have addressed whether the falls caused by his service-connected left ankle disability may have caused or aggravated his left foot disability.

As the opinions are not adequate for decision-making purposes, the Veteran must be provided an addendum VA opinion to address whether the Veteran's left foot disabilities, to include pes planus, degenerative changes, and left foot fasciotomy, are caused or aggravated beyond natural progression by the Veteran's service-connected left ankle disability.

3. Temporary total rating for left plantar instep fasciotomy

4. TDIU

The claims for entitlement to a temporary total rating for left instep fasciotomy and entitlement to a TDIU are inextricably intertwined with the remanded claims herein. Therefore, the Board will not now issue a decision on these claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are inextricably intertwined when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated).

The matters are REMANDED for the following action:

1. Associate with the claims file all VA treatment records from July 2019 to the present.

2. Schedule the Veteran for a VA examination to determine the nature and severity of his service-connected left ankle disability.

3. Obtain an addendum opinion addressing secondary service connection for the Veteran's left foot disability. Specifically, the examiner is asked to determine whether the Veteran's left foot disability was caused or aggravated by his service-connected left ankle disability.

4. Furnish the Veteran with an Application for Increased Compensation Based on Unemployability, VA Form 21-8940, and provide the Veteran an appropriate amount of time to complete and submit it.

 

 

R. FEINBERG

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. St. Laurent, 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.