Citation Nr: 21066273 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 18-03 977 DATE: October 29, 2021 ORDER As the claim is withdrawn, the appeal of entitlement to a rating higher than 30 percent for painful scars right forearm and right lower extremity from June 10, 2019, is dismissed. As the claim is withdrawn, the appeal of entitlement to a compensable rating for scars, multiple fragment wounds, right lower extremity prior to June 10, 2019, is dismissed. As the claim is withdrawn, the appeal of entitlement to a compensable rating for scars, multiple fragment wounds, right forearm prior to June 10, 2019, is dismissed. For the entire appeal period, a 20 percent rating for left ankle disability is granted. FINDING OF FACT 1. On October 15, 2021, prior to the promulgation of a decision in the appeal, the Veteran notified the Board of Veterans' Appeals (Board) at his hearing on appeal that he sought to withdraw his claims for compensable ratings for right lower extremity scars and right forearm scars. 2. For the entire period of appeal, the Veteran's left ankle disability is manifested by marked limitation of motion. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of entitlement to a rating higher than 30 percent for painful scars right forearm and right lower extremity from June 10, 2019, by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the appeal of entitlement to a compensable rating for scars, multiple fragment wounds, right lower extremity prior to June 10, 2019, by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for withdrawal of the appeal of entitlement to a compensable rating for scars, multiple fragment wounds, right forearm prior to June 10, 2019, by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. For the entire period of appeal, the criteria for a 20 percent rating for left ankle disability are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from November 1970 to October 1971. This case comes before the Board of Veteran's Appeals (Board) on appeal of a November 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at an October 15, 2021, Board hearing before the undersigned Veterans Law Judge (VLJ). A hearing transcript will be associated with the file in the ordinary course of business. It is noted that the Veteran chose to participate in this hearing without his authorized representative although given the option to postpone and have the hearing rescheduled for another date. Although the Veterans Law Judge offered to hold open the record for 30 day to allow his representative, who was not present, to provide a written statement in support of his appeal, which was accepted by the Veteran, the Board finds no prejudice to the Veteran in proceeding with adjudication of the claim for increase for the left ankle given that the Veteran is awarded the maximum schedular rating available for limited motion of the ankle herein. 1. Entitlement to a rating higher than 30 percent for painful scars right forearm and right lower extremity from June 10, 2019, is dismissed. 2. Entitlement to a compensable rating for scars, multiple fragment wounds, right lower extremity prior to June 10, 2019, is dismissed. 3. Entitlement to a compensable rating for scars, multiple fragment wounds, right forearm prior to June 10, 2019, is dismissed. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55(a). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55. In the present case, the Veteran notified the undersigned Veterans Law Judge at his October 15, 2021, hearing on appeal that he sought to withdraw his appeal as to the claims of entitlement to (1) a rating in excess of 30 percent for painful scars right forearm and right lower extremity from June 10, 2019, (2) a compensable rating for scars, multiple fragment wounds, right lower extremity prior to June 10, 2019, is dismissed, and (3) a compensable rating for scars, multiple fragment wounds, right forearm prior to June 10, 2019. As the presiding Veterans Law Judge at the hearing held on October 15, 2021, the undersigned finds that the Veteran's request to withdraw his claims was both explicit and unambiguous. He confirmed that he fully understood the consequences of the withdrawal on the record, which will be memorialized in the hearing transcript not yet associated with the Veteran's claims folder. See Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018) (holding that the withdrawal must be explicit, unambiguous, and done with a full understanding of the consequences of such action by the appellant and the subsequent Board dismissal must include findings as to all three elements). Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, as the Board does not have jurisdiction to review the appeal of these matters, the appeal as to these claims is dismissed. 4. A rating higher than 10 percent for left ankle disability The Veteran is diagnosed with degenerative arthritis, left ankle status post open reduction and internal fixation left distal fibula. A November 2016 rating decision granted service connection for left ankle disability with a 10 percent evaluation beginning August 2, 2016. The Veteran seeks a higher rating for his left ankle disability. At his October 2021 Board hearing, the Veteran testified that he had increased limitation of motion on all plains of motion, along with increased stiffness and swelling. Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the factors listed in §§ 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under §§ 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Pursuant to Diagnostic Code 5271, a 10 percent rating is assigned for a moderate limited motion of the ankle and a maximum 20 percent rating for marked limited motion of the ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5271. Beginning February 7, 2021, "marked" is defined as less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion; and "moderate" is defined as less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion. The Veteran reported difficulty with prolonged standing and walking at his October 2016 VA examination. See C&P Exam (October 2016). The examination report documented initial range of motion of the left ankle to 5 degrees dorsiflexion and 10 degrees plantar flexion with pain. Functional impact was described as difficulty with walking, bending, squatting, and going up and down stairs due to left ankle arthritis and residuals of surgery. A June 2019 VA examination report reflected the Veteran had initial range of motion of the left ankle to 5 degrees dorsiflexion and 20 degrees plantar flexion. See C&P Exam (June 2019). Functional impact was described as inability to walk long distances without nerve pain and discomfort. A July 2019 VA examination report reflected the initial range of motion of the left ankle to 15 degrees dorsiflexion and 35 degrees plantar flexion. See C&P Exam (September 2019). Functional impact was described as trouble walking long distances, stairs, and in uneven areas due to balance issues causing the Veteran to be a fall risk. The Veteran denied flare-ups and had no additional loss of range of motion at these examinations. At his August 2021 VA examination, the Veteran reported a change in gait, limping, and increased pain in the left ankle with pain worsening over the years. See VA Examination (August 2021). On examination, the Veteran had 5 degrees dorsiflexion and 10 degrees plantar flexion with pain. The Veteran reported daily flare-ups characterized by severe, sharp radiating pain with stiffness. Range of motion decreased to 5 degrees plantar flexion on repetition while dorsiflexion remained the same, and the examiner estimated 0 degrees dorsiflexion and 5 degrees plantar flexion with repeated use over time and during flare-ups based on the Veteran's self-report. Id Affording the Veteran the benefit of the doubt, the Board finds his left ankle disability is manifested by marked limitation of motion for the entire appeal period. The Board has considered whether a higher rating is warranted for left ankle disability for ankylosis under Diagnostic Code 5270. Though the June 2019 VA examination reflects the Veteran has ankylosis of the left ankle in dorsiflexion, this finding is corrected in an August 2019 addendum opinion which found ankylosis was not present and is not supported by prior or subsequent medical evidence. Additionally, the Veteran has not reported symptoms similar to ankylosis. Accordingly, a 20 percent rating for left ankle disability is warranted for the entire period on appeal. This is the maximum schedular rating available for limited motion of the ankle. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Edwards 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.