Citation Nr: A21016975 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 200515-83724 DATE: October 20, 2021 ORDER Entitlement to a 20 percent rating, but not higher, from March 1, 2020, is granted for status post arthroscopy with microfracture synovectomy, modified Brostrom, tendon repair, syndesmosis fixation, right ankle, hereinafter referred to as a "right ankle disability.)" Entitlement to an initial compensable evaluation for scars, status post right ankle surgery is denied. FINDINGS OF FACT 1. The Veteran's right ankle disability is manifested by symptoms that more nearly approximate marked limitation of motion. 2. The Veteran's right ankle scars are not shown to be painful or unstable, and are not greater than 929 square meters. CONCLUSIONS OF LAW 1. From March 1, 2020, the criteria for a 20 percent rating, but not higher, for the service-connected right ankle disability are approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5003-5271 (2020). 2. The criteria for an initial compensable rating for scars, status post right ankle surgery are not met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. § 3.321, 4.3, 4.7, 4.118, DC 7802 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1987 to July 1994, November 2001 to February 2003, and September 2005 to June 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2020 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2020, the Veteran submitted a VA Form 10182 Decision Review Request form opting into the modernized appeal management system (AMA) and selecting Direct Review. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal in April 2020. 38 C.F.R. § 20.301. Preliminary Matters The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Higher Rating Claims Disability evaluations are determined by comparing a veteran's present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in 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 upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervations, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the 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. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, considering any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202. The provisions regarding the avoidance of pyramiding, see 38 C.F.R. § 4.14, do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. However, those provisions should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. 38 C.F.R. §§ 4.40, 4.45. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Painful motion is an important factor of joint disability which is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. However, the evaluation of painful motion as limited motion only applies when the limitation of motion is noncompensable under the applicable diagnostic code. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Increased rating for a right ankle disability The Veteran has been in receipt of a 10 percent evaluation for right ankle talofibular tendon tear status post repair with scar since March 2010. The Veteran underwent right ankle surgery in December 2019. Effective on the date of surgery, a temporary disability rating of 100 percent was assigned to the Veteran based on surgical treatment necessitating convalescence for the service-connected right ankle disability under 38 C.F.R. § 4.30. The Veteran's right ankle disability was recharacterized as status post arthroscopy with microfracture synovectomy, modified Brostrom, tendon repair syndesmosis fixation, of the right ankle and returned to a 10 percent rating on March 1, 2020. He filed the current claim in February 2020. The Veteran contends that he is entitled to an increased rating for his right ankle disability following his surgery based on his limitation of motion and numbness in the right foot and right lower leg. The right ankle disability is rated under DCs 5003-5271. 38 C.F.R. § 4.71. Under DC 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate DCs for the specific joint or joints involved. The hyphenated DC indicates that degenerative arthritis, under DC 5003, is the service-connected disability, and the residual condition (to which the Veteran's service-connected arthritis is rated by analogy) is limited motion of the right ankle, which is evaluated under DC 5271. 38 C.F.R. § 4.27. DC 5271 provides ratings based on limitation of motion of the ankle. Moderate limitation of motion of the ankle is rated as 10 percent disabling. Marked limitation of motion of the ankle is rated as 20 percent disabling. A 20 percent evaluation is the highest rating available for limitation of motion of the ankle. DC 5271 provides a 20 percent rating for marked limited ankle motion. 38 C.F.R. § 4.71a. Normal ankle motion is dorsiflexion to 20 degrees, and plantar flexion to 45 degrees. 38 C.F.R. § 4.71a, Plate II. Normal ranges of motion of the ankle are dorsiflexion from 0 degrees to 20 degrees, and plantar flexion from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. Words such as "slight," "moderate," and "marked" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. VA's policy is moderate limitation of ankle motion is present when there is less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion, while marked limitation of motion is demonstrated when there is less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. VA medical records show that mid-February 2020, the Veteran underwent surgery for removal of the hardware related to the December 2019 surgery. It was noted that the Veteran's right ankle would be immobilized for six weeks following surgery in a fracture boot but that he could return to work 48 hours after surgery. He was to wear the fracture boot with all weightbearing activity. At a follow-up podiatric appointment in March 2020, the Veteran reported postoperative numbness in his 3rd and 4th toes, and that pain was well-controlled. Clinical examination showed no paresthesias elicited at the site of the incision, and no Tinel sign or Valleix sign at the intermediate dorsal cutaneous nerve. There was no Mulder's click to the right 2nd or 3rd interspaces. The examiner suspected the neuropraxia was from postoperative swelling. The Veteran was directed to wear the fracture boot with weightbearing as tolerated. The Veteran returned for a followup appointment in April 2020 and reported that he had some pain in his right ankle as well as numbness to the 3rd and 4th digits. Clinical examination showed epicritic sensation diminished subjectively per the patient to the 3rd and 4th digits. There was some pain on right ankle dorsiflexion and plantar flexion and less pain elicited on right ankle inversion and eversion. The examiner noted that the Veteran was to remain in the controlled action motion walking boot (CAM walker). At a VA ankle examination in April 2020, the examiner confirmed the Veteran's surgical procedure in February 2020 for right ankle hardware removal with open reduction internal fixation (ORIF) of syndesmosis. The examiner noted that the proximity of the recent surgery precluded any formal examination on the right ankle as the Veteran continued in his post-surgical boot and rehabilitation at that time. Upon review of the record, the Board finds that the Veteran's right ankle disability warrants a 20 percent rating under DC 5271. Although the Veteran's range of motion was unable to be determined upon examinations due to his recent surgeries, the Board notes that the Veteran continued to report pain in his ankle with dorsiflexion and plantar flexion, and the VA podiatrist who conducted his surgery wanted the Veteran to remain in the CAM walker. The Board finds the Veteran's statements credible. Thus, resolving all doubt in favor of the Veteran, the Board finds that the Veteran has and does present a disability picture that more nearly approximates additional functional impairment in the context of "marked" limitation of motion for the right ankle for the period on appeal. Therefore, the Board concludes that the Veteran warrants a 20 percent rating for his right ankle disability. Further, the maximum rating for limitation of the ankle is 20 percent, absent ankylosis which has not been shown. As such, further DeLuca analysis is not required. 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, a rating higher than the 20 percent evaluation granted herein for the joint, pursuant to Diagnostic Code 5271, is not warranted. 2. Initial compensable rating for scars, status post right ankle surgery In the April 2020 rating decision, the Veteran was assigned a separate noncompensable evaluation for scars related to his right ankle disability, effective from December 2019. DC 7802 provides for burn scars or scars due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage. A maximum 10 percent rating for a burn or scar involving an area of 144 square inches (929 sq. cm) or greater. In every instance where the schedule does not provide a 0 percent rating for a diagnostic code, a 0 percent rating will be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31 Under DC 7804, one or two scars that are unstable or painful warrant a 10 percent rating. A 20 percent rating requires three or four scars that are unstable or painful. A 30 percent rating requires five or more scars that are unstable or painful. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. If one or more scars are both unstable and painful, 10 percent is to be added to the evaluation that is based on the total number of unstable or painful scars. Scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an additional rating under DC 7804, when applicable. 38 C.F.R. § 4.118, DC 7804. The Veteran asserts that he is entitled to an increased rating for the scar as it is overly sensitive due to the 2019 right ankle surgery. The December 2019 VA report of right ankle surgery shows that two small incisions, one anteromedial and one anterolateral, about 1.5 cm in length were made in the Veteran's right ankle. A third small linear incision was made on the lateral aspect of the fibula. At a followup examination in March 2020, the examiner noted that the sutures were intact with the incision already epithelialized 80 percent. There was no erythema, fluctuance, or drainage. There was no pain on palpation. The right lateral arthroscopy portal incision was healed without paresthesias. The examiner removed the sutures. At a subsequent follow-up examination one month later in April 2020, clinical examination revealed well-healed cicatrix to the surgical sites. There were no open lesions or macerations. At a VA ankle examination in April 2020, the examiner confirmed the Veteran's surgical procedure in February 2020 for right ankle hardware removal with open reduction internal fixation (ORIF) of syndesmosis. The examiner noted that the proximity of the recent surgery precluded any formal examination of scars on the right ankle as the Veteran continued in his post-surgical boot and rehabilitation at that time. Color photographs received in April 2020 show images of the Veteran's right ankle scars at different stages in healing. The main scar is linear in appearance. For the specific period on appeal, the record, to include the Veteran's statements, does not support a compensable evaluation for the right ankle surgical scars. The Veteran's scars are linear in nature and not shown to measure 929 square meters or greater. Thus, a higher rating is not warranted under DC 7802. The examiner also noted in April 2020, that the scars were well-healed and there were no complaints of pain with respect to the scar or pain on palpation. Thus, a higher rating under DC 7804 is also not warranted for a painful scar. Other potentially applicable DCs have been considered, but none assist the Veteran in this case. DC 7800 is inapplicable because it pertains to scars of the head, face and neck. DC 7801 is inapplicable because it pertains to scars that are deep and nonlinear. DC 7805 is also not applicable as the scar is appropriately evaluated under DC 7802. The Veteran is competent to state symptoms that he has experienced such as sensitivity, as this requires only personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470 (1994). While the Veteran's statements are credible and competent evidence of the symptoms he experiences, his statements are not competent evidence to identify a specific level of severity relating of his disability to the appropriate DCs as this requires specialized medical education, training or experience. See 38 C.F.R. § 3.159(a). In contrast, competent and probative evidence concerning the nature, extent, and severity of the Veteran's scars has been provided by the VA examiners who examined him on visits during the appeal period. See id. Consideration has been given to the benefit of the doubt doctrine, however, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application in this case. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). The claim is denied. L. Chu Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Beach, 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.