Citation Nr: 21067099 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 18-05 491 DATE: November 3, 2021 ORDER For the entire initial disability rating period on appeal, from January 23, 2017, a higher initial disability rating of 20 percent, but no higher, for service-connected status post left ankle fibular collateral ligament surgery (left ankle disability) is granted. For the entire initial rating period on appeal, from January 23, 2017, a higher (compensable) initial disability rating for service-connected left ankle surgical scarring is denied. FINDINGS OF FACT 1. During the entire initial rating period on appeal, from January 23, 2017, the service connected left ankle disability manifested as marked limitation of motion, without ankylosis or symptoms consistent with a severe foot injury. 2. For the entire initial rating period on appeal, from January 23, 2017, the service connected left ankle surgical scarring manifested as one scar that was linear and deep/had underlying soft tissue damage, was not painful or unstable, did not cover an area or areas of at least 6 square inches (39 square centimeters), and did not result in any disabling or other effects. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, for the entire initial disability rating period on appeal, from January 23, 2017, the criteria for a higher initial disability rating of 20 percent, but no higher, for the service-connected left ankle disability have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.14, 4.21, 4.25, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. 2. For the entire initial disability rating period on appeal, from January 23, 2017, the criteria for an initial compensable disability rating for service-connected left ankle surgical scarring have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.1, 4.3, 4.7, 4.10, 4.20, 4.21, 4.118, Diagnostic Codes 7801 7805 (2018 & 2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from May 1995 to May 2000. This matter came before the Board of Veterans' Appeals (Board) on appeal from a May 2017 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The instant matter was previously before the Board in June 2021, where the issues on appeal were remanded for additional development. Review of the record reflects that the Veteran received adequate VA ankle and scar examinations in October 2021. As such, the Board finds the instant matter ripe for adjudication. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran testified at a May 2021 virtual Board hearing before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). As the rating issues on appeal arise from the Veteran's disagreement with the initial rating assigned following the grant of service connection, no additional notice is required regarding this downstream element of the service connection claim. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); 38 C.F.R. § 3.159(b)(3). Regarding the duty to assist, the record reflects that VA obtained all relevant documentation and provided the Veteran with adequate VA examinations. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As such, the Board finds that the duties to notify and assist the Veteran in this case have been fulfilled. Disability Rating Legal Authority Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. 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. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, 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 conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). The Veteran has appealed from the initial ratings assigned for the service connected left ankle limitation of motion and scarring. In Fenderson v. West, 12 Vet. App. 119, 125 26 (1999), the United States Court of Appeals for Veterans Claims (Court) addressed a similar appeal and directed that such appeal of the initial rating assigned following a grant of service connection was specifically not a claim for an increased disability rating. The Court also directed that separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. With some exceptions, words such as "severe," "moderate," and "mild" 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, is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. 1. An Initial 20 Percent Disability Rating for the Service-Connected Left Ankle Disability is Granted When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. Diagnostic Code 5271 contemplates disability of the ankle manifested by limitation of motion. Under this code, a 10 percent rating is assigned when limitation of motion is moderate, and a 20 percent rating is assigned when limitation of motion is marked. 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. Prior to February 7, 2021, the criteria in Diagnostic Code 5271 contained no specific objective "limited motion" measurements, and neither Diagnostic Code 5271 nor section 4.71a defined "moderate" or "marked" limitation of motion. VA amended numerous Diagnostic Codes, including DC 5271, as of February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76,460 (Nov. 30, 2020), as amended 85 Fed. Reg. 85,523 (Dec. 29, 2020), as amended 86 Fed. Reg. 8,142 (Feb. 4, 2021). Because the Veteran's appeal was pending prior to these amendments, the Board is required to analyze the claim under both versions of 38 C.F.R. § 4.71a, DC 5271, and whatever criteria is more favorable to the Veteran will be applied as of February 7, 2021. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (discussing the effect of changes in law or regulation during the pendency of an appeal). Following the February 2021 amendments, moderate limitation of motion is defined as less than 15 degrees of dorsiflexion or less than 30 degrees of plantar flexion, and marked limitation of motion is defined as less than 5 degrees of dorsiflexion and less than 10 degrees of plantar flexion. The Veteran is currently in receipt of an initial 10 percent disability rating for the service-connected left ankle disability. Having reviewed the evidence of record, lay and medical, the Board find that, during the entire initial rating period on appeal, from January 23, 2017, the service connected left ankle disability more nearly approximated marked limitation of motion, without ankylosis or symptoms consistent with a severe foot injury, to warrant the grant of an initial 20 percent disability rating. At a VA ankle examination in April 2017, the Veteran denied flare-ups of left ankle pain. Range of motion testing of the left ankle showed dorsiflexion to 10 degrees and plantar flexion to 35 degrees. The extent of motion lost following repetitive use over time was not provided; therefore, the Board will rely on the findings at the time of the October 2021 VA ankle examination when making this finding. Upon examination in April 2017, there was full muscle strength, no muscle atrophy, no ankylosis, and no other left ankle-related disabilities. Instability was noted. Functioning was not so diminished that the Veteran would have been equally served by amputation with prosthesis, and an assistive device for ambulation was not needed. At a VA ankle examination in October 2021, the Veteran again denied flare-ups of left ankle pain. Instability of the left ankle was noted, with reports that the instability would result in falls two-to-three times per month, with symptoms of pain and weakness, and that the left ankle symptoms made it difficult to bend, squat, stoop, or walk up and down inclines. Upon range of motion testing, the evidence showed dorsiflexion to 15 degrees and plantar flexion to 35 degrees. After repetitive use, dorsiflexion was further reduced to 10 degrees and plantar flexion was further reduced to 25 degrees. Upon examination there was no ankylosis, no instability, and no additional ankle disability. Functioning was not so diminished that the Veteran would have been equally served by amputation with prosthesis, and the Veteran did not need an assistive device for ambulation. The Veteran testified at a May 2021 virtual Board hearing. At that time, the Veteran testified to having pain, stiffness, and swelling that was treated with ice and antiinflammatory medications. Further, the Veteran testified to wearing compression socks during the day, and that the symptoms impacted the ability to stand or walk for prolonged periods of time. Review of the VA treatment records reflect left ankle symptoms of pain and instability. Per a February 2020 VA treatment record, the Veteran conveyed having pain at a level of four-to-six out of ten on the pain scale. Resolving reasonable doubt in the Veteran's favor, the Board finds that, for the entire initial rating period on appeal from January 23, 2017, the service connected left ankle disability manifested as marked limitation of motion, to warrant an initial 20 percent disability rating, the maximum available rating, under Diagnostic Code 5271. 38 C.F.R. § 4.71a. Specifically, after repetitive use dorsiflexion was reduced to 10 degrees (out of 20) and plantar flexion was reduced to 25 degrees (out of 45). While such ranges of motion do not necessarily reflect marked limitation of motion by themselves, when considered with the fact of instability in the left ankle that results in falls two-to-three times per month, the Board finds that the overall disability picture more nearly approximates marked limitation of motion. For these reasons, the Board will resolve reasonable doubt in favor of the Veteran to find that, for the initial rating period on appeal from January 23, 2017, the left ankle demonstrated "marked" limitation of motion, warranting a 20 percent disability rating. 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271; DeLuca. The Board has also considered whether a disability rating in excess of 20 percent was warranted at any point during the initial rating period from January 23, 2017. Here, a disability rating in excess of 20 percent would only be warranted for the service connected left ankle disability if there was ankylosis of the ankle (Diagnostic Code 5270) or if the disability manifested as a severe foot injury (Diagnostic Code 5284). The relevant evidence, including VA treatment records and the reports from the April 2017 and the October 2021 VA ankle examinations, does not reflect that the Veteran has ankylosis of the left ankle or the functional equivalent of ankylosis. As such, an increased disability rating under Diagnostic Code 5270 is not warranted. An increased disability rating of 30 percent would be warranted under Diagnostic Code 5284 if the service connected left ankle disability manifested as "severe" foot symptomatology. As discussed above, words such as severe are not defined in the Rating Schedule, and VA must evaluate all evidence to the end that decisions will be equitable and just. Having reviewed the evidence of record, the Board does not find that the Veteran's left ankle disability symptoms reach the level of "severe" as contemplated by the Rating Schedule. Per the above, the Veteran's left ankle symptoms manifest as painful limitation of motion, with dorsiflexion reduced to 10 degrees (out of 20) and plantar flexion reduced to 25 degrees (out of 45), instability that results in occasional falls, weakness, stiffness, swelling, and difficulty performing activities such as prolonged standing and walking, bending, squatting, stooping, or walking up and down inclines. While such symptoms are significant, the Board does not find they are of such severity to be contemplated as "severe" under Diagnostic Code 5284. The Board notes that in a February 2020 VA treatment record, the Veteran indicated that the pain was moderate (four-to-six out of ten on the pain scale), and the VA examination records show that the disability does not manifest as muscular atrophy, ankylosis, or other disabilities such as "shin splints," stress fractures, achilles tendonitis, achilles tendon rupture, or malunion of calcaneus (os calcis) or talus (astragalus). Further, the evidence shows that the Veteran does not use any assistive devices for ambulation, other than compression socks, and the Veteran continues to work as a police officer. Having reviewed all the evidence of record, lay and medical, the Board finds that the left ankle disability did not reflect severe symptomatology at any point during the relevant period on appeal. Rather, upon considering the Veteran's statements concerning the severity of these symptoms, along with the other evidence of record, the Board finds that, at most, the evidence describes symptoms contemplated as moderately severe under Diagnostic Code 5284. For these reasons, an initial disability rating in excess of 20 percent for the service connected left ankle disability is not warranted under Diagnostic Code 5284. 38 C.F.R. §§ 4.3, 4.7, 4.71a. 2. An Initial Compensable Disability Rating for Left Ankle Surgical Scarring is Denied Prior to August 13, 2018, per the rating schedule, burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear in an area or areas of at least 6 square (sq.) inches (39 sq. centimeters (cm.)) but less than 12 square inches (77 sq. cm.) will be assigned a 10 percent rating. A scar in an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.) will be assigned a 20 percent rating. A scar in an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.) will be assigned a 30 percent rating. A scar in an area or areas of at least 144 square inches (929 sq. cm.) or greater will be assigned a 40 percent rating. Note (1) indicates that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7801. Burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear in an area or areas of 144 square inches (929 sq. cm.) or greater will be assigned a 10 percent rating. Note (1) indicates that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7802. Effective August 13, 2018, during the course of the appeal, the criteria for rating skin/scar disabilities were revised. See 83 Fed. Reg. 32592 (July 13, 2018); 83 Fed. Reg. 38663 (Aug. 7, 2018). The Secretary of VA has determined that "claims pending prior to [August 13, 2018] will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied." 83 Fed. Reg. at 32593. In other words, the August 13, 2018 amended skin rating criteria can be applied retroactively, if more favorable to the Veteran. See generally VAOPGCPREC 3-2000, 7-2003. As the instant matter was pending prior to the August 13, 2018 revisions, the Veteran's increased rating claim for the knee and foot scarring must be considered under both sets of rating criteria for the skin - the rating criteria both before and after August 13, 2018. See again 83 Fed. Reg. at 32593 (emphasis added). The August 13, 2018 skin/scar amendments introduce a General Rating Formula for skin conditions and amend Diagnostic Codes 7801 and 7802 by characterizing multiple scars by 6 body zones affected rather than by extremity. In addition, under the August 2018 amendments, two or more skin conditions may be combined in accordance with § 4.25 only if separate areas of skin are involved. If two or more skin conditions involve the same area of skin, then only the highest evaluation shall be used. See 38 C.F.R. § 4.118(b) (August 13, 2018). Relevant to the instant matter, following the August 13, 2018 revision, Diagnostic Code 7801 remains essentially the same, except that "deep and nonlinear" has been changed to "underlying soft tissue damage". Further, Diagnostic Code 7802 remains essentially the same, except that "superficial and nonlinear" has been changed to "not associated with underlying soft tissue damage". Diagnostic Codes 7804 and 7805 were not affected by the August 13, 2018 skin/scar amendments. One or two scars that are unstable or painful will be assigned a 10 percent rating. Three or four scars that are unstable or painful will be assigned a 20 percent rating. Five or more scars that are unstable or painful will be assigned a 30 percent rating. Note (1) indicates 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, add 10 percent to the rating that is based on the total number of unstable or painful scars. 38 C.F.R. § 4.118, Diagnostic Code 7804. Any disabling effects of other scars (including linear scars), and other effects of scars rated under Diagnostic Codes 7800, 7801, 7802, and 7804 not considered in a rating provided under Diagnostic Codes 7800 through 7804 are to be rated under an appropriate diagnostic code. 38 C.F.R. § 4.118, Diagnostic Code 7805. Having reviewed all the evidence of record, lay and medical, the Board finds that, for the entire initial rating period on appeal, from January 23, 2017, the service connected left ankle surgical scarring manifested as one scar that was linear and deep/had underlying soft tissue damage, was not painful or unstable, did not cover an area or areas of at least 6 sq. in. (39 sq. cm.), and did not result in any disabling or other effects. The Veteran received a VA ankle examination in April 2017. At that time, the Veteran was noted to have a well-healed, asymptomatic, post-surgical linear scar of 8 cm. on the left ankle. A VA scar examination was performed in October 2021. At that time, the Veteran was reported to have a single left ankle scar that measured 5 cm. by 0.5 cm., which covered a combined total area of 2.5 square centimeters. The scar was noted to be deep/have underlying tissue damage. Upon examination the left ankle scar was neither painful nor unstable. Further, the VA examiner found no limitation of function or other pertinent physical findings, complications, conditions, signs, and/or symptoms related to the left-ankle surgical scar. The Veteran testified at a May 2021 Board hearing. Per the Veteran's testimony, the left ankle surgical scar was neither painful nor unstable. Review of the Veteran's VA treatment records also does not reflect any left ankle scarring symptoms beyond those discussed above. Having reviewed the evidence of record, lay and medical, the Board finds that an initial compensable disability rating for the service-connected left ankle surgical scarring is not warranted under either the old or new scar rating criteria. A compensable disability rating is not warranted under old or new Diagnostic Codes 7801 and/or 7802 because, while the Veteran's left ankle scar is deep/has underlying soft tissue damage, the scar does not cover an area of at least 39 square centimeters. Further, a compensable disability rating is not warranted under Diagnostic Code 7804, as the left ankle surgical scar is neither painful nor unstable. Finally, a compensable disabling rating is not warranted under Diagnostic Code 7805, as the evidence does not reflect that the left ankle surgical scar results in any limitation of function or other complications, conditions, signs, and/or symptoms. The evidence of record, both lay and medical, reflects that, for the entire initial rating period on appeal, from January 23, 2017, the service connected left ankle surgical scarring manifested as one scar that was linear and deep/had underlying soft tissue damage, was not painful or unstable, did not cover an area or areas of at least 6 square inches (39 square centimeters), and did not result in any disabling or other effects; therefore, for the reasons discussed above, the evidence does not support that the Veteran is entitled to a compensable disability rating, under either the old or new rating criteria, at any point during the initial rating period on appeals. As the preponderance of the evidence is against an initial compensable disability rating for the service connected left knee surgical scarring, the higher initial disability rating claim must be denied. 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Codes 7801 7805 (2018 & 2020). Extraschedular Claim Not Raised (Continued on the next page) The Board finds that neither the Veteran nor the record has raised a claim for extraschedular rating under 38 C.F.R. § 3.321(b) for any period for the initial rating issues on appeal. See Thun v. Peake, 22 Vet. App. 111 (2008); Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record); Yancy v. McDonald, 27 Vet. App. 484, 494 (2016), citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff'd, 226 Fed. Appx. 1004 (Fed. Cir. 2007) (holding that when 38 C.F.R. § 3.321(b)(1) is not "specifically sought by the claimant nor reasonably raised by the facts found by the Board, the Board is not required to discuss whether referral is warranted"). Further, as the evidence of record reflects that the Veteran is currently employed, the Board also finds that the issue of entitlement to a total disability rating for compensation purposes based on individual unemployability due to service connected disabilities (TDIU) is not before it at this time. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Blowers, 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.