Citation Nr: 21068257 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 15-32 556 DATE: November 9, 2021 ORDER Prior to November 15, 2019, an initial rating in excess of 10 percent for a right ankle disorder status post Achilles tendon rupture with repair (right ankle disability) is denied. From November 15, 2019, a rating of 20 percent, but not higher, for right ankle disability is granted. An initial rating in excess of 10 percent for right ankle scar is denied. An effective date prior to September 30, 2013, for the award of service connection for right ankle disability is denied. An effective date prior to September 30, 2013, for the award of service connection for right ankle scar is denied. REMANDED Service connection for a temporomandibular joint disorder (TMJ). FINDINGS OF FACT 1. Prior to November 15, 2019, the Veteran's right ankle disorder approximated no worse than moderate limitation of motion with pain. 2. From November 15, 2019, the Veteran's right ankle disorder approximated marked limitation of motion, to include pain, swelling and significantly reduced motion. Ankylosis has not been shown. 3. The Veteran's scar of the right ankle is painful. 4. The Veteran's last period of active duty service ended in April 1995 and he had no further periods of active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA). 5. The Veteran submitted his claims for service connection for a right ankle disorder and a scar of the right ankle in September 2013. CONCLUSIONS OF LAW 1. Prior to November 15, 2019, the criteria for an initial rating in excess of 10 percent for the right ankle disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5271. 2. From November 15, 2019, the criteria for a rating of 20 percent, but not higher, for the right ankle disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a, DC 5271. 3. The criteria for an initial rating in excess of 10 percent for scar, right ankle have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.118, DC 7804. 4. The criteria for an effective date prior to September 30, 2013, for the award of service connection for a right ankle disorder have not been met. 38 U.S.C. § 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.400. 5. The criteria for an effective date prior to September 30, 2013, for the award of service connection for scar, right ankle have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1982 to April 1995 with additional service in the Air Force Reserve. The case is on appeal from an April 2014 rating decision. In November 2019, the Veteran testified at a Board hearing. In an April 2020 decision, the Board granted service connection for degenerative spondylosis of the cervical spine, headaches, a right shoulder disorder manifested by pain and a left shoulder disorder manifested by pain. The Board also granted intermediary increases to 10 percent for service-connected right ankle disability and right ankle scar. At that time, the Board also remanded the remaining claims on appeal for further development. When the case was in remand status, in a March 2021 rating decision, the RO increased the right ankle rating to 20 percent effective January 5, 2021. The increased rating matter remains in appellate status as the maximum ratings have not been assigned for the entire period on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In addition, in the March 2021 rating decision, the granted service connection for a right hip disability, and right and left leg disabilities. Thus, those issues are no longer on appeal. 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). Although the Board is remanding another claim for additional development, remand is not necessary for the issues decided herein, as there is no reasonable possibility that further assistance would substantiate the claims. See 38 C.F.R. § 3.159(d). Increased Rating General Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. 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 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Staged ratings must be considered, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). An effective date for an increased rating should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that the disability first manifested. Accordingly, the effective date for an increased rating-as well as for an initial rating or for staged ratings-is predicated on when the increase in the level of disability can be ascertained. Swain v. McDonald, 27 Vet. App. 219, 224 (2015); DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011). The Board notes VA revised the rating criteria for evaluating musculoskeletal disorders, effective February 7, 2021. See 85 Fed. Reg. 230 (Nov. 30, 2020, as corrected). Generally, a change in rating criteria during the pendency of the claim applies prospectively, if more favorable. 1. An initial rating in excess of 10 percent for right ankle disability prior to January 4, 2021; and in excess of 20 percent thereafter. Specific Legal Criteria The Veteran's right ankle disorder is rated under 38 C.F.R. § 4.71a, DC 5271, for limitation of motion of the ankle. Under DC 5271, a 10 percent rating is warranted for moderate limited motion of the ankle (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion). A maximum 20 percent rating is warranted for marked limited motion of the ankle (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion). A rating for an ankle disability may be assigned a rating higher than 20 percent under DC 5270, if ankylosis is present. Under DC 5270, a 30 percent rating is warranted for ankylosis of the ankle in plantar flexion between 30 degrees and 40 degrees, or in dorsiflexion, between zero degrees and 10 degrees. A maximum 40 percent rating is warranted 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. As noted above, VA revised the rating criteria for evaluating ankle disorders, effective February 7, 2021. See 85 Fed. Reg. 230 (Nov. 30, 2020). Here, the changes to DC 5271 essentially defined "moderate" and "marked" in terms of range of motion. Facts The Veteran seeks an increased rating for his right ankle disability. Following the Veteran's September 2013 claim, he was afforded a February 2014 VA examination in which he reported pain in the right heel and ankle since 1995, when he ruptured his Achilles tendon and underwent surgery. He indicated he suffers from flare-ups, including pain which worsens with certain activities. Range of motion testing revealed no limitation in motion with plantar flexion and dorsiflexion. The Veteran reported his right ankle pain limits his ability to walk for significant periods of time. An August 2016 private medical record indicated the Veteran experiences chronic right ankle pain. The Veteran was afforded a November 2019 Board hearing in which he indicated his right ankle disability has worsened, including increased pain, fatigue and reduced movement. He stated it is difficult to walk for extended distances and he experiences right ankle cracking and popping. The claim came before the Board in April 2020 and it increased the initial right ankle rating to 10 percent. The Board also remanded the claim for a rating in excess of 10 percent for further development, including a VA examination. The Veteran was afforded a January 2021 VA examination in which he reported flare-ups of the right ankle which occur daily. He stated his flare-ups are severe, can last minutes up to several hours, and are precipitated by walking or tripping. The Veteran reported his flare-ups are alleviated by elevation and analgesics. The Veteran further stated that he has difficulty walking for long distances and can not run or participate in recreational activities that require ankle movement. Testing revealed dorsiflexion limited to 5 degrees and plantar flexion to 15 degrees. The examiner indicated pain during testing and with weight bearing, as well as tenderness and evidence of crepitus. The examiner found no additional loss of function of range of motion after repetition, and he reported the examination is medically consistent with the Veteran's statements describing functional loss during flare-ups. He additionally stated flare-ups reduce the Veteran's range of motion to zero degrees of dorsiflexion and plantar flexion. The examiner indicated the Veteran has muscle atrophy with no ankylosis. He stated the Veteran has an altered gait with limited movement of the right ankle and there is evidence of pain on passive range of motion and in non-weight bearing testing. Analysis The Board finds from November 15, 2019, the date of the Board hearing, the Veteran's right ankle has approximated marked limitation of motion and thus, an increased rating to 20 percent is warranted. This is the maximum schedular rating permitted for limited motion of the ankle under DC 5271, without evidence of ankylosis which was not shown. Prior to November 15, 2019, a rating in excess of 10 percent for the right ankle disorder is not supported. For the initial rating period prior to November 15, 2019, the Veteran's right ankle disability manifested no worse than moderate limited motion, suggestive of the current 10 percent rating under DC 5271. The Veteran experienced limited, if any, reduction in range of motion, although he did experience ongoing pain. As noted, range of motion testing during the February 2014 VA examination indicated no limitation in plantar flexion and dorsiflexion. Thus, the Veteran's right ankle symptoms prior to November 15, 2019, are moderate rather than marked in nature and an increased initial rating is not warranted. The Board notes "moderate" is "tending toward the mean or average amount or dimension." See https://www.merriam-webster.com/dictionary/moderate. "Marked" is "having a distinctive or emphasized character." See https://www. merriam-webster.com/dictionary/marked. Given the range of motion testing, and even with consideration of painful motion, the Board finds that the evidence shows limitation of motion of the right ankle to no worse than a moderate level prior to November 15, 2019. From the date of the November 2019 Board hearing, the Board determines the Veteran's right ankle disorder approximates marked limitation of motion and an increased rating to 20 percent is warranted. During the hearing, the Veteran indicated his right ankle disability had worsened, including increased pain, fatigue and reduced movement. Thereafter, the January 2021 VA examiner indicated the Veteran has severe flare-ups and significantly reduced range of motion. Testing revealed dorsiflexion limited to 5 degrees and plantar flexion to 15 degrees, and the examiner noted during the Veteran's flare-ups, his range of motion is essentially reduced to zero degrees. As such, the evidence supports a maximum 20 percent rating is warranted under DC 5271 from November 15, 2019, for the right ankle disorder, when affording the Veteran all reasonable doubt. The Board finds November 15, 2019, is the earliest date a factually ascertainable increase occurred. See Swain, 27 Vet. App. at 219. Thus, the Veteran is in receipt of the highest schedular rating for limited motion of the ankle from November 15, 2019, and there is no basis to award a higher rating without the presence of ankylosis or functional ankylosis, which has not been shown. See 38 C.F.R. § 4.71a, DC 5271. In sum, the Board finds the preponderance of the evidence is against an initial rating in excess of 10 percent for the Veteran's right ankle disorder prior to November 15, 2019. However, from that date, a 20 percent rating is warranted when affording the Veteran all reasonable doubt. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 2. An initial rating in excess of 10 percent for scar of the right ankle. Specific Legal Criteria The Veteran's right ankle scar is rated under DC 7804. Under DC 7804, a 10 percent rating is warranted for one or two scars that are unstable or painful. 38 C.F.R. § 4.118, DC 7804. 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 DC 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 states 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 states scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an evaluation under this DC, when applicable. The Board notes that changes were made to some DCs under 38 C.F.R. § 4.1118 effective August 31, 2018; however, the relevant criteria for the Veteran's right ankle scar disability are essentially the same for the periods both before and after August 31, 2018. Analysis The Veteran seeks an increased rating for his right ankle scar disorder. The Veteran has a right ankle scar as a result of his 1995 Achilles tendon surgery. He was afforded a February 2014 VA examination in which the examiner determined the Veteran's scar is not painful or unstable. However, an August 2016 medical report indicated the Veteran's right Achilles tendon is tender and he has some residual scar sensitivity even 20 years later. The examiner noted consideration of a Lidoderm patch. The Veteran testified at the November 2019 Board hearing that his scar is tender to the touch and is always painful during movement. The Veteran also asserted his scar is unstable. The claim came before the Board in April 2020 and it increased the right ankle scar rating to 10 percent. It also remanded the claim for an initial scar rating in excess of 10 percent for a VA examination. The Veteran was afforded a January 2021 VA examination in which he reported his right ankle scar had become hypersensitive to the touch and he experienced burning and stinging pain along the scar. The examiner found pain but indicated the scar is not unstable and he does not have frequent loss of covering of the skin over the scar area. The examiner noted he can not tolerate the pressure of socks, shoes or boots touching the area. The Board finds that an initial rating in excess of 10 percent for the right ankle scar is not warranted. In this regard, the medical evidence supports that the Veteran has one scar that is extremely painful but not unstable. As such, no greater than a 10 percent rating under DC 7804 is supported. The Board acknowledges the Veteran's reports of increased pain and sensitivity to the right ankle scar region, including during the November 2019 Board hearing and January 2021 VA examination. However, under DC 7804, a rating in excess of 10 percent is not warranted for one scar that is found to be painful. In sum, the evidence shows that the Veteran's right ankle scar rating has resulted in pain but is not unstable. As such, the preponderance of the evidence is against the claim. Therefore, the benefit-of-the-doubt doctrine is not applicable and an initial rating in excess of 10 percent for the right ankle scar is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Effective Date General Legal Criteria Generally, the effective date of an award is the date after separation from service or date entitlement arose, whichever is later, for claims filed within one year of separation; or the date the claim was received by VA or the date entitlement arose, whichever is later, for claims filed more than one year after separation from service. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 38 U.S.C. § 5110(b)(1) authorizes an effective date of "the day following the date of the veteran's discharge or release if application thereof is received within one year from such date of discharge or release." But 38 U.S.C. § 101(18) defines "discharge or release" as including "(A) retirement from the active military, naval or air service, and (B) the satisfactory completion of the period of active military, naval, or air service for which a person was obligated at the time of entry into such service in the case of a person who, due to enlistment or reenlistment, was not awarded a discharge or release from such period of service at the time of such completion thereof and who, at such time, would otherwise have been eligible for the award of a discharge or release under conditions other than dishonorable." The essential elements for any claim, whether formal or informal, are "(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing." Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see also 38 C.F.R. § 3.155. Effective March 24, 2015, VA amended the claims filing process to require the filing of proper standard forms. 3. An effective date prior to September 30, 2013, for the award of service connection for right ankle disability. 4. An effective date prior to September 30, 2013, for the award of service connection for right ankle scar. The Veteran contends that earlier effective dates are warranted for the award of service connection for the right ankle disorder and right ankle scar, prior to September 30, 2013. He asserts he retired from the Air Force on December 1, 2012 and that his service connection effective dates may be that date or earlier. He stated he separated from active service in December 2012 and his service connection claims were submitted in September 2013, within one year of his separation from service. Following the April 2014 rating decision, the Veteran submitted a notice of disagreement (NOD) which challenged the effective date of the awards of the service-connected right ankle and right ankle scar disabilities. He further submitted a September 2015 substantive appeal in which he stated he was on active duty through November 30, 2012 and retired on December 1, 2012, which should be the effective dates for service connection. After review of the records, including the service personnel records, the Board finds earlier effective dates for the award of service connection prior to September 30, 2013 are not warranted for the right ankle disorder and right ankle scar. The Veteran's service records suggest that he had active duty service until April 1995. From April 1995 to December 2012, the Veteran served in the Air Force Reserve and he had no additional active service periods, including ACDUTRA or INACDUTRA, following April 1995. The Board finds the Veteran's DD 214 reflects that his last day of active duty was April 30, 1995, and this date is confirmed by all other service personnel records in the claims file. The Board acknowledges the Veteran's contention and his lengthy period in the Air Force Reserve. However, as noted above, the effective date of an award is the date after separation from service or date entitlement arose, whichever is later, for claims filed within one year of separation; or the date the claim was received by VA or the date entitlement arose, whichever is later, for claims filed more than one year after separation from service. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. As the Veteran's claims were filed more than one year after his separation from service, the earliest possible effective date for such service connection claims is the date the initial claims were submitted, September 30, 2013. In sum, despite the Veteran's September 2015 substantive appeal, earlier effective dates are not warranted for the award of service connection for the right ankle disorder and right ankle scar. The preponderance of the evidence is against the claims and the benefit of the doubt doctrine is not further applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Thus, earlier effective dates for service connection are not warranted for right ankle disability and right ankle scar prior to September 30, 2013. REASONS FOR REMAND Service connection for TMJ. The Veteran contends that he has TMJ or other jaw disorder, with jaw pain that is related to his in-service duties as a fighter pilot. During the November 2019 Board hearing, the Veteran reported he injured his jaw during a parachute landing in service. He stated his jaw currently pops out when he opens his mouth wide, and this causes pain. The claim was remanded by the Board in April 2020 for further development. A December 2020 VA opinion was submitted after a records review. The examiner reported after review of the Veteran's military records, the Veteran has no documented record of a diagnosis of TMJ. The examiner stated for this reason, the claimed condition of TMJ is less likely than not incurred in or caused by service. The Board finds an additional VA examination is warranted. The December 2020 examiner relied solely on a lack of a diagnosis or treatment found in the record to conclude that the Veteran's claimed TMJ is not related to service. The Board finds the Veteran should be afforded a VA examination to determine if a TMJ is diagnosed, and if so, whether such is related to service, to include his in-service duties as a fighter pilot. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination by an appropriate medical professional to determine the nature and etiology of his TMJ, if diagnosed. The examiner should identify whether a diagnosis of a TMJ is established. The examiner should address the Veteran's contention of pain when opening his mouth wide. The examiner should then provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's TMJ had its onset during, or is otherwise related to, service, to include his in-service duties as a fighter pilot. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Isaacs, Brandon 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.