Citation Nr: 21071524 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 13-24 816 DATE: November 30, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for status post rupture, left Achilles' tendon, with limitation of motion and surgical ulcer is denied. Entitlement to a compensable disability rating for left Achilles' tendon scar is denied. FINDINGS OF FACT 1. The Veteran's left Achilles' tendon is not manifested by ankylosis, malunion, deformity, or astragalectomy. 2. The Veteran's left Achilles' tendon scars do not cover an area of 39 square centimeters, an area of 929 square centimeters, or are not painful or unstable. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 20 percent for status post rupture, left Achilles' tendon, with limitation of motion and surgical ulcer have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.1, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5270-5274 2. The criteria for entitlement to a compensable rating for left Achilles' tendon scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, DC 7800-7805 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from August 1977 to February 1981. These matters come before the Board of Veterans' Appeals (Board) from a September 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). These issues were previously remanded by the Board in August 2016 and January 2020 and have been returned for further adjudication. The Veteran is entitled to substantial compliance with all previous remand directives, Stegall v. West, 11 Vet. App. 268, 271 (1998), and while the Board concludes that the Agency of Original Jurisdiction has supplied substantial compliance to the Veteran, the claims for increased ratings must be denied. The Veteran appeared at a hearing before a Veterans Law Judge (VLJ) in May 2016, who is no longer available. The Veteran was informed of his right to an additional hearing in August 2021, to which he did not response. The Board will proceed with the record it has before it. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The U. S. Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations, VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995). However, these provisions are not for consideration where the veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). Ankle Disabilities The Veteran's Achilles' disability is currently evaluated at 20 percent pursuant to 38 C.F.R. § 4.71, DC 5310-5284. Hyphenated DCs are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis of the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Here the hyphenated DC indicates the Veteran's disability is rated, by analogy, under the criteria for other foot injuries. DC 5270 pertains to ankylosis of the ankle and provides for a 20 percent rating where there is ankylosis of the ankle in plantar flexion, less than 30 degrees. A 30 percent rating is warranted where there is ankylosis of the ankle in plantar flexion, between 30 and 40 degrees, or in dorsiflexion, between zero and 10 degrees. A 40 percent rating is warranted where there is 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. Under DC 5271, a maximum rating of 20 percent disabling is available where the limitation of motion in the ankle is marked. Id. Normal ankle motion is dorsiflexion to 20 degrees, and plantar flexion to 45 degrees. 38 C.F.R. § 4.71a, Plate II. DC 5272 pertains to ankylosis of the subastragalar or tarsal joint and provides for a 10 percent rating where such is in good weight-bearing position and a 20 percent rating where such is in poor weight-bearing position. DC 5273 pertains to malunion of the os calcis or astragalus and provides for a 10 percent rating where there is moderate deformity and a 20 percent rating where there is marked deformity. DC 5274 provides for a 20 percent rating for an astragalectomy. Scars The Veteran's left Achilles' tendon scar is currently rated at 0 percent under DC 7805. Diagnostic Codes 7800 to 7805 pertain to scars. 38 C.F.R. § 4.118. The Board notes that, effective August 13, 2018, during the course of this appeal, VA amended its regulations governing skin disabilities. VA's intent is that claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. For applications filed on or after the effective date, only the new criteria will be applied. 83 Fed. Reg. 32592 (July 13, 2018). Diagnostic Code 7800 deals with scars of the head, face, or neck and is not applicable to this claim. Diagnostic Code 7801 provides for a 10 percent disability evaluation for a scar that is not of the head, face, or neck, that is deep and nonlinear (old code) or associated with underlying soft tissue damage (amended code), and that has an area of at least 6 square inches (39 sq. cm.). Higher ratings are available if larger areas are affected. Under the old code, a "deep scar" is defined as one associated with underlying soft tissue damage. The old and amended codes also differ regarding instructions for totalling the area affected when there is more than one qualifying scar. Diagnostic Code 7802 provides for a 10 percent disability evaluation for a scar not of the head, face, or neck, that is superficial and nonlinear (old code) or not associated with underlying soft tissue damage (amended code) and which covers an area of at least 144 square inches (929 sq. cm.) or more. No higher ratings are available under either version of this code. Under the old code, a "superficial scar" is defined as one not associated with underlying soft tissue damage. The old and amended codes also differ regarding instructions for totalling the area affected when there is more than one qualifying scar. Diagnostic Code 7804 provides for a 10 percent disability evaluation for one or two scars that are unstable or painful. A 20 percent disability evaluation is assigned where there are three or four scars that are unstable or painful. A 30 percent disability evaluation is assigned where there are five or more scars that are unstable or painful. An unstable scar is one where there is frequent loss of skin covering over the scar. If one or more scars are both unstable and painful 10 percent is added to the evaluation. Under the new and amended codes, pursuant to Diagnostic Code 7805, a scar may be rated on any disabling effect(s) not considered as part of Diagnostic Codes 7801 to 7804. 1. Entitlement to a rating in excess of 20 percent for status post rupture, left Achilles' tendon, with limitation of motion and surgical ulcer. The evidence available for review begins in January 2011 with a VA examination provided to the Veteran regarding his Achilles' tendon. The Veteran reported pain and dysfunction in his left ankle, saying it would hurt during the workday, that he could no longer work six hours before pain developed, and that it would become difficult to keep his work limits within the range with which he could remain comfortable. He explained he could stand for three hours and sit for two hours but over that period of time, pain would develop. The Veteran also reported flareups occurring two times a day, would last 20 minutes, were an eight out of 10 on the pain scale, and were brought on by activity and resolved through rest. The examiner's review found a 2-inch scar on the Veteran's left ankle. The scar was not tender, and the ankle appeared normal, without swelling, redness, or inflammation. The ankle's range of motion (ROM) was to 10 degrees plantar flexion and eight degrees dorsiflexion, both without pain. The clinician noted that the Veteran's left ankle ROM was markedly restricted and that his gait was slightly awkward. The Veteran next underwent a VA examination in September 2013. He was diagnosed with a ruptured Achilles' tendon post repair left. The Veteran reported he had Achilles' pain at the end of the workday, but no flareups were reported. His active ROM was 30 degrees plantar flexion and 10 degrees dorsiflexion, both without pain. The examiner noted the Veteran had functional loss in the form of less movement than normal in his left ankle. The Veteran's ankle strength during plantar flexion and dorsiflexion was noted as four out of five. No instability or ankylosis was noted. The Veteran testified at a Board hearing in May 2016. The Veteran stated he had to stretch every morning and take Ibuprofen to reduce the limitations and pain of his disability. He described his ankle as painful and with less movement, often stiffening up, especially in cold weather. The Veteran explained his ankle limited his activities, offering the example of being able to dance with his wife. Dancing would result in his ankle stiffening and becoming painful. The Veteran was later afforded a VA examination in October 2016. The Veteran stated he believed his ankle pain had worsened. The Veteran reported his ankle would stiffen and lock since around 1995. He said he had no work restrictions from his ankle, but he would have Achilles' pain at the end of work. He also said he did not suffer flareups. The examiner evaluated the Veteran's left ankle ROM, recording it as 35 degrees plantar flexion and 5 degrees dorsiflexion. Pain was noted during ROM testing, but no functional loss was due to the pain. No pain was shown in weight bearing, nor was tenderness, crepitus, or loss of function or ROM on repeated use found. The Veteran's muscle strength was normal during plantar flexion but was four out of five on dorsiflexion. The clinician noted no muscle atrophy, ankylosis, or joint instability of the left ankle. July 2018 VA treatment records document the Veteran complaining of pain in his ankle three times a week. His gait was noted as steady. The Veteran underwent X-rays at the time which showed no acute findings, but remarked the Veteran had moderate tenderness upon palpation of his left ankle. Most recently, the Veteran underwent a VA examination in June 2021. The Veteran explained that his symptoms were intermittent left ankle pain, made worse with prolonged walking or standing. He said his ankle would not swell but would sometimes lock. The pain was described as numb and achy and a five to seven out of 10 on the pain scale. The Veteran reported flareups that would occur a couple times a month and last 2 to 4 hours each time. The ankle would throb and be painful in bearing weight. The flareups were caused by prolonged walking or standing and alleviated by rest. The left ankle's active ROM testing revealed 35 degrees plantar flexion with pain noted and 15 degrees dorsiflexion with no pain noted. ROM was the same during passive motion as it was during active. Repetitive use ROM was not tested because pain limited the Veteran's functional ability. The clinician estimated repetitive use ROM as 30 degrees plantar flexion and 5 degrees dorsiflexion. The examination was not conducted during a flareup, but the clinician estimated the Veteran's ROM during a flareup as being 25 degrees plantar flexion and 0 degrees dorsiflexion. Pain was observed during weight-bearing, active and passive ROM, but not during non-weight bearing. The examiner discerned that prolonged sitting, standing, and walking increase pain and decreased mobility and function. The examiner also found there to be no evidence of crepitus, localized tenderness, muscle atrophy, ankylosis, or instability. Based on a review of the record, the Board finds that the preponderance of the evidence is against assigning an increased rating for the Veteran's disability. As illustrated above, the Veteran's only avenue for a rating higher than 20 percent is if his ankle was ankylosed. A 30 percent rating under DC 5270 is warranted where there is ankylosis of the ankle in plantar flexion, between 30 and 40 degrees, or in dorsiflexion, between zero and 10 degrees. A 40 percent rating under DC 5270 is warranted where there is 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. At no point during the period on appeal did the Veteran's disability manifest ankylosis. None of the VA examinations or treatment records show ankylosis in the Veteran's left ankle. Therefore, entitlement to a higher evaluation for the Veteran's Achilles' disability is denied. 2. Entitlement to a compensable rating for left Achilles' tendon scar. The evidence relevant to this claim begins in September 2013 with a VA examination of the Veteran's left Achilles' tendon scar. One scar was observed by the clinician. It was described as superficial, non-linear, 7 centimeters (cm) by .5 cm, with a total area of 3.5 square centimeters (sq. cm), and with no limitation of function. During the Veteran's May 2016 Board hearing, he testified that his left Achilles' tendon scar would have build-up that would grow on the scar each month that the Veteran would remove with his hand. He also stated the scar was not painful. In October 2016, the Veteran was afforded a VA examination of his scar. The Veteran stated the only change from his September 2013 VA examination is the build-up on his scar that he removes every month. He stated the scar did not cause any pain. The examiner noted two scars. One scar was 2 cm by 1 cm and the other 7 cm by .5 cm. Both scars covered a total area of 5.5 sq. cm and were deemed stable. Another VA examination was provided to the Veteran in June 2021. The Veteran stated his scar had worsened. He reported a scab would form over the scar each month and the Veteran would pick the scab off. He denied the scar caused him any pain. The clinician observed two scars, one being 2 cm by .8 cm and the other being 6.7 cm by .4 cm. The total area affected by the scar was 4.2 sq. cm. Neither scar was unstable, due to a burn, tender, had soft tissue damage, or caused limitation of function. As mentioned above, a compensable rating under DC 7801 requires a scar that is deep and nonlinear or associated with soft tissue damage, and that has an area of at least 6 square inches (39 sq. cm). The evidence does not show the Veteran's scars to cover an area of at least 39 sq. cm. The Veteran's largest measurement was in his October 2016 VA examination that found his scars to cover a total area of 5.5 sq. cm. As such, the Veteran's scars do not qualify for a compensable rating under DC 7801. A compensable rating under DC 7802 requires a scar to be superficial and nonlinear or not associated with underlying soft tissue damage, and which covers an area of at least 144 square inches (929 sq. cm) or more. The evidence does not show the Veteran's scars to cover an area of at least 929 sq. cm. The Veteran's largest measurement was in his October 2016 VA examination that found his scars to cover a total area of 5.5 sq. cm. As such, the Veteran's scars do not qualify for a compensable rating under DC 7802. A compensable rating under DC 7804 requires one or two scars to be unstable or painful. The evidence, including the Veteran's lay statements, show the Veteran's scars to be painless. While the Veteran reports removing build-up over his scar, at no point does a VA examiner indicate the Veteran's scars are unstable. As such, the Veteran's scars do not qualify for a compensable rating under DC 7804. A compensable rating under DC 7805 is for any disabling effect not considered by DC 7801 to DC7804. The only effect of the Veteran's scars is the painless removal of build-up around the scar once per month with his hand. The Veteran's VA examinations indicate there is no functional loss, or disabling effect, due to his scars. As such, the Veteran's scars do not qualify for a compensable rating under 7805. In summary, the Board finds that a compensable rating for the Veteran's scars is not warranted. K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lee Feldman, 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.