Citation Nr: A21019529 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 210224-142523 DATE: December 7, 2021 ORDER Entitlement to a 20 percent rating, but no higher, for right ankle degenerative arthritis is granted. Entitlement to a 10 percent rating, but no higher, for left thigh scar is granted. REMANDED Entitlement to service connection for chronic back pain is remanded. FINDINGS OF FACT 1. The Veteran's right ankle degenerative arthritis has been manifested by marked limitation of motion throughout the period on appeal. 2. The Veteran's left thigh scar has been manifested by pain throughout the period on appeal. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 20 percent rating, but no higher, for right ankle degenerative arthritis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71a Diagnostic Code 5003-5271. 2. The criteria for entitlement to a 10 percent rating, but no higher, for left thigh scar have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.118 Diagnostic Code 7802. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 2012 to May 2015. He appeals a January 2021 rating decision denying entitlement to service connection for chronic back pain and increased ratings for right ankle arthritis and a left thigh scar. In June 2021, the Veteran testified before the undersigned Veteran's Law Judge. A transcript is of record. Increased Ratings Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection is required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Further, "[w]here 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 evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. The Court of Appeals for Veterans Claims (Court) clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011). Instead, the Court in Mitchell explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. 1. Entitlement to rating higher than 10 percent for right ankle degenerative arthritis. The Veteran seeks a higher rating for his right ankle disability. After a review of the evidence, the Board finds that a 20 percent rating, but no higher, is warranted throughout the period on appeal. The Veteran's right ankle degenerative arthritis is rated under Diagnostic Code (DC) 5271, which compensates for limitation of motion. Under this DC, a 10 percent rating is warranted for moderate limitation of motion (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion), whereas a 20 percent rating is warranted for marked limitation of motion (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion). 38 C.F.R. § 4.71a, Diagnostic Code 5271. The Veteran was afforded a VA examination in December 2020. He complained of sharp intermittent and throbbing pain in his right ankle after prolonged use. He reported moderate to severe weekly flare-ups and an inability to run, jump, or complete daily tasks that require standing, running, or climbing on ladders. His initial range of motion measurements at the time were 10 degrees of dorsiflexion and 25 degrees of plantar flexion. The examiner found no additional functional loss due to repetitive use, repeated use over time, or flare-ups. At his June 2021 hearing, the Veteran reported that he makes constant use of an ankle brace and estimated that he has maybe 60 percent range of motion compared to his right ankle. He clarified that some flare-ups are so severe that he cannot move the ankle at all. Overall, the weight of the evidence reflects that the Veteran's right ankle disability has been most accurately characterized by marked limitation of motion throughout the period on appeal. His competent and credible statements regarding functional limitations due to pain and stiffness in his right ankle indicate that he experiences less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion during a flare-up. However, at no time during the appeal does the evidence show ankylosis, functional or otherwise, in the Veteran's right ankle. For instance, the Veteran is able to treat the swelling with ice and resume activities. Accordingly, a 20 percent rating, but no higher, is warranted throughout the period on appeal. 2. Entitlement to a compensable rating for left thigh scar. The Veteran seeks a compensable rating for his left thigh scar. After a review of the evidence, the Board finds that a 10 percent rating, but no higher, is warranted throughout the period on appeal. The Veteran's left thigh scar is rated under DC 7802 or 7804, depending on the presence of instability or pain. Under DC 7802, a 10 percent rating is warranted for a scar (or scars) with an area of 144 square inches (929 sq. cm.) or greater. Under DC 7804, a 10 percent rating is warranted for a single scar that is either painful or unstable. 38 C.F.R. § 4.118 Diagnostic Codes 7802, 7804. As the medical evidence does not show underlying tissue damage and the Veteran only has a single service-connected scar, these are the only ratings available. At his June 2021 hearing, the Veteran indicated that scar itself is painful in addition to the underlying muscle injury. The Board notes that the Veteran is competent to describe observable symptoms, such as superficial pain, and his statements are credible in this regard. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Based on the Veteran's credible statements, the Board finds that his service-connected left thigh scar is painful. In summation, the Board finds that the Veteran's left thigh scar is painful. Accordingly, a 10 percent rating, but no higher, is warranted and the claim is granted. 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. REASONS FOR REMAND 1. Entitlement to service connection for chronic back pain is remanded. VA's duty to obtain a medical examination regarding a claim for entitlement to service connection has a low bar. The duty is triggered when there is (1) evidence of a current disability, or recurrent symptoms of a disability, (2) evidence establishing an in-service event or injury occurred that would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). That a disability may be related to the in-service event or injury is a low threshold. Upon careful review of the evidence, the Board finds that the duty to obtain a VA examination has been triggered. The Veteran contends that his chronic back pain is attributable to active service. He has submitted evidence, to include several photos, that indicates his chronic back pain is related to constant marching in heavy packs over rough terrain. Unfortunately, a medical opinion discussing a possible link between the Veteran's claimed back disability and active service has not been obtained. Therefore, there is insufficient evidence to decide the case and remand for a VA examination is necessary. Because this is a predecisional duty to assist error, remand is appropriate. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the etiology of his claimed back disability. The examiner is asked to identify all back disorders present. For each identified disorder, the examiner is asked to respond to the following inquiry: (a.) Is it at least as likely as not that the identified disorder had its onset during or is otherwise related to active service? The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. The complete rationale for all opinions should be set forth. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Daniel Ballinger, Associate Counsel