Citation Nr: 21006915 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 17-50 062A DATE: February 5, 2021 ORDER Entitlement to an initial 10 percent rating, but no higher, for right ankle scar associated with right ankle osteoarthritis is granted. REMANDED Entitlement to service connection for a right hip condition, to include as secondary to service-connected degenerative changes L1-S1 and service-connected right ankle osteoarthritis, is remanded. Entitlement to service connection for a right knee condition, to include as secondary to service-connected degenerative changes L1-S1 and service-connected right ankle osteoarthritis, is remanded. Entitlement to an increased rating above 20 percent for degenerative changes L1-S1 is remanded. Entitlement to an increased rating above 10 percent for right ankle osteoarthritis is remanded. FINDING OF FACT Throughout the appeal period, the Veteran’s right ankle scars have been painful, but the evidence does not indicate that they have been unstable. CONCLUSION OF LAW The criteria for entitlement to an initial 10 percent rating, but no higher, for right ankle scar associated with right ankle osteoarthritis have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.118, Diagnostic Codes (DCs) 7804 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had qualifying service from May 1987 to September 1987, December 1990 to May 1991, December 2003 to March 2005, and December 2007 to October 2010. See DD Form 214s. In September 2020, the Veteran testified at a Board Virtual Hearing before the undersigned Veterans Law Judge. 1. Entitlement to an initial compensable rating for right ankle scar associated with right ankle osteoarthritis In determining the severity of a disability, the Board applies the criteria set forth in the Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If the disability more closely approximates the criteria for the higher of two ratings, the higher rating is assigned. 38 C.F.R. § 4.7. This scar has been rated under DC 7805 at zero percent since June 28, 2016. 38 C.F.R. § 4.118, DC 7805; January 2020 Codesheet. Under DC 7805, scars and other effects of scars are evaluated under DC’s 7800, 7801, 7802, 7804, or another appropriate DC. 38 C.F.R. § 4.118, DC 7805. In this case, DC 7800 is not applicable because the ankle scars are not burn scars, DC 7801 is not applicable because the evidence does not indicate that the ankle scars are associated with underlying soft tissue damage, and DC 7802 is not applicable because the scars do not have areas of 144 square inches or greater; however, DC 7804 is appropriate because it contemplates scars that are unstable and/or painful. 38 C.F.R. § 4.118, DC’s 7800, 7801, 7802, 7804, 7805. Notably, in an April 2017 Rating Decision, the agency of original jurisdiction (AOJ), in pertinent part, granted entitlement to service connection for right ankle scar and assigned a zero percent rating effective June 28, 2016. The Veteran timely appealed for an increased rating (see May 2017 Notice of Disagreement and October 2017 VA Form 9); thus, the current appeal period starts on June 28, 2016. 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. A 20 percent rating is warranted for three or four scars that are unstable or painful. Id. A 30 percent (maximum schedular) rating is warranted for five or more scars that are unstable or painful. Id. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id at Note (1). If one or more scars are both unstable and painful, VA adds 10 percent to the evaluation that is based on the total number of unstable or painful scars. Id at Note (2). The March 2017 VA ankle conditions examiner documented two right ankle scars: (1) lateral ankle (15 cm long and 0 cm wide); and (2) anterior ankle (4 cm long and 1 cm wide). The examiner also noted that there was no evidence that these scars were painful, were unstable, had a total area equal to or greater than 39 square cm (6 square inches), or were located on the head, face, or neck. During the September 2020 Board hearing, the Veteran testified, in pertinent part, that: his scar was painful; he tapes pads over the scar before putting on socks and boots to help mitigate some of the pain; and the scar is painful when it pushes against his boots. Based on the evidence above, the Board finds that, throughout the appeal period, the Veteran’s right ankle scars have been painful. Specifically, the Veteran is competent to report pain because it is lay observable through his own senses; thus, the Board defers to the Veteran’s identification of pain. Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, higher ratings are precluded because the evidence does not indicate that the scars have been unstable and because there are no more than two scars. As such, 10 percent is the highest schedular rating currently allowed for this disability; thus, the Board grants entitlement to an initial 10 percent rating, but no higher, for right ankle scar. REASONS FOR REMAND 1. Entitlement to service connection for a right hip condition Secondary service connection may be granted for disabilities which were proximately due to, the result of, or aggravated beyond natural progression by a service-connected disability. 38 C.F.R. § 3.310(a). On June 14, 2019, the Court issued the precedential decision in Ward v. Wilkie, 17-1204, holding that a “permanent worsening” of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability). The Veteran generally contends that he has a right hip condition that is secondary to his service-connected degenerative changes L1-S1 and service-connected right ankle osteoarthritis. See February 2017 VA Form 21-526EZ (the Veteran contended that his right hip condition was secondary to abnormal gait from his low back and ankle conditions); September 2020 Board hearing transcript (the Veteran described right hip pain with functional loss, but was unsure of whether it was a stand-alone condition or part-and-parcel of sciatica from his low back). The March 2017 VA hip and thigh examiner found no right hip disability; although the Veteran reported pain, there was no functional loss reported or observed. During the September 2020 Board hearing, the Veteran described right hip pain with functional loss (pain interfering with walking such that he feels like he could collapse), but was unsure of whether it was a stand-alone condition or part-and-parcel of sciatica from his low back. Thus, because the Board has remanded the low back claim herein (discussed below), in part, to examine whether any neurological abnormalities are attributable to the low back, the Board finds that the right hip claim is inextricably intertwined with the low back claim and must be remanded concurrently. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other); Gurley v. Peake, 528 F.3d 1322 (Fed. Cir. 2008) (remand of inextricably intertwined claims was warranted for reasons of judicial economy even in absence of administrative error). Specifically, the AOJ must examine: (a) whether any neurological abnormalities are attributable to the low back; (b) if any neurological abnormalities are attributable to the low back, then whether there is any separate disability of the right hip causing pain with functional loss (or whether the right hip pain and functional loss is part-and-parcel of the neurological abnormalities); and (c) if there is any separate disability of the right hip causing pain with functional loss, then whether that disability is secondary to the service-connected low back condition and/or the service-connected right ankle osteoarthritis (including whether it is secondary to abnormal gait from his low back and ankle conditions). 2. Entitlement to service connection for a right knee condition Secondary service connection may be granted for disabilities which were proximately due to, the result of, or aggravated beyond natural progression by a service-connected disability. 38 C.F.R. § 3.310(a). On June 14, 2019, the Court issued the precedential decision in Ward v. Wilkie, 17-1204, holding that a “permanent worsening” of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability). The Veteran generally contends that he has a right knee condition secondary to his service-connected degenerative changes L1-S1 and service-connected right ankle osteoarthritis. See February 2017 VA Form 21-526EZ (the Veteran contended that his right knee condition was secondary to abnormal gait from his low back and ankle conditions); September 2020 Board hearing transcript (the Veteran described right knee pain with functional loss, but was unsure of whether it was a stand-alone condition or part-and-parcel of sciatica from his low back). The March 2017 VA knee and lower leg conditions examiner found right knee strain; during the examination, the Veteran reported pain with functional loss (limitations when walking, climbing stairs, and standing, with increased pain in cold weather). The examiner opined that the right knee condition was less likely than not “related to a specific exposure event experienced by the Veteran during service in Southwest Asia.” Not only did this examiner not provide any rationale to support that conclusion, but he also failed to analyze the theories of secondary service connection. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). During the September 2020 Board hearing, the Veteran described right knee pain with functional loss (pain interfering with walking such that he feels like he could collapse), but was unsure of whether it was a stand-alone condition or part-and-parcel of sciatica from his low back. Thus, because the Board has remanded the low back claim herein (discussed below), in part, to examine whether any neurological abnormalities are attributable to the low back, the Board finds that the right knee claim is inextricably intertwined with the low back claim and must be remanded concurrently. Harris, supra; Gurley, supra. Specifically, the AOJ must examine: (a) whether any neurological abnormalities are attributable to the low back; (b) if any neurological abnormalities are attributable to the low back, then whether there is any separate disability of the right knee causing pain with functional loss (or whether the right knee pain and functional loss is part-and-parcel of the neurological abnormalities); and (c) if there is any separate disability of the right knee causing pain with functional loss, then whether that disability is secondary to the service-connected low back condition and/or the service-connected right ankle osteoarthritis (including whether it is secondary to abnormal gait from his low back and ankle conditions). 3. Entitlement to an increased rating above 20 percent for degenerative changes L1-S1 When a disability of the joints is evaluated based on limitation of motion, examination findings must be consistent with the holdings in DeLuca, Mitchell, Correia, and Sharp. DeLuca v. Brown, 8 Vet. App. 202 (1995) (examiners must contemplate additional functional loss due to weakness, fatigability, incoordination, or painful motion); Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011) (pain may result in functional loss if it limits the ability to perform normal working movements, even if present only on repetitive motion or during a flare-up); Correia v. McDonald, 28 Vet. App. 158 (2016) (when possible, examiners must include range of motion testing on active and passive motion and in weight-bearing and nonweight-bearing conditions); Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017) (examiner must attempt to elicit information regarding the severity, frequency, duration, and functional loss during flare-ups before determining that additional range of motion loss due to flare-ups cannot be estimated). Additionally, VA must provide a new examination when the evidence indicates a possible worsening such that the most recent VA examination may not reflect the current severity of the disability. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). The Veteran was most recently afforded a pertinent VA examination in March 2017. Although the March 2017 VA back conditions examiner indicated “no” for if the Veteran reported flare-ups (see 2.b.), the Veteran’s description of functional impact (see 16.) indicated flare-ups (the Veteran reported that he misses about one day of work every three weeks because of increased low back pain in the mornings); the March 2017 examiner did not attempt to estimate additional range of motion loss due to flare-ups. Sharp, supra. Additionally, the March 2017 VA examiner found no radiculopathy or other neurological abnormalities. During the September 2020 Board hearing, the Veteran testified, in pertinent part, that: (a) he has had sciatica in the bilateral lower extremities due to his low back condition ever since the military; (b) the pins and needles sensation goes all the way down to the ankle, including the hips and knees; (c) he takes medication multiple times per day for pain; (d) he wakes up four to six times per night; (e) he cannot bend over and touch his toes; (f) he cannot bend backwards more than 15 degrees; (g) he cannot turn quickly to the right; and (h) he is basically stationary, “walking like a robot.” In an October 2020 Statement, the Veteran further discussed his flare-ups by reporting that: (a) he has an incapacitating episode with his back at least once per month (if he is at work, he must either go into a room and lay on a work table or he must go home); (b) he started experiencing tingling in his left leg in 2015; and (c) since 2017, that tingling has also included the right leg and has gotten worse in both legs, such that he now experiences significant pain in both legs through both hips and knees, to include numbness and tingling when both legs feel like they are going to sleep. Thus, because the March 2017 VA examination lacked sufficient information regarding range of motion loss during flare-ups and contended neurological abnormalities, further medical development is required. 4. Entitlement to an increased rating above 10 percent for right ankle osteoarthritis When a disability of the joints is evaluated based on limitation of motion, examination findings must be consistent with the holdings in DeLuca, Mitchell, Correia, and Sharp. DeLuca, supra; Mitchell, supra; Correia, supra; Sharp, supra. Additionally, VA must provide a new examination when the evidence indicates a possible worsening such that the most recent VA examination may not reflect the current severity of the disability. Snuffer, supra; Caffrey, supra. The Veteran was most recently afforded a pertinent VA examination in March 2017. Although the March 2017 VA ankle conditions examiner indicated “no” for if the Veteran reported flare-ups (see 2.b.), the Veteran’s description of his current symptoms (see 2.a.) indicated flare-ups (the Veteran reported that he has increased stiffness and pain in the mornings and that the pain increases with walking 40 to 50 yards, climbing 15 steps, standing for two minutes, and cold weather; he further reported that he sometimes has difficulty completing activities of daily living); the March 2017 examiner did not attempt to estimate additional range of motion loss due to flare-ups. Sharp, supra. Additionally, the March 2017 VA examiner found that the Veteran’s gait pattern was normal. During the September 2020 Board hearing, the Veteran testified, in pertinent part, that: (a) he has increased pain and a very bad/altered gait; (b) his ankle is always in pain; and (c) the arthritis has limited his movement severely (has a lean on the side where the plate was, cannot squat, and cannot sit or stand for long periods of time). Thus, because the March 2017 VA examination lacked sufficient information regarding range of motion loss during flare-ups and because the evidence indicates worsening, further medical development is required. The matters are REMANDED for the following action: 1. Conduct an examination or obtain an opinion as to the current severity of the degenerative changes L1-S1, including range of motion loss during flare-ups and contended neurological abnormalities. Due to COVID-19, the Board defers to the examiner’s discretion to determine whether in-person examination is required to render the requested information. 2. Conduct an examination or obtain an opinion as to the current severity of the right ankle osteoarthritis, including range of motion loss during flare-ups and gait abnormalities. Due to COVID-19, the Board defers to the examiner’s discretion to determine whether in-person examination is required to render the requested information. 3. Obtain an opinion as to the etiology of the right hip condition, including: (a) if any neurological abnormalities are attributable to the low back, then whether there is any separate disability of the right hip causing pain with functional loss (or whether the right hip pain and functional loss is part-and-parcel of the neurological abnormalities); and (b) if there is any separate disability of the right hip causing pain with functional loss, then whether that disability is secondary to the service-connected low back condition and/or the service-connected right ankle osteoarthritis (including whether it is secondary to abnormal gait from his low back and ankle conditions). Due to COVID-19, the Board defers to the examiner’s discretion to determine whether in-person examination is required to render the requested information. Obtain an opinion as to the etiology of the right knee condition, including: (a) if any neurological abnormalities are attributable to the low back, then whether there is any separate disability of the right knee causing pain with functional loss (or whether the right knee pain and functional loss is part-and-parcel of the neurological abnormalities); and (b) if there is any separate disability of the right knee causing pain with functional loss, then whether that disability is secondary to the service-connected low back condition and/or the service-connected right ankle osteoarthritis (including whether it is secondary to abnormal gait from his low back and ankle conditions). Due to COVID-19, the Board defers to the examiner’s discretion to determine whether in-person examination is required to render the requested information. (Continued on the next page)   4. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Daus, 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.