Citation Nr: 21009321 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 14-39 987 DATE: February 22, 2021 ORDER Entitlement to a rating in excess of 10 percent for left ankle fracture residuals with degenerative joint disease (DJD) is denied. Entitlement to an initial 10 percent rating for left ankle scar is granted. REMANDED Entitlement to a rating in excess of 10 percent for cervical spine degenerative arthritis is remanded. Entitlement to a rating in excess of 20 percent for left knee instability is remanded. Entitlement to a rating in excess of 10 percent for left knee traumatic arthritis is remanded. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran’s left ankle fracture residuals with DJD was productive of painful motion without evidence of moderate limitation. 2. Throughout the appeal period, the Veteran’s left ankle scar was shown to be tender. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for left ankle fracture residuals with DJD have not been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5010-5271 (2019). 2. The criteria for an initial 10 percent rating for left ankle scar have been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.7, 4.118, Diagnostic Code 7804 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from March 1977 to February 1997. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2012 rating decision issued by the VA Regional Office (RO). This case was previously before the Board in June 2020, at which time the issues currently on appeal were remanded for additional development. Increased Rating 1. Left Ankle Fracture Residuals with DJD The Veteran has contended that his left ankle fracture residuals with DJD (“left ankle disability”) is worse than that contemplated by the currently assigned rating. In April 2012, the Veteran was afforded a VA examination. He reported pain, stiffness, and flare-ups in cold weather. Upon physical evaluation, plantar flexion was to 40 degrees and dorsiflexion was normal without any objective evidence of pain. Following repeated use, he did not have any additional limitation in range of motion or loss/impairment of function. The examination was unremarkable for any other pertinent physical findings, complication, conditions, signs and/or symptoms. The Veteran underwent a VA examination in September 2018. He reported pain in his left ankle while walking. He denied any flare-ups or functional loss. Upon physical evaluation, plantar flexion and dorsiflexion were normal. There was objective evidence of pain with dorsiflexion, but it did not result in/cause functional loss. He had mild to moderate localized tenderness or pain on palpitation of the left ankle joint. There was evidence of pain with weight bearing and non-weight bearing. Following repeated use, he did not have any additional or loss of function or range of motion. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability after repetitive use over time or during a flare-up. He had reduced muscle strength, but no atrophy. There was objective evidence of crepitus. He regularly used a brace. The examination was unremarkable for any other pertinent physical findings, complication, conditions, signs and/or symptoms. In September 2020, the Veteran was provided an additional VA examination. He reported left ankle pain. Upon physical evaluation, he demonstrated plantar flexion to 35 degrees and dorsiflexion was normal. There was objective evidence of pain, but it did not result in/cause functional loss. He had localized tenderness or pain on palpitation of the left ankle joint. There was evidence of pain with weight bearing and non-weight bearing. Following repeated use, he did not have any additional loss of function or limitation of motion. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability after repetitive use over time or during a flare-up. His muscle strength was within normal limits and there was no atrophy. He occasionally used a cane. The examination was unremarkable for any other pertinent physical findings, complication, conditions, signs, and/or symptoms. A review of medical records showed that the Veteran has received additional treatment for a left ankle disability. However, there is no indication from the record that his symptoms are manifestly different than those reported above. Given the aforementioned evidence, the Board finds a higher rating is not warranted throughout the appeal period. In this regard, the Veteran demonstrated limitation of motion that was no more than painful. The Board acknowledges the Veteran’s lay assertion that his DJD should be separately rated. However, DJD of the left ankle would not yield a separate evaluation since the rating schedule specifically provides that arthritis should be rated based on limitation motion for the specific joint involved. Here, separate evaluations under Diagnostic Codes 5271 and 5003 or 5010 would constitute impermissible pyramiding, as the Veteran’s left ankle is currently rated at 10 percent based on limitation of motion. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Consideration has been given to assigning staged ratings. However, at no time during the appeal period has the disability warranted a higher schedular rating than that assigned. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Accordingly, the Board finds that the preponderance of the evidence is against the claim for a higher rating in excess of 10 percent. The Board finds that there is no doubt of material fact to be resolved in the Veteran’s favor. 38 U.S.C. § 5107(b) (2019). 2. Left Ankle Scar The Veteran has asserted that his left ankle scar is worse than that contemplated by the currently assigned rating. The Veteran was afforded VA examinations for his left ankle disability in May 2008, April 2012, and September 2018. The May 2008 examiner observed that the Veteran’s scar was tender on palpitation. Later VA examinations showed that the Veteran’s scar was well healed. There was no evidence that his scar was painful, unstable, or covered an area equal to or greater than 39 square centimeters. In September 2020, the Veteran was provided a VA scar examination. He had one scar that covered 8.5 x 0.5 square centimeters (4.25 sq. cm.) of the lateral ankle region. However, he did not report any scar-related symptoms. There was no evidence that his scar was painful, tender, unstable or had any underlying soft tissue damage. A review of VA treatment records showed that the Veteran had an “old hyperpigmented scar dorsum left foot (friction from a boot)” in May 2012. However, there is no indication from the record that his symptoms are manifestly different than those reported above. Nonetheless, the Veteran reported that his left ankle scar was tender. The Board finds that the Veteran is competent to establish the presence of observable symptomatology. Layno v. Brown, 6 Vet. App. 465 (1994). Further, the Board finds his statement credible. Resolving reasonable doubt in the Veteran’s favor, the Board finds that he is entitled to a higher rating throughout the appeal period. In this regard, the Veteran had a single, tender scar that did not result in any disabling effects. 38 C.F.R. § 4.118, Diagnostic Codes 7804 and 7805. Accordingly, the Board finds that an initial 10 percent rating for left ankle scar is warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). REASONS FOR REMAND 1. Increased Rating – Cervical Spine Degenerative Arthritis The Veteran was last afforded a VA examination for his cervical spine degenerative arthritis in September 2020. However, the Board finds that the development conducted does not adequately comply with the June 2020 Board remand directives instructing the VA examiner to address any radicular symptoms. Specifically, the Veteran reportedly complained of episodes of numbness and tingling throughout his left and right arms at his April 2012 VA examination. Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, the Veteran should be provided a new VA examination. 2. Increased Rating – Left Knee Traumatic Arthritis and Instability In September 2020, the Veteran was provided a VA examination for his left knee traumatic arthritis and instability. The examiner rendered a new diagnosis of left knee sprain with residual pain. He found no evidence of left knee instability. Additionally, he indicated that no imaging studies showing degenerative or traumatic arthritis had been performed. The Board finds that the September 2020 VA examiners findings conflict with the existing lay and medical evidence of record. Specifically, the Veteran has been diagnosed by imaging study with traumatic arthritis of the left knee. He described giving way of his left knee at April 2012 and August 2017 VA examinations. Prior joint stability testing revealed left knee instability, to specifically include his August 2017 VA examination. Furthermore, he reported that he had near continuous cracking and popping with movement and his left knee joint was “very loose and movable.” Therefore, an additional VA examination is warranted to resolve the conflicting lay and medical evidence. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for an appropriate VA examination to determine the current level of severity of all impairment resulting from his service-connected cervical spine degenerative arthritis. The claims file must be made available to and reviewed by the examiner. Any indicated studies must be performed. The examiner should provide all information required for rating purposes, including any upper extremity radicular symptoms. 3. Then, schedule the Veteran for an appropriate VA examination to determine the current level of severity of all impairment resulting from his service-connected left knee traumatic arthritis and instability. The claims file must be made available to and reviewed by the examiner. Any indicated studies must be performed. The examiner should provide all information required for rating purposes. Additionally, the examiner must address the Veteran’s left knee symptoms of giving way, near continuous cracking and popping with movement, and “very loose and movable.” 4. Confirm that VA examination reports and all opinions provided comport with this remand and undertake any other development found to be warranted. 5. Then, readjudicate the remaining issues on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Ware, 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.