Citation Nr: 21010012 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 20-08 515 DATE: February 23, 2021 ORDER An initial disability rating of 20 percent, but no higher, for the service-connected left ankle ligament tear with osteochondral defect post-surgical repair (hereinafter referred to as left ankle disability), is granted. A separate 10 percent rating, but no higher, for the painful service-connected left ankle surgical scar, is granted. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran’s left ankle disability manifested in an overall disability picture more nearly approximating marked limitation of motion due to pain, particularly when considering additional motion loss during flare ups; but without evidence of ankylosis. 2. For the entire period on appeal, the Veteran’s left ankle surgical repair resulted in a painful scar. CONCLUSIONS OF LAW 1. For the entire period on appeal, the criteria for the assignment of a 20 percent disability rating, but no higher, for the service-connected left ankle disability have been more nearly approximated. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5010-5271. 2. For the entire period on appeal, the criteria for the assignment of a separate initial 10 percent rating, but no higher, for the service-connected left ankle surgical scar have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.118, DC 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from January 2013 to January 2018. This matter is before the Board of Veterans’ Appeals (the Board) on appeal from the April 2018 Department of Veterans Affairs (VA) Regional Office (RO). The rating decision, inter alia, granted service connection for left ankle ligament tear with osteochondral defect post-surgical repair (also claimed as left ankle condition/pain, and hereinafter referred to as left ankle disability) with an initial evaluation of 10 percent effective January 22, 2018. The Veteran’s Notice of Disagreement (NOD) was received in March 2019. The Statement of the Case was issued in December 2019 and the Veteran’s VA Form 9, substantive appeal to the Board was received in February 2020. In February 2021, the Veteran appeared at a Board hearing before the undersigned Veterans’ Law Judge (VLJ) sitting in Washington, DC. The transcript from the hearing has not yet been associated with the file, as the appeal is being processed under the Board’s “One Touch” program.” Entitlement to an initial disability rating in excess of 10 percent for the service-connected left ankle disability. The Veteran seeks an initial disability rating in excess of 10 percent for the service-connected left ankle disability. Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the evidence since the grant of service connection and consideration of the appropriateness of a “staged rating” (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45 but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). The Veteran’s left ankle disability is rated as 10 percent disabling pursuant to DC 5010-5271. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Under DC 5010 traumatic arthritis is to be rated as degenerative arthritis (DC 5003). Arthritis of a major joint is to be rated under the criteria for limitation of motion of the affected joint. 38 C.F.R. § 4.71a, DC 5003. For the purpose of rating disabilities due to arthritis, the ankle is considered a major joint. 38 C.F.R. § 4.45. Where the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application. In the absence of limitation of motion, a 10 percent rating will be assigned with x-ray evidence of involvement of 2 or more major joints. Again, the Veteran’s left ankle is already in receipt of a 10 percent rating. The question is whether a rating in excess of 10 percent is warranted under the criteria related to limitation of motion. Under DC 5271, the currently assigned 10 percent rating is warranted with moderate limited motion of the ankle. A maximum 20 percent rating is warranted for marked limited motion of the ankle. 38 C.F.R. § 4.71a, DC 5271. Normal range of motion of the ankle is from 0 to 20 degrees of dorsiflexion and 0 to 45 degrees of plantar flexion. 38 C.F.R. § 4.71a, Plate II. Words such as “moderate” and “marked” are not defined in the VA Schedule of Rating Disabilities. Use of terminology such as severe by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. DC 5270 and 5272 apply to disabilities involving diagnosis of ankylosis. DC 5273 applies to calcis or astragalus. DC 5274 applies to astragalectomy. As these conditions are not shown or alleged, DC 5270, 5272, 5273, and 5274 do not apply in this matter. Moreover, DC 5262 applies to impairment of the tibia and fibular based on instability, which has not been shown in this case. As such, DC 5262 is likewise not for application. In March 2018, the Veteran underwent a VA examination for his claim. He was diagnosed with chronic left ankle ligamental tear with osteochondral defect status post-surgery. The Veteran reported chronic left ankle pain, which is increased with standing and walking. The Veteran’s left ankle dorsiflexion was from 0 to 10 degrees and his plantar flexion was from 0 to 30 degrees. Pain causing functional loss was noted on examination for both dorsiflexion and plantar flexion. There was evidence of pain with weight bearing and objective evidence of lateral tenderness. There was no objective evidence of crepitus. There was no additional loss of function or range of motion after three repetitions. With respect to repetitive use over time, the VA examiner concluded that the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing the functional loss. The VA examiner noted that the examination was not taking place during a flare up, and that it would be speculative to determine the degrees of additional range of motion loss due to pain, weakness, fatigability, or incoordination. Less movement due to pain and adhesions were noted to be additional contributing factors. Muscle strength testing was normal. There was no evidence of ankylosis, no joint instability or suspected dislocation. There were no shin splints, stress fractures, achilles tendonitis, achilles tendon rapture, malunion of calcaneus or talus, or talectomy noted. The Veteran was not noted to use any assistive devices. Imaging studies were referenced and there was no evidence of degenerative or traumatic arthritis but there was evidence of joint indicated degenerative joint disease of the left ankle. The VA examiner noted that the Veteran did not have a scar. Under functional impact, it was noted that the Veteran could not stand or walk for prolonged periods of time. There was evidence of pain on non-weight bearing use and no evidence of the opposing joint damage. A January 2020 letter from the Veteran’s private provider, Dr. R.L. indicates that the Veteran was diagnosed with degenerative arthritis of the left ankle with gastrosoleus muscle contracture and pain. Dr. R.L. noted and enclosed a January 2020 MRI indicating chondromalacia with degenerative arthritis of the tibial plafond which was surgically treated in October 2016. In September 2020, the Veteran underwent a VA examination for his claim. He was diagnosed with a left ankle ligament tear with osteochondral defect post surgical repair. The Veteran reported recurrent ankle pain and swelling and indicated that his baseline pain is 3 out of 10 and his flare ups pain is 8 out of 10. The Veteran also reported difficulty with running, jumping, and climbing. The Veteran’s dorsiflexion was from 0 to 15 degrees and his plantar flexion was from 0 to 40 degrees. The VA examiner concluded that range of motion did not contribute to functional loss. Pain was noted on examination for both dorsiflexion and plantar flexion, but was not noted to cause functional loss. There was mild localized tenderness and no evidence of pain with weight bearing or crepitus. There was no additional loss of function or range of motion after three repetitions. The VA examiner noted that pain and fatigue significantly limit functional ability with repeated use over a period of time and noted the range of motion to be 0 to 15 degrees for dorsiflexion and plantar flexion to be 0 to 30 degrees. The VA examiner also noted that the examination was not conducted during a flare up, but that the results were consistent with the Veteran’s statements describing functional loss during flare up. The VA examiner noted that pain significantly limited functional ability during flare ups, and that the Veteran’s dorsiflexion was 0 to 10 degrees and plantar flexion was 0 to 25 degrees during a flare up. Muscle strength testing was normal and there was no muscle atrophy. There was no ankylosis and no joint instability. There were no shin splints, stress fractures, achilles tendonitis, achilles tendon rupture, malunion of calcaneus or talus, or talectomy noted. There were no noted scars. The Veteran was not noted to use any assistive devices. Under functional impact, the Veteran was noted to have difficulty with running, climbing, and jumping. There was objective evidence of pain on non-weight bearing, and the Veteran was noted to have the same range of motion results as during active range of motion testing. Based on the evidence of record, an assignment of an initial disability rating of 20 percent is warranted for the service-connected left ankle disability throughout the period on appeal. The most probative evidence of record, including the March 2018 and the September 2020 VA examination reports, indicate that the Veteran’s left ankle disability manifests in pain, limited range of motion, and flare ups which cause severe pain, swelling, and additional loss of range of motion. There is objective evidence of limited range of motion, localized tenderness, pain on weight bearing, and additional loss of function during flare ups. The March 2018 and September 2020 VA examination reports indicate that the Veteran’s left ankle disability impacts his ability to run, climb, and jump. Although the Veteran was not examined during a flare up, he is competent to report observable symptoms such as pain, swelling, and loss of range of motion, and there is no reason to doubt his credibility in this regard. Notably, the Veteran’s dorsiflexion was limited to 10 degrees at the time of the March 2018 examination, and the examiner specifically indicated that the examination was not being conducted during a flare-up. Thus, even without considering flare-ups, the Veteran’s dorsiflexion was limited to half of what is considered normal. Thus, given the Veteran’s credible reports of additional pain and swelling during flare-ups, the Veteran’s overall disability picture more nearly approximates marked limitation of motion of the left ankle. In addition, the September 2020 VA examination report estimated that the Veteran would experience significant limitation of dorsiflexion and plantar flexion during a flare-up. When the limitation of dorsi-flexion and limitation of plantar flexion are considered together, the overall disability picture more nearly approximates marked limitation of motion of the left ankle. Accordingly, the criteria for the assignment of a 20 percent rating for the left ankle disability have been more nearly approximated throughout the entire appeal period. The assignment of a 20 percent disability rating for the Veteran’s right ankle disability is the maximum disability rating allowed under Diagnostic Code 5271 for limited motion of the right ankle. Considering that the other diagnostic codes for the ankle do not apply, and/or do not afford a rating higher than 20 percent, the criteria for a disability rating in excess of 20 percent for the right ankle disability are not met. In this regard, the arthritis code (5003) does not afford the Veteran a rating in excess of 10 percent based on painful motion due to arthritis. Staged ratings are not warranted for the Veteran’s right ankle disability. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); see also Fenderson, 12 Vet. App. at 126. Since the Veteran filed his increased rating claim, the evidence of record does not show factually distinct periods where his service-connected right ankle disability symptoms would warrant different disability ratings. Therefore, an initial disability rating of 20 percent, but no higher, for the service-connected right ankle disability is warranted for the entirety of the appellate period. Additionally, at the February 2021 Board hearing, the Veteran testified that he has a residual scar associated with surgical repair of his left ankle disability. He also testified that the scar is painful. There are observable symptoms capable of lay observation, and there is no reason to doubt the Veteran’s credibility in this regard, particularly given that it is reasonable to infer that a surgical procedure would no doubt result in at least some type of scarring. Accordingly, a separate rating for the surgical scar is warranted. 38 C.F.R. § 4.25 (b); Esteban v. Brown, 6 Vet. App. 259 (1994) (where the condition results in separate and distinct manifestations, they should each be recognized and combined under separate ratings); but see 38 C.F.R. § 4.14 (evaluation of the same disability or manifestation under various diagnoses is to be avoided). In this regard, the March 2018 and September 2020 VA examination reports did not note that the Veteran had a surgical scar. However, as noted above, the Veteran’s reports are consistent with his medical history. The Veteran underwent surgical repair of the left ankle, and it flows that the surgery resulted in a scar. The Veteran’s scar is most appropriately rated under DC 7804, which addresses unstable and painful scars. Under 38 C.F.R. § 4.118, DC 7804, a single unstable or painful scar warrants a 10 percent rating. A 20 percent rating is only warranted if there are three or more scars that are unstable or painful. After reviewing the evidence, a separate initial 10 percent rating, but no higher, is warranted for the Veteran’s left ankle surgical scar. As the Veteran’s scar is painful, he is entitled to a 10 percent rating. A higher rating is not warranted because the Veteran reported having only one scar. A rating under DC 7800 is not warranted as the Veteran’s scar is not on his head, face or neck. A rating under DC 7801 or DC 7802 is not warranted as there is no evidence that the Veteran’s scar covers an area of 6 inches or greater. Accordingly, as the Veteran’s left ankle surgical scar is painful, a separate 10 percent rating is warranted under 38 C.F.R. § 4.118, DC 7804. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kuksova, Kseniya 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.