Citation Nr: 21022871 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 16-07 726 DATE: April 19, 2021 ORDER Entitlement to a rating of 20 percent, but no higher, is granted for degenerative joint disease of the right ankle prior to September 14, 2014. Entitlement to a rating in excess of 20 percent for degenerative joint disease of the right ankle from September 14, 2014 is denied. Entitlement to a compensable rating for a surgical scar of the right ankle is denied. FINDINGS OF FACT 1. Prior to September 14, 2014, the Veteran’s degenerative joint disease of the right ankle was manifested by marked limitation of motion. It was not manifested by ankylosis. 2. Effective September 14, 2014, the Veteran’s degenerative joint disease of the right ankle was not manifested by ankylosis in plantar flexion between 30 degrees and 40 degrees, or in dorsiflexion between 0 degrees and 10 degrees. 3. The Veteran’s surgical scar of the right ankle is not painful or unstable, and it does not involve and area or areas of at least 39 square cm. CONCLUSIONS OF LAW 1. Prior to September 24, 2014, the criteria for entitlement to a disability evaluation of 20 percent, but no higher, for degenerative joint disease of the right ankle have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5271. 2. From September 24, 2014, the criteria for entitlement to a disability evaluation in excess of 20 percent for degenerative joint disease of the right ankle have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, DC 5271. 3. The criteria for entitlement to a compensable disability rating for surgical scar of the right ankle have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.118, DC 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1989 to March 1999. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). This matter was remanded in September 2019 for further development. The Veteran declined a November 2019 VA examination of his right ankle and right ankle scar. In doing so, he indicated that he was going to cancel the claims. However, he never submitted written notice of his intent to withdraw his appeal. Consequently, the Board retains jurisdiction over these issues. Increased Rating Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 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 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. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Where, as in the case of the Veteran’s right ankle scar, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). Entitlement to a rating of 20 percent, but no higher, is granted for degenerative joint disease of the right ankle prior to September 14, 2014. In the September 2014 rating decision on appeal, the RO continued the Veteran’s 10 percent rating for his right ankle degenerative joint disease. The RO issued a February 2016 rating decision in which it increased the rating to 20 percent effective September 24, 2014. The Veteran’s increased rating claim was received in June 2014. Since the increase does not date all the way back to the date of the claim, there are multiple time periods to considered (prior to September 24, 2014; and after September 24, 2014). The Veteran’s service-connected degenerative joint disease of the right ankle has been rated by the RO under the provisions of Diagnostic Code (DC) 5271. Under this regulatory provision, a rating of 10 percent is warranted where limitation of motion is moderate. A 20 percent is warranted where limitation of motion is marked. Evaluations greater than 20 percent are warranted for ankylosis. See 38 C.F.R. § 4.71a, DCs 5270 and 5272. Normal ranges of ankle motions are 0 to 20 degrees for dorsiflexion and 0 to 45 degrees for plantar flexion. See 38 C.F.R. § 4.71, Plate II. The words “moderate” and “marked” are not defined in the rating schedule; rather, the Board must evaluate all the evidence to the end that its decisions are “equitable and just.” See 38 C.F.R. § 4.6. In the present case, it should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. On VA examination in May 2014, the Veteran reported constant pain that he rated as 10/10 in severity, as well as spontaneous flare-ups. He stated that he cannot walk, drive, or stand for long distances. On examination, range of motion of the right ankle was from 0 to 5 degrees of dorsiflexion, and from 0 to 35 degrees plantar flexion. There was no objective evidence of painful motion. However, the examiner later stated that there was functional loss and/or functional impairment due to pain on movement. The examiner also noted tenderness or pain on palpation. There was no additional loss of motion following repetitive use testing. Muscle strength testing was 4/5 (active movement against some resistance) during plantar flexion and dorsiflexion. Joint stability tests were normal. There was no ankylosis present on examination. The Veteran’s right ankle disability is manifested by reports of 10/10 pain, 0 to 5 degrees of dorsiflexion, and 0 to 35 degrees plantar flexion. The Board notes that normal range of ankle motion is 0 to 20 degrees for dorsiflexion. Consequently, 0 to 5 degrees of dorsiflexion is a 75 percent loss of dorsiflexion. Combined with the Veteran’s report of constant pain, the examiner’s finding that there was functional loss and/or functional impairment due to pain on movement, and objective evidence of loss of muscle strength, the Board finds that the findings are consistent with “marked” limitation of motion of the ankle as contemplated by a higher rating under DC 5271. Regarding a rating in excess of 20 percent, the Board notes that the 20 percent rating is the maximum allowable rating under Diagnostic Code 5271. Ankylosis is not shown as required for a higher rating under DC 5270 or 5272. Entitlement to a rating in excess of 20 percent for degenerative joint disease of the right ankle from September 14, 2014 is denied. As noted above, the 20 percent rating is the maximum allowable rating under Diagnostic Code 5271. In order to warrant a rating in excess of 20 percent, the Veteran’s right ankle disability would have to be manifested by ankylosis. Under DC 5270, a maximum 40 percent rating is warranted for 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. A 30 percent rating is warranted for ankylosis in plantar flexion between 30 degrees and 40 degrees, or in dorsiflexion between 0 degrees and 10 degrees. A 20 percent rating is warranted for ankylosis in plantar flexion less than 30 degrees. 38 C.F.R. § 4.71a, DC 5270. Under DC 5272, a maximum 20 percent rating is warranted for ankylosis of the subastragalar or tarsal joint in poor weight-bearing position. During the pendency of the Veteran’s appeal, the criteria for rating musculoskeletal disabilities were changed by an amendment to the rating schedule that became effective on February 7, 2021. 85 Fed. Reg. 76, 453 (November 30, 2020). Diagnostic Codes 5270 and 5272 were not affected by these recent revisions to the rating schedule. The Veteran submitted a VA Ankle Condition Disability Benefits Questionnaire (DBQ) dated September 2014, which was completed by a private podiatrist. The examiner stated that the Veteran achieved 45 degrees or greater of right ankle plantar flexion (with objective evidence of pain at 10 degrees), and 0 degrees of dorsiflexion (with objective evidence of pain at 0 degrees). Following repetitive use testing, the Veteran was only able to achieve 40 degrees of plantar flexion (dorsiflexion remained at 0 degrees). The examiner then stated that the Veteran had ankylosis of the ankle, subtalar and/or tarsal joint in plantar flexion between 30 and 40 degrees. He also had ankylosis in dorsiflexion between 0 and 10 degrees. He was also reported to have had ankylosis with abduction, adduction, inversion, or eversion deformity; and ankylosis in good weight-bearing position. The Board issued a September 2019 Remand in which it expressed its confusion regarding how an examination report could indicate that the Veteran has ankylosis, (which is a complete bony fixation of the right ankle), but also indicate a range of motion of the right ankle joint. It remanded for a new examination. The Veteran was scheduled for a new examination to take place in November 2019. However, the Veteran declined to undergo the examination. In order to warrant a rating in excess of 20 percent, the Veteran’s right ankle disability would have to be manifested by ankylosis of the ankle in plantar flexion, between 30 degrees and 40 degrees, or in dorsiflexion between 0 degrees and 10 degrees. These findings are expressed in the September 2014 DBQ. However, the findings are completely contradicted by the range of motion findings in the very same DBQ. Given the internal inconsistencies of the findings, the Board does not find the report to be probative. The Board sought clarification of the findings and remanded the appeal in September 2019 for such development. The Veteran declined to be examined. Pursuant to 38 C.F.R. § 3.655(b), when a claimant fails to report for an examination scheduled in conjunction with a claim for increase, the claim shall be denied. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim for a rating in excess of 20 percent for degenerative joint disease of the right ankle must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).   Entitlement to a compensable rating for a surgical scar of the right ankle is denied. Service connection for the right ankle scar was granted in the September 2014 rating decision on appeal. The RO assigned an initial noncompensable evaluation, effective June 6, 2014 pursuant to DC 7805. The Veteran seeks a compensable evaluation. Scars are evaluated under 38 C.F.R. § 4.118, Codes 7800 through 7805. Code 7800 applies to scars of the head, face, and neck (and therefore does not apply in this case). Code 7801 applies to scars, not of the head, face, or neck that are deep and nonlinear. A 10 percent rating is assigned for an area or areas of at least 6 square inches (39 square centimeters) but less than 12 square inches (77 square centimeters). Note 2 provides that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118. Superficial and nonlinear scars not of the head, face, or neck are rated under Code 7802, which provides for a 10 percent rating for scars with an area or areas of at least 144 square inches (929 square cm). Note 2 following defines a superficial scar as one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Code 7802 and note following. Under Code 7804 (for scars that are unstable or painful) a 10 percent rating is assigned for one or two qualifying scars, a 20 percent rating for three or four qualifying scars, and a 30 percent rating for five or more qualifying scars. Note 1 following defines an unstable scar as one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118. Under Code 7805 any disabling effect(s) [of scars] not considered in a rating under Codes 7800-04 are to be rated under an appropriate Code. 38 C.F.R. § 4.118. The Veteran underwent a VA examination in May 2014. The examiner noted that the Veteran had a ligament repair scar. It was not painful and/or unstable, and the total area of the scar did not exceed 39 square cm. The Veteran submitted a VA Ankle Condition DBQ dated September 2014, which was completed by a private podiatrist. The examiner stated that the Veteran had a right ankle scar. It was not painful and/or unstable, and the total area of the scar did not exceed 39 square cm. In an October 2014 Statement in Support of the Claim (VA Form 21-4138), the Veteran reported that his scar was both painful and unstable. In his February 2016 VA Form 9, the Veteran asserted that his scar is ‘constantly painful’ and he must take Hydrocodone ‘all day every day’ to help with the pain. He indicated that he could not run, walk, or drive more than a short distance due to the pain. He reported that he was issued a brace by his VA clinicians, yet still feels his ankle is giving way and that he is falling over. He noted that a cane is required for ambulation. Finally, the Veteran asserted that since his ankle surgery he has had severe pain and ‘unstability’ [sic] and that he his medical records reflect how many times he has been to the doctor for pain and ‘unstableness of the scar area’ of his ankle. The Board issued a September 2019 Remand so that the Veteran could undergo another VA examination. The Veteran was scheduled for a new examination to take place in November 2019. However, the Veteran declined to undergo the examination. The Board notes that neither the May 2014 VA examiner nor the September 2014 private podiatrist found that the Veteran’s right ankle surgical scar was painful and/or unstable, or that the total area of the scar exceeded 39 square cm. The Board has considered the Veteran’s contentions regarding the symptoms and severity of his scar. However, the VA and private medical records do not reflect complaints or clinical findings consistent with the Veteran’s report in his VA Form 9. Moreover, the VA examiners who physically examined him for the purposes of providing the Board with clinical findings to assign an appropriate disability rating, found no evidence of an unstable or painful scar. In so far as both examiners expressed findings that fail to meet the criteria for a compensable rating, the medical records are inconsistent with the Veteran’s description of his ankle scar manifestations, and the fact that the Veteran appears to be conflating scar symptoms with orthopedic/joint symptoms, the preponderance of the evidence weighs against the claim. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim for an initial or staged compensable rating for a surgical scar of the right ankle must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Prem, 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.