Citation Nr: 21024790 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 18-54 406 DATE: April 26, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for service-connected right ankle calcaneal spur with degenerative arthritis, prior to December 23, 2020, is denied. Entitlement to a 30 percent disability rating, but no higher, for service-connected right ankle calcaneal spur with degenerative arthritis, effective from December 23, 2020, is granted. Entitlement to an initial compensable evaluation for a right ankle scar is denied. Entitlement to an initial disability rating higher than 10 percent for a painful right ankle scar pursuant to Diagnostic Code 7804 is denied. FINDINGS OF FACT 1. From April 6, 2016 (one year prior to the date of filing of a claim for increased rating) to December 23, 2020, the Veteran’s right ankle disability was manifested by pain and limitation of motion. 2. Since December 23, 2020, the Veteran’s right ankle symptomatology has ankylosis in dorsiflexion at 0 degrees. 3. Prior to December 23, 2020, the Veteran’s right ankle scar measures 5 cm. by 0.25 cm., is stable, with no pain upon examination or resulting limitation of function. 4. From December 23, 2020, the medical evidence shows that the Veteran’s right ankle scar is painful, measures 5 cm. by 1 cm.; the scar is stable and does not result in limitation of function. CONCLUSIONS OF LAW 1. Prior to December 23, 2020, the criteria for a rating in excess of 20 percent for right ankle calcaneal spur with degenerative arthritis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5271. 2. From December 23, 2020, the criteria for a 30 percent for a right ankle calcaneal spur with degenerative arthritis, but no higher, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5270. 3. The criteria for a compensable initial rating for a right ankle scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.118, Diagnostic Codes 7800-7805. 4. The criteria for a separate rating in excess of 10 percent for a painful right ankle scar are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.118, Diagnostic Code 7800-7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1966 to December 1967. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, which denied a rating in excess of 20 percent for service-connected right ankle disability and granted service connection for residual scar of the right ankle; a noncompensable (zero percent) rating was assigned from April 6, 2017. The Veteran disagreed with the rating decision and this appeal follows. In an April 2020 Board decision, the claims were remanded for further evidentiary development. As will be described below, review of the record reflects substantial compliance with the Board's Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In a December 2020 rating decision, the RO granted a separate 10 percent rating for painful right ankle scar pursuant to Diagnostic Code 7804, effective from December 23, 2020. The Veteran has not expressed satisfaction with the ratings assigned for his service-connected right ankle scar; as such, these matters remain in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (when a veteran is not granted the maximum benefit allowable under the VA Schedule for Rating Disabilities, the pending appeal as to that issue is not abrogated). A supplemental statement of the case (SSOC) was issued in December 2020. The Veteran’s VA claims file has been returned to the Board for further appellate proceedings. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as “staged” ratings.” Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to an evaluation in excess of 20 percent for a right ankle calcaneal spur with degenerative arthritis. In evaluating any disability based on limitation of motion, VA must consider the actual degree of functional impairment imposed by pain, incoordination, weakness, fatigue, and lack of endurance with repetitive motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). While 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 (2011). Additionally, flare-ups must be factored into an examiner’s assessment of functional loss. Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a, including Diagnostic Code 5271, were amended effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020). Prior to February 7, 2021, the Board will consider the old version of the diagnostic code only; however, for the period beginning February 7, 2021 the Board will consider both the old and amended version of the diagnostic code and rate based on whichever is most favorable to the Veteran. Prior to the regulatory change, Diagnostic Code 5271 assigned a 20 percent rating for marked limitation of motion of the ankle and a 10 percent rating for moderate limitation of motion of the ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2020). The regulatory change amended the diagnostic code to define marked limitation of motion as less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion and to define moderate limitation of motion as less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion. 85 Fed. Reg. 76453 (Nov. 30, 2020). The normal range of motion of the ankle is dorsiflexion from 0 to 20 degrees and plantar flexion from 0 to 45 degrees. 38 C.F.R. § 4.71, Plate II. Notably, in every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. However, a 10 percent rating can be assigned for the ankle joint if there is painful motion without compensable limitation of motion. 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5003; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that the applicability of 38 C.F.R. § 4.59 is not limited to arthritis claims). The Board notes that new regulations do not affect this claim because the Veteran was already in receipt of the maximum 20 percent rating under Diagnostic Code 5271 during the period on appeal and is awarded a higher rating under Diagnostic Code 5270 effective prior to the February 7, 2021 date applicable for new regulations. The Veteran’s right ankle disability is assigned a 20 percent rating under Diagnostic Code 5271 for marked limitation of the ankle. This is the highest available rating provided under Diagnostic Code 5271. VA treatment records reflect complaints of ankle pain. The Veteran was provided a VA examination in May 2017. The examiner documented that the Veteran did not report flare-ups of the ankle. The Veteran did provide a description of functional impairment in his own words which included the limited ability to walk, stand, and climb stairs repetitively. On range of motion testing, dorsiflexion was noted to 20 degrees and plantar flexion was limited to 30 degrees. Pain was noted on examination but did not result in functional loss. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of function. The Veteran’s right ankle did not have any ankylosis. There was no right ankle instability or dislocation suspected. The Veteran was provided a VA examination in December 2020. The examiner documented the Veteran’s report in which he rated the pain a 6 out of 10 and had pain all day and night with flare-ups. The Veteran reported flare-ups that occurred five times a week with a severity of pain a 10 out of 10. The Veteran reported having functional loss of the joint extremity and described that during flare-ups, he is unable to sleep for more than one or two hours. The Veteran also reported that he cannot stand for more than 20 minutes before resting the right ankle or walk more than 100 yards. On range of motion testing, dorsiflexion was limited to zero degrees and plantar flexion was limited to 20 degrees. Pain was noted on examination and caused functional loss in both dorsiflexion and plantar flexion. There was also pain with palpation. The examiner noted that the examination was not being conducted during a flare-up but estimated that during a flare-up, the Veteran’s right ankle range of motion for dorsiflexion was limited to zero degrees and for plantar flexion was limited to 10 degrees. The Veteran did not have muscle atrophy. The examiner noted that the Veteran had right ankle ankylosis in dorsiflexion at zero degrees. The Veteran did not have any shin splints, stress fractures, achilles tendonitis, achilles tendon rupture, malunion of calcaneus or talus, or talectomy. The examiner noted that the Veteran regularly used a cane or walker as a normal mode of locomotion. First, concerning a higher rating under Diagnostic Code 5271, such is not possible as the Veteran is assigned the highest available rating during the entire period on appeal under Diagnostic Code 5271. Concerning other diagnostic codes pertaining to the right ankle, higher ratings are available under Diagnostic Code 5272 for ankylosis of the subastragalar or tarsal joint in good or poor weight-bearing positions, Diagnostic Code 5273 for malunion of the os calcis or astragalus, and Diagnostic Code 5274 for astragalectomy. However, the medical evidence does not show that ankylosis of the subastragalar or tarsal joint, malunion of the os calcis or astragalus, or astragalectomy. Accordingly, Diagnostic Codes 5272, 5273, and 5274 are not applicable. With respect to Diagnostic Code 5270, the Board finds that the evidence supports a higher rating of 30 percent, effective December 23, 2020, the date of the December 2020 VA examination in which ankylosis of the right ankle was first documented. Under Diagnostic Code 5270, a 30 percent rating is warranted for ankylosis in plantar flexion, between 30 and 40 degrees, or in dorsiflexion, between 0 and 10 degrees. A 40 percent rating is warranted for ankylosis in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion, or eversion deformity. The December 23, 2020 VA examiner reported that the Veteran has ankylosis of the right foot with dorsiflexion to 0 degrees on physical examination. Thus, the Veteran’s symptomatology of ankylosis in dorsiflexion to 0 degrees warrants a higher 30 percent rating under Diagnostic Code 5270 from December 23, 2020. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). However, a higher rating under Diagnostic Code 5270 is not warranted as there is no evidence to show ankylosis in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion, or eversion deformity. The Board recognizes the Veteran’s request for a higher rating and his statements addressing the severity of his right ankle disability. The Board has considered his statements along with his VA examination reports and medical findings of record. Despite his statements asserting that his disability is more severe than his rating reflects, including his complaints of extreme pain, the findings do not support a rating in excess of a 20 percent rating prior to December 23, 2020 and 30 percent from December 23, 2020. There is no higher rating available for limited range of motion of the right ankle and there is no evidence of ankylosis in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion, or eversion deformity. Accordingly, ratings in excess of 20 percent prior to December 23, 2020 and 30 percent thereafter are not warranted. Thus, a higher rating of 30 percent is granted under Diagnostic Code 5270 effective December 23, 2020 and because the Veteran is already in receipt of the maximum rating available under Diagnostic Code 5271 and the medical evidence does not support a higher rating under other pertinent Diagnostic Codes prior to December 23, 2020, a rating higher than 20 percent prior to December 23, 2020 for right ankle calcaneal spur with degenerative arthritis is denied. 2. Entitlement to an initial compensable evaluation for a right ankle scar. 3. Entitlement to a separate rating higher than 10 percent for evaluation for a painful right ankle scar. As indicated above, the May 2017 rating decision granted service connection for residual scar of the right ankle and assigned a noncompensable (zero percent) rating from April 6, 2017. The Veteran disagreed with the assigned initial rating and this appeal follows. In a December 2020 rating decision, the RO granted a separate 10 percent rating for painful right ankle scar from December 23, 2020. Scars are evaluated pursuant to 38 C.F.R. § 4.118, DCs 7800, 7801, 7802, 7804, and 7805. Effective August 13, 2018, the rating criteria for skin disabilities were revised. See 73 Fed. Reg. 32,592 (July 13, 2018). As this appeal was pending on August 13, 2018, the revised criteria are applicable, but only for the period beginning August 13, 2018. The Board does note, however, the relevant diagnostic codes in this case were not significantly changed. Under the revised criteria: DC 7800 was not revised. DC 7801 provides ratings for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage. The criteria for a 10 percent rating were not revised. DC 7802 provides ratings for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage. The criteria for a 10 percent rating were not revised. DC 7804 was not revised. DC 7800 is not for application, as it pertains only to scars of the head, face, or neck. Under DC 7801, a 10 percent disability evaluation is assigned when a scar, of an area other than the head, face, and neck, is deep or causes limited motion, and involves an area or areas of at least 6 square (sq.) inches (39 square cm.), but less 12 sq. inches (77 sq. cm.). A 20 percent disability evaluation is warranted for when it involves an area or areas of at least 12 sq. inches (77 sq. cm.), but is less than 72 sq. inches (465 sq. cm.). A 30 percent disability evaluation is warranted when it involves an area or areas at least 72 sq. inches (465 sq. cm.), but less than 144 sq. inches (929 sq. cm.). A 40 percent evaluation is warranted when it involves an area or areas is at least 144 sq. inches (929 sq. cm.), or greater. See 38 C.F.R. § 4.118, DC 7801. Note (1) indicates that a deep scar is one associated with underlying soft tissue damage. DC 7802 pertains to burn scar(s) due to other causes, not of the head, face, or neck that are superficial and nonlinear. Area or areas of 144 square inches or greater are rated as 10 percent disabling. DC 7804 pertains to unstable or painful scars. One or two scars that are unstable or painful are rated at 10 percent disabling. Three or four scars that are unstable or painful are rated as 20 percent disabling. Five or more scars that are unstable or painful are rated as 30 percent disabling. DC 7805 provides that scars (including linear scars) not otherwise rated under DCs 7800-7804 are to be rated based on any disabling effects not provided for by those codes. In addition, the effects of scars otherwise rated under DCs 7800-7804 are to be considered. 38 C.F.R. § 4.118, DC 7805. Therefore, the Board has considered all applicable DCs, as discussed further herein. The VA treatment record during the period on appeal were silent with regard to the right ankle scar. During the May 2017 VA examination for the Veteran’s right ankle, the examiner noted that the Veteran had a right ankle scar. The examiner also indicated that there was no evidence that the scar was painful, unstable, has a total area equal to or greater than 39 square cm or was located on the head, face, or neck. The examiner measured the scar at 5 cm length and .25 cm width. The examiner did not document any limitation of function due to the right ankle scar. In a December 2020 VA examination, the examiner found that the Veteran’s right ankle scar was painful. The examiner also noted that the Veteran’s right ankle scar was not due to a burn. The right ankle scar was measured at 5 cm length and 1 cm width. The examiner also indicated that the Veteran’s right ankle scar had underlying soft tissue damage. The examiner noted that the Veteran’s scar was not deep. The examiner indicated that there was no limitation of function due to the right ankle scar. Critically, prior to the December 23, 2020 VA examination, there is no documentation that the Veteran’s right ankle scar was painful. In fact, the May 2017 VA examiner indicated that the right ankle scar was not painful. The painful right ankle scar was documented at the time of the December 2020 VA examination. As such, a compensable rating is not warranted for painful scar under DC 7804 prior to December 23, 2020. In addition, for the period dating from December 23, 2020, a higher 20 percent rating is not warranted under DC 7804 as the Veteran does not have three or four unstable or painful scars. Throughout the appeal period, there is no documentation that the right ankle scar was unstable, deep, or resulted in limitation of function at any time. Moreover, although the December 2020 VA examiner described the right ankle scar as resulting in soft tissue damage, the area of the scar has been consistently documented to be less than 39 sq. cm. For the reasons set forth above, the Veteran’s claim for an initial rating in excess of 10 percent for a painful scar under DC 7804 from December 23, 2020 and the claim for a compensable rating under DC 7805 for the same scar are denied. As the preponderance of the evidence is against the Veteran’s claims, the benefit of the doubt doctrine does not apply. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Katherine Kiemle Buckley Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Hammad Rasul, 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.