Citation Nr: 21026734 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 16-30 091 DATE: May 3, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for a right ankle scar, a status post right ankle ligament surgery with right foot tendonitis scar of the right ankle, is denied. REMANDED Entitlement to an increased rating in excess of 10 percent from July 1, 2013 to January 15, 2018, and in excess of 20 percent thereafter for a right foot disability, status post right ankle ligament surgery with right foot tendonitis, is remanded. An initial rating in excess of 10 percent for right lower extremity neuropathy is remanded. FINDING OF FACT The Veteran's right ankle scar has been characterized as one stable, linear scar measuring 10 centimeters long. The right ankle scar has been manifested by pain. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for a status post right ankle ligament surgery with right foot tendonitis scar of the right ankle have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.40-4.45, 4.59, 4.118, Diagnostic Code 7804. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty in the United States Army from June 2005 to June 2009. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In a May 2016 rating decision, during the pendency of the appeal, the RO granted a 10 percent evaluation for the Veteran's right ankle scar. Additionally, in an April 2018 rating decision, the RO granted a 20 percent evaluation for the Veteran's right ankle disability with right foot tendonitis, effective January 15, 2018. The RO found the right ankle and right foot disabilities required a combined rating as the symptoms of both are overlapping. In October 2018, the claims were remanded for further development. They have since been returned to the Board for appellate review. The Board notes that, on remand, the RO was instructed to contact the Veteran regarding an authorization to obtain outstanding treatment records. A July 2019 development correspondence shows the RO contacted the Veteran regarding authorization to obtain records from her private providers, including Dr. T.S. However, the Veteran did not respond to that request and has not done so to this date. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where a veteran appeals the initial rating assigned for a disability when a claim for service connection for that disability has been granted, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an [initial] rating on appeal was erroneous..." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id.; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran's right ankle scar, status post right ankle ligament surgery with right foot tendonitis scar of the right ankle, is currently assigned a 10 percent evaluation, pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7804. Under Diagnostic Code 7804, a 10 percent rating is warranted for superficial scars that are painful on examination. A 20 percent rating is assigned for three or four scars that are unstable or painful. A 30 percent rating is assigned for five or more scars that are unstable or painful. Note (2) under Diagnostic Code 7804 provides that provides that a scar or scars that is both unstable and painful on examination may be assigned an additional 10 percent rating. See 38 C.F.R. § 4.118, Diagnostic Code 7804. After a review of all the evidence, the Board finds that the weight of the evidence demonstrates that the criteria for an increased disability rating in excess of 10 percent under Diagnostic Code 7804 have not been met or more nearly approximated. Findings from a March 2018 VA examination reveal that the Veteran's disability involves only one scar measuring 10 centimeters that has been found to be painful and tender to palpation, but not unstable. Therefore, a 20 percent rating is not warranted. 38 C.F.R. § 4.118, Diagnostic Code 7804, Note (2). The Board further finds that the weight of the evidence is against a finding that any other Diagnostic Codes for rating scars are applicable or would result in a higher rating. See 38 C.F.R. § 4.118. Diagnostic Code 7800 pertains to scars of the head, face, or neck. As the scar is located on the Veteran's ankle, Diagnostic Code 7800 is not for application in this case. Diagnostic Code 7801 pertains to burn scars or scars due to other causes not of the head, face, or neck that are deep and nonlinear. A 10 percent evaluation is contemplated for area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.). Note 1 indicates that a deep scar is one associated with underlying soft tissue damage. The Veteran's right ankle scar is linear; therefore, this diagnostic code is not for application. See March 2018 VA examination report. Diagnostic Code 7802 provides a 10 percent evaluation for scars other than of the head, face, or neck that are superficial and nonlinear and involve an area or areas of 144 square inches (929 sq. cm.) or greater. Note 1 provides that a superficial scar is one not associated with underlying soft tissue damage. The Veteran's scar is linear; therefore, this diagnostic code is not for application. Under Diagnostic Code 7805, scars, other (including linear scars) and other effects of scars are to be evaluated under diagnostic codes 7800, 7801, 7802, and 7804. The Board notes that the Veteran has asserted that her right ankle scar causes functional limitation. The Board also acknowledges that a December 2014 correspondence from the Veteran's provider indicates the same, and the March 2018 VA examiner noted the scar restricts her range of motion to the degree that it could impact her ability to work. However, limited range of motion and associated functional limitations of the right ankle have already been considered under the Veteran's rating for her status post right ankle ligament surgery with right foot tendonitis. Moreover, the March 2018 VA examiner did not indicate any other pertinent findings related to the Veteran's right ankle scar. Therefore, the evidence does not show a separate rating is warranted under diagnostic code 7805 for any other disabling effects resulting from the right ankle scar. Neither the Veteran nor his representative has raised any other issues during either appeal period, or have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 368 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Entitlement to an increased rating in excess of 10 percent from July 1, 2014 to January 15, 2018, and in excess of 20 percent thereafter for a right foot disability, status post right ankle ligament surgery with right foot tendonitis, is remanded. In a March 2018 VA examination, the Veteran was found to have flare ups described as constant pain and functional loss that made it not likely for her to drive with her right foot and do her physical training test for the Reserves. The examiner noted the range of motion testing resulting in dorsiflexion to 10 degrees and plantar flexion to 15 degrees, including pain that caused functional loss. However, the Veteran was able to do repetitive testing without additional functional loss or range of motion. As far as repeated use over time and flare ups, the examiner indicated the Veteran was not examined immediately after repetitive use over time or during a flare up. However, he found the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time and flare ups. Notably, the examiner indicated he was unable to say without mere speculation if pain, weakness, fatigability, or incoordination significantly limits functional ability with repeated use over a period of time or during flare ups as loss of range of motion depends on the type of activity being performed and the severity of pain experienced by the Veteran. Moreover, he did not provide an estimation or describe the range of motion limitations. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court noted that the adequacy of a VA examination not conducted during a flare-up depends on whether the examiner was sufficiently informed of and conveyed any additional or increased symptoms and limitations experienced during a flare-up. As noted above, in this case, the examiner stated that he could not provide pertinent findings regarding repetitive use over time or flare ups without resorting to mere speculation. He also did not document any efforts he made to provide an estimate of functional loss. Additionally, the March 2018 VA examiner indicated that the Veteran did not use any assistive devices. However, in her June 2016 VA Form 9, the Veteran reported that she used a medical knee scooter to get around as she cannot walk all the time. Therefore, it does not appear this fact was considered, and it is unclear if the VA examination captures the current severity and manifestations of the Veteran's service-connected disability. For these reasons, an additional VA examination is needed to ascertain the current severity and manifestations of the Veteran's service-connected right ankle disability. An initial rating in excess of 10 percent for right lower extremity neuropathy is remanded. The Board notes that the Veteran has asserted that her right lower extremity neuropathy produces severe incomplete paralysis. Moreover, a June 2016 correspondence from the Veteran's provider indicates she experiences severe incomplete paralysis of the musculocutaneous nerve. The correspondence was not accompanied with an examination. Conversely, an October 2014 VA examiner indicated she had moderate incomplete paralysis of the right musculocutaneous nerve. The January 2018 VA examiner noted the Veteran had moderate incomplete paralysis of the anterior tibial nerve but found no paralysis of the musculocutaneous nerve. It appears clarification is needed to determine if the Veteran experiences paralysis of various nerves in her right lower extremity and to what degree or severity. Additionally, the Board finds that the Veteran's increased claim for a right foot disability can have an impact on her increased claim for right lower extremity neuropathy. Therefore, the claim is inextricably intertwined with the right foot disability. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). For these reasons, the claim is remanded. The matters are REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for her right ankle disability, including Dr. T.S, including the first and last page of her examination. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. Any outstanding VA medical records not already obtained and associated with the claims file. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to ascertain the current severity and manifestations of her service-connected right ankle disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the Veteran's service-connected right ankle disability. In particular, he or she should provide the range of motion in degrees and test the Veteran's range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing for both the right and left ankles. The examiner should further address whether there is any ankylosis; malunion of the os calcis or astragalus; or, evidence of an astragalectomy. The extent of any incoordination, weakened movement, and excess fatigability on repeated use should also be described by the examiner. If feasible, the examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. The examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. The examiner should opine (estimate) as to any resultant loss in range of motion that would occur during flare-ups, or explain why it is not feasible to render such an opinion. The examiner is advised that an opinion must be based on estimates derived from information procured from relevant sources, including the lay statements of the Veteran. VA's Clinician's Guide specifically advises examiners to try to procure information necessary to render an opinion regarding flare-ups from veterans. A clear rationale for all opinions is requested and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. The Veteran should be afforded a VA examination to ascertain the current severity and manifestations of her service-connected right lower extremity neuropathy. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. It should be noted that the Veteran is competent to attest to factual matters of which she has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the disabilities. In particular, he or she should identify the affected nerve or nerve group. For each nerve or nerve group affected, the examiner should indicate whether the impairment is mild, moderate, or severe. He or she should also state whether there is incomplete or complete paralysis. To the extent possible, the examiner should distinguish the symptomatology attributable to each nerve. If the examiner is unable to distinguish the symptoms attributed to each nerve, the examiner should so state in the report. In addition, the examiner should identify and describe all complications of the Veteran's right lower extremity neuropathy. The Board notes that a June 2016 correspondence from the Veteran's provider indicates she experiences severe incomplete paralysis of the musculocutaneous nerve. Contrarily, an October 2014 VA examiner indicated she had moderate incomplete paralysis for right musculocutaneous nerve and a January 2018 VA examiner indicated the Veteran had moderate incomplete paralysis of the anterior tibial nerve but found no paralysis of the musculocutaneous nerve. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.M. Walker 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.