Citation Nr: 21031033
Decision Date: 05/20/21	Archive Date: 05/20/21

DOCKET NO. 12-05 741
DATE: May 20, 2021

ORDER

Entitlement to an initial compensable rating for left foot and ankle surgical scar, prior to February 2, 2021, and a rating higher than 10 percent thereafter, is denied.

Entitlement to a rating higher than 10 percent for left ankle limitation of motion, prior to March 6, 2017, is denied.

Entitlement to a 20 percent rating, but no higher, for left ankle limitation of motion, effective March 6, 2017, is granted.

FINDINGS OF FACT

1. Prior to February 2, 2021, the Veteran's service-connected left foot and ankle surgical scar was not unstable or painful, measured less than 144 square inches (929 square centimeters) in total area, was not associated with underlying soft tissue damage, and resulted in no functional impairments or disabling effects.

2. Since February 2, 2021, the Veteran's service-connected left foot and ankle surgical scar is painful but not unstable, measures less than 144 square inches (929 square centimeters) in total area, is not associated with underlying soft tissue damage, and results in no functional impairments or disabling effects.

3. Prior to March 6, 2017, the Veteran's left ankle limitation of motion manifested by, at worst, dorsiflexion to 10 degrees with pain and plantar flexion to 45 degrees with no pain, with no evidence of ankylosis.

4. Since March 6, 2017, the Veteran's left ankle limitation of motion is manifested by dorsiflexion to 0 degrees with pain and plantar flexion to 45 degrees without pain, with no evidence of ankylosis.

CONCLUSIONS OF LAW

1. The criteria for an initial compensable rating for left foot and ankle surgical scar prior to February 2, 2021, and higher than 10 percent thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Codes 7804, 7805.

2. The criteria for a rating higher than 10 percent for left ankle limitation of motion prior to March 6, 2017 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (2020 and as amended effective February 7, 2021 by 85 Fed. Reg. 230 (Nov. 30, 2020)).

3. The criteria for a 20 percent rating, but no higher, for left ankle limitation of motion, effective March 6, 2017, have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (2020 and as amended effective February 7, 2021 by 85 Fed. Reg. 230 (Nov. 30, 2020)).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from November 2002 to November 2005.

This matter comes before Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). 

As discussed in prior Board decisions, the Veteran's appeal remains in the legacy system, rather than the modernized review system, also known as the Appeals Modernization Act (AMA). The Board remanded this matter most recently for Agency of Original Jurisdiction (AOJ) review of the Veteran's increased rating claim for left ankle limitation of motion and for a new VA examination to address the current severity of his left foot surgical scar. The AOJ reviewed the left ankle limitation of motion claim and an adequate VA examination was obtained. Therefore the Board finds that the remand instructions were substantially complied with and further remand is unnecessary. See Stegall v. West, 11 Vet. App. 268, 271.

1. Entitlement to an initial compensable rating for left foot and ankle surgical scar, under Diagnostic Code 7805, prior to February 2, 2021, and a rating higher than 10 percent thereafter, under Diagnostic Code 7804

The Veteran seeks higher initial ratings for his service-connected left foot and ankle surgical scar. The scar was initially rated at 0 percent disabling under Diagnostic Code 7805 and is currently 10 percent disabling under Diagnostic Code 7804. Initially, the Board notes that the scar is not located on the Veteran's head, face, or neck; therefore, Diagnostic Code 7800 is not applicable. 

During the pendency of the appeal, certain rating criteria for evaluating scar conditions were revised, effective August 13, 2018. See 83 Fed. Reg. 32,592 (July 13, 2018); 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7805. The Veteran's symptoms are evaluated under both the old and new rating criteria, and the version that is more beneficial to the Veteran is applied, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the old criteria prior to August 13, 2018 and both the old and new rating criteria from August 13, 2018. The criteria that is more favorable to the Veteran will be applied.

The minimum compensable rating (10 percent) for a scar not of the head, face, or neck, is available under Diagnostic Codes 7801, 7802, and 7804. A 10 percent rating under Diagnostic Code 7801, which was in effect until August 13, 2018, required a deep and non-linear scar to have a total area of 6 inches (39 sq. cm.). See 38 C.F.R. § 4.118, Diagnostic Code 7801. A 10 percent rating under Diagnostic Code 7802, also in effect until August 13, 2018, required a superficial and non-linear scar to have a total area of 144 square inches (929 sq. cm.). See 38 C.F.R. § 4.118 (2017), Diagnostic Code 7802. A "deep" scar is one associated with underling soft tissue damage, and a "superficial" scar is one not associated with underlying soft tissue damage. See 38 C.F.R. § 4.118, Diagnostic Code 7801, Note (1); Diagnostic Code 7802, Note (1). Separately, a 10 percent rating under Diagnostic Code 7804, which remains unchanged, requires a scar to be unstable or painful. See 38 C.F.R. § 4.118, Diagnostic Code 7804. An "unstable" scar is one where, for any reason, there is frequent loss of covering of skin over the scar. See 38 C.F.R. § 4.118, Diagnostic Code 7804, Note (1).

Under the current rating criteria, Diagnostic Code 7801 no longer uses the term "deep," and it is no longer relevant whether a scar not of the head, face, or neck is linear or non-linear. Instead, the current rating criteria distinguishes between scars that are associated with underlying soft tissue damage and scars that are not. The minimum compensable rating requires that a scar not associated with underlying soft tissue damage to have a total area of 144 square inches (929 sq. cm.) or greater, or, to be unstable or painful. See 38 C.F.R. § 4.118, Diagnostic Codes 7802, 7804. Specifically, a 10 percent rating is warranted for one or two scars that are unstable or painful, a 20 percent rating is warranted for three or four scars that are unstable or painful, and a 30 percent rating is warranted for five or more scars that are unstable or painful. See 38 C.F.R. § 4.118, Diagnostic Code 7804. Diagnostic Code 7805 instructs that any disabling effects not considered in a rating provided under Diagnostic Codes 7800 through 7804 be evaluated under an appropriate diagnostic code. See 38 C.F.R. § 4.118, Diagnostic Code 7805.

The Veteran was afforded VA scar examinations in June 2013, March 2017, March 2019, and February 2021. The March 2019 examination did not address the Veteran's left foot and ankle scar; therefore it will not be discussed.

At the June 2013 examination, the Veteran's scar was measured at 13 cm in length with no width specified. The examiner noted that it was linear, not painful or unstable, and did not result in limitation of function. At the March 2017 examination, his scar was measured at 11 cm by 1 cm and was again noted as linear, not painful or unstable, and not resulting in limitation of function. Separately, at a February 2020 VA ankle (and not scar-specific) examination, the examiner noted that the Veteran's left foot and ankle scar was 14 cm by 0.2 cm and was neither painful nor unstable.

Most recently, at the February 2021 examination, the Veteran's scar was measured at 12 cm by 1 cm. The examiner noted that the scar was painful, describing it as achy and tender, but not unstable and did not result in limitation of function. 

The Veteran received a 10 percent rating for his left foot and ankle surgical scar in the February 10, 2021 rating decision, effective February 2, 2021 under Diagnostic Code 7804, based on the February 2021 examination.  

After reviewing all records, the Board finds that a compensable rating for the left foot and ankle surgical scar prior to February 2, 2021 is not warranted. The medical evidence from this period shows that the Veteran had a scar that was neither painful nor unstable, and the total area of the scar did not exceed 39 square centimeters. The Board is cognizant of the Veteran's contention that he should receive a 10 percent rating for this scar due to its size compared to his service-connected and compensable left shoulder scar. While the Board understands his frustration, unlike his compensable left shoulder scar, the medical records do not show that the Veteran's left foot and ankle scar was painful prior to February 2, 2021, associated with underlying soft tissue damage and greater than 6 square inches (39 sq. cm.), or greater than 144 square inches (929 sq. cm.) at any point. The Board also recognizes that the Veteran's July 2013 Correspondence references pain from his left ankle Achilles tendon injury and scar. Specifically, the Veteran stated that "the injury/scar from my Achilles tendon rupture/surgery is 5x more painful and is on an extremity I use to walk on." See July 2013 Correspondence. The Board notes, though, as previously mentioned, that one month prior to this statement, at the June 2013 VA examination, the Veteran reported that his left foot and ankle scar was not painful, and at the March 2017 and February 2020 VA examinations he again reported that his left foot and ankle scar was not painful. Accordingly, the totality of evidence weighs against a finding that the Veteran's left foot and ankle scar was painful prior to the February 2021 VA examination. Therefore, a compensable rating for this period is not warranted under any relevant diagnostic codes.

Separately, the Board finds that a rating higher than 10 percent is not warranted at any point during the period on appeal. The medical evidence shows, at worst, a total scar area of either 12 or 13 square centimeters. There is no evidence that the Veteran's scar was painful prior to the February 2021 examination, and at no point during the appeal period was the Veteran's scar unstable. Neither the medical nor the lay evidence show that the Veteran has three or four painful left ankle scars, as required by the 20 percent rating. 

Accordingly, the Veteran's claim of entitlement to an initial compensable rating for left foot and ankle surgical scar, prior to February 2, 2021, and to a rating higher than 10 percent thereafter is denied.

2. Entitlement to a rating higher than 10 percent for left ankle limitation of motion

The Veteran seeks a higher rating for his service-connected left ankle limitation of motion. The Board finds that a staged rating is warranted as the evidence shows distinct periods where his left ankle exhibited symptoms that warrant different ratings.

The Veteran's current 10 percent rating is assigned pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5271, for limitation of motion of the ankle. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended, effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id.

Under the prior version of Diagnostic Code 5271, moderate limitation of motion in the ankle warrants a 10 percent disability rating and marked limitation of motion in the ankle warrants a 20 percent disability rating. The revised Diagnostic Code 5271 provides a 10 percent rating for moderate limited motion of the ankle with less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion, and a maximum 20 percent rating for marked limited motion of the ankle with less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. 

Prior to the regulatory change, under Diagnostic Code 5271, the rating schedule did not define the terms "moderate" and "marked," but guidance from Veterans Benefits Administration's (VBA) M21-1 Adjudication Procedures Manual states that moderate limitation of ankle motion is present when there is less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion and marked limitation of motion is demonstrated when there is less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion, similar to the current rating criteria. See VBA Manual M21-1, III.iv.4.A.3.k. The M21-1 is not binding on the Board and, to rely on the M21-1, the Board must conduct an independent analysis before determining whether the provisions may be relied upon as a factor to support its decision. See Overton v. Wilkie, 30 Vet. App. 257 (2018).

The Board finds that the M21-1 may be relied upon as a factor based on VA's proposed revisions to Diagnostic Code 5271 made in February 2003 and August 2017. See 68 Fed. Reg. 6998 (Feb. 11, 2003); 82 Fed. Reg. 35719 (Aug. 1, 2017). In February 2003, VA hired an outside consultant, who convened a panel of non-VA specialists, to review the portion of the rating schedule dealing with the musculoskeletal system to formulate recommendations. VA proposed to adopt many of the recommendations, including defining "moderate" and "marked" similarly to the current M21-1 guidelines to ensure consistent evaluations. See 68 Fed. Reg. at 7018. In August 2017, VA proposed to redefine "moderate" and "marked" exactly as listed in the M21-1 and the proposal noted that "as VA currently uses these standards to define marked and moderate, this change is intended as a clarification of current policy and would ensure consistent application of these criteria among rating personnel." 82 Fed. Reg. at 35723. The Board finds that the bases underlying VA's proposed rules, which were created with non-VA specialists, are persuasive reasons to partly rely on M21-1 in rating ankle disabilities under Diagnostic Code 5271.

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. Additionally, 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate.

For the period prior to March 6, 2017, the Board finds that the Veteran is not entitled to a rating higher than 10 percent for his left ankle limitation of motion.

The Veteran was afforded VA foot and ankle examinations in June 2013, March 2017, and February 2020. 

At the June 2013 examination, which did not include range of motion (ROM) testing, the examiner noted that the Veteran had 5/5 strength in both feet because he was extremely strong, but had slightly less strength in left foot dorsiflexion and plantar flexion. While the Veteran reported trouble climbing stairs and inability to play sports due to ankle weakness, the examiner noted that his foot condition did not impact his ability to work. 

The Veteran's VA treatments records, which are associated with the claims file, include ROM testing in August 2007, September 2007, and February 2009. In August 2007, one month after his Achilles tendon surgery, the Veteran had dorsiflexion to 10 degrees and plantar flexion to 20 degrees, and in September 2007, two months post-surgery, he had dorsiflexion to 10 degrees and plantar flexion to 45 degrees. In February 2009, he had dorsiflexion to 20 degrees and plantar flexion to 35 degrees. While his VA treatment records do not contain ROM testing after 2009, strength testing revealed normal dorsiflexion and 4/5 plantar flexion of his left ankle in June 2010. In March 2011, he reported no mobility, balance, or gait problems, and in May 2012 he reported playing football as a hobby. In a July 2013 Correspondence, he stated that his left lower leg feels like there is a rod in it. 

The record is largely devoid of any left ankle examinations, complaints, or treatment from the Veteran's July 2013 Correspondence until the March 2017 VA examination. At a January 2015 VA muscle injury examination for the Veteran's service-connected shoulder injury, strength testing revealed normal strength with left ankle dorsiflexion and plantar flexion, but because the examination was focused on the shoulder, these results were not discussed and left ankle ROM testing was not conducted. 

After reviewing all records, the Board finds that the Veteran is not entitled to a rating higher than 10 percent prior to March 6, 2017. At no point during this period did the Veteran have dorsiflexion less than 5 degrees or plantar flexion less than 10 degrees, as required by the Diagnostic Code. The Board recognizes that the June 2013 examination did not include testing for passive, active, weight-bearing, and non-weight-bearing ROM, nor assessment of potential functional loss during flare-ups, as required by Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). Nonetheless, there is no evidence suggesting that the Veteran's left ankle limitation of motion warrants a higher rating prior to March 6, 2017. During this period, he reported playing football and having no mobility, balance or gait problems, and his post-surgery ROM testing revealed only moderate, not marked, limited motion. The Veteran's left ankle limitation of motion symptoms prior to March 6, 2017 most closely approximated a 10 percent rating. 

From March 6, 2017 onward, the Board finds that the Veteran is entitled to a 20 percent rating for his left ankle limitation of motion, the maximum schedular rating under Diagnostic Code 5271.

At the March 2017 examination, initial ROM testing revealed left ankle dorsiflexion to 0 degrees with and plantar flexion to 45 degrees with no pain, and no additional loss of function or ROM with repetitive use testing. Strength testing revealed normal dorsiflexion strength and 4/5 plantar flexion strength. The examiner noted that pain and weakness significantly limit the Veteran's functional ability with repeated use over a period of time, but indicated that this limitation cannot be described in terms of ROM. The Veteran reported no flare-ups, but the examiner noted that there was functional loss from inability to climb stairs or ladders, inability to toe rise on the left, and limited foot clearance. Separately, the Veteran did not have ankylosis, and no left ankle instability or dislocation was suspected. 

At the February 2020 examination, initial ROM testing revealed left ankle dorsiflexion to 10 degrees with pain and plantar flexion to 45 degrees with no pain, and no additional loss of function or ROM with repetitive use testing. Strength testing revealed normal dorsiflexion strength and 4/5 plantar flexion strength. The examiner noted that pain significantly limits the Veteran's functional ability with repeated use over a period of time but with no difference in ROM. The Veteran reported flare-ups related to prolonged standing and walking, and the Veteran noted that pain significantly limits his functional ability with flare-ups, with no difference in ROM. Separately, the Veteran did not have ankylosis, but left ankle instability and/or dislocation was suspected.

The Veteran twice attended VA physical therapy in January 2019. ROM testing revealed left ankle dorsiflexion to 0 degrees and plantar flexion to 30 degrees. The VA physical therapist noted tenderness in the left calf, plantar fascia, and lateral dorsum, and the Veteran reported pain ranging from 5 to 8 out of 10 in his left Achilles area.

After reviewing all records, the Board finds that a 20 percent rating is warranted, effective March 6, 2017. The evidence shows that on this date, the Veteran had left ankle dorsiflexion less than 5 degrees at the March 2017 exam and thereafter, as required by the Diagnostic Code. Therefore, when resolving doubt in the Veteran's favor, the Board finds a 20 percent rating is warranted from March 6, 2017, the date of the March 2017 VA examination, and the earliest a factually ascertainable increase occurred. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015) (stating that, in determining when an increase is "factually ascertainable," a date should not be assigned mechanically from the date of the examination, but from the date that the increase in disability was first factually ascertainable). Because the record is devoid of any left ankle ROM testing, treatment, or indicators between the June 2013 VA examination and the March 2017 VA examination, March 6, 2017 is the earliest date where an increase in the Veteran's left ankle limitation of motion disability was ascertainable.

A rating higher than 20 percent is not warranted at any time during the rating period on appeal. As noted, a 20 percent rating is the maximum under Diagnostic Code 5271. A 30 percent rating under Diagnostic Code 5270 compensates for ankylosis of the ankle in plantar flexion between 30 degrees and 40 degrees or in dorsiflexion between zero degrees and 10 degrees. 38 C.F.R. § 4.71a, DC 5270. The March 2017 and February 2020 VA examiners specifically noted no left ankle ankylosis, and while the Veteran's left ankle dorsiflexion was recorded at 0 degrees in March 2017 and January 2019, he had dorsiflexion at 10 degrees in February 2020 with no additional loss of function from repetitive use and no reports of immobility throughout the period on appeal. Therefore, a rating higher than 20 percent for ankylosis or its functional equivalent is not warranted. See Chavis v. McDonough, No.18-2928, 2021 U.S. App. Vet. Claims, LEXIS 660, *20 (Apr. 16, 2021). Similarly, a higher rating due to additional functional loss under 38 C.F.R. §§ 4.40 and 4.45 is also not available. Johnston v. Brown, 10 Vet. App. 80 (1997) (holding that 38 C.F.R. §§ 4.40 and 4.45 do not apply and that a higher rating is not warranted for painful motion or functional loss when the maximum schedular disability rating based on limitation of motion is in effect).

Accordingly, the Veteran's claim of entitlement to an initial rating higher than 10 percent for left ankle limitation of motion is denied for the period prior to March 6, 2017, and granted at 20 percent, but no higher, from March 6, 2017 onward.

 

 

MICHELLE L. KANE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Tierno

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.