Citation Nr: 21042052 Decision Date: 07/11/21 Archive Date: 07/11/21 DOCKET NO. 16-63 426 DATE: July 11, 2021 ORDER Entitlement to a compensable rating for residual scars, left ankle is denied. Entitlement to an evaluation in excess of 30 percent for status post bimalleolar fracture with traumatic arthritis, left ankle is denied. REMANDED Entitlement to a total disability rating based on unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran's residual scars of the left ankle were no painful or unstable; had not resulted in functional impairment; and did not affect an area of at least 6 square inches (39 square centimeters). 2. The most probative evidence does not reach the level of equipoise as to whether the Veteran's status post bimalleolar fracture with traumatic arthritis, left ankle, manifested functional impairment to the extent that higher staged ratings may be assigned at any point during the rating period. CONCLUSIONS OF LAW 1. The criteria for entitlement to a compensable rating for residual scars, left ankle have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, Diagnostic Code (DC) 7805. 2. The criteria for entitlement to an evaluation in excess of 30 percent for status post bimalleolar fracture with traumatic arthritis, left ankle have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5270. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from November 1976 to December 1978 and from January 1979 to October 1984. These matters come before the Board of Veterans' Appeals (Board) on appeal of an October 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously remanded by the Board in July 2019. The case has since been returned to the Board for appellate review. During the pendency of this appeal, in a September 2020 rating decision, the RO granted a separate evaluation for residual scars, left ankle with a rating of 0 percent effective January 3, 2011. However, as this does not constitute a maximum grant of the benefits sought on appeal, the Board has jurisdiction to decide the claim. AB v. Brown, 6 Vet. App. 35, 39 (1993). Additionally, during the pendency of this appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. See 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. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, 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. However, the diagnostic code under which the Veteran's status post bimalleolar fracture with traumatic arthritis, left ankle is currently rated, Diagnostic Code 5270, was not changed. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule of 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. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability; resolving any reasonable doubt regarding the degree of disability in favor of the claimant; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity. See 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.10; see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. Although 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). 1. Entitlement to a compensable rating for residual scars, left ankle The Board finds that the most probative evidence does not reach the level of equipoise in the claim of entitlement to a compensable rating for residual scars, left ankle at any point during the rating period on appeal. The Veteran's residual scars of the left ankle are currently rated at 0 percent under 38 C.F.R. § 4.118, DC 7805. Under Diagnostic Code 7800, a 10 percent rating is warranted for burn scars of the head, face, or neck; or scars of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck - when the skin disability has one characteristic of disfigurement. See 38 C.F.R. § 4.118, DC 7800. Under Diagnostic Code 7801, a 10 percent rating is warranted for burn scars or scars due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage that affect an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.). Id. Higher ratings are available for scars that affect a larger area. Under Diagnostic Code 7802, a maximum 10 percent rating is warranted for burn scars or scars due to other causes, not of the head, face, or neck, that are not associated with soft tissue damage, that affect an area or areas of 144 square inches (929 sq. cm.) or greater. Id. Under Diagnostic Code 7804, one or two scars that are unstable or painful warrant a 10 percent disability rating. 38 C.F.R. § 4.118, DC 7804. A 20 percent disability rating is applicable when there are three or four scars that are unstable or painful. Id. A maximum 30 percent rating is warranted when there are five or more scars that are unstable or painful. Id. Under Diagnostic Code 7805, scars and other effects of scars are evaluated under Diagnostic Codes 7800, 7801, 7802, or 7804. 38 C.F.R. § 4.118, DC 7805. The Board initially notes that Diagnostic Code 7800 is not for application as the scars do not affect the head, face or neck. Further, Diagnostic Codes 7801 and 7802 are not applicable because the evidence does not demonstrate, nor does the Veteran contend that the scars affect an area of at least 6 square inches (39 square centimeters). Therefore, to warrant a rating under Diagnostic Code 7804, the evidence must demonstrate unstable or painful scars. Id., Diagnostic Code 7804, Note (1) (an unstable scar is one where for any reason, there is frequent loss of covering of skin over the scar). The examination reports for the January 2012, September 2012, June 2015, and September 2019 all note that the Veteran's residual scars of the left ankle are not unstable or painful. The examination report for the April 2012 VA ankle conditions examination did not address whether the Veteran had any scars related to his left ankle condition. Post-service treatment records during the period on appeal do not contain complaints of or treatment for unstable or painful scars on the Veteran's left ankle. As the January 2012, September 2012, June 2015, and September 2019 examinations noted that the Veteran's scars were not painful or unstable, did not have a total area equal or greater than 39 square centimeters (6 square inches), and were not located on the Veteran's head, face, or neck, the Veteran did not meet any of the criteria necessary for an initial compensable disability rating for his left ankle scars at any time during the period on appeal. In sum, as the most probative evidence does not reach the level of equipoise, in the claim of entitlement to an initial compensable rating for residual scars, left ankle, the claim may not be granted. 38 U.S.C. § 5107(a). 2. Entitlement to an evaluation in excess of 30 percent for status post bimalleolar fracture with traumatic arthritis, left ankle The Board finds that the most probative evidence does not reach the level of equipoise in the claim of entitlement to a rating in excess of 30 percent for status post bimalleolar fracture with traumatic arthritis, left ankle at any point during the rating period on appeal. The Veteran's left ankle disorder is rated under 38 C.F.R. § 4.71a, DC 5270. DC 5270 provides a 20 percent rating for ankylosis of the ankle with plantar flexion of less than 30 degrees. A 30 percent rating is warranted for ankylosis of the ankle with plantar flexion between 30 and 40 degrees, or dorsiflexion between 0 and 10 degrees. A 40 percent rating is warranted for ankylosis of the ankle with plantar flexion at more than 40 degrees, or dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion or eversion deformity. Turning to the evidence of record, the Veteran was afforded a VA ankle conditions examination in January 2012. The Veteran reported daily left ankle pain and that he ambulates with a limp. He also reported no significant flare ups, instead daily pain. He stated that he did not take any medications and explained that weight bearing activities were difficult for him. Range of motion testing showed plantar flexion to 15 degrees, with objective evidence of painful motion, and plantar dorsiflexion of 0 degrees, with objective evidence of painful motion. The Veteran reported functional loss or functional impairment of his left ankle, including less movement than normal, pain on movement, disturbance of locomotion, and interference with sitting, standing, and weight bearing. Muscle strength testing revealed normal results. The examination report did not note whether the Veteran had ankylosis of the ankle, subtalar and/or tarsal joint. The Veteran was next afforded a VA ankle conditions examination in April 2012. The severity of the Veteran's left ankle ankylosis was in dorsiflexion between 0 and 10 degrees. The Veteran was then afforded a VA ankle conditions examination in September 2012. The Veteran reported that the pain he experienced in his left ankle was a 6 to 7 out of 10. He stated that the pain was generalized and constant, and that he experienced swelling in his left ankle. He explained that his pain control measures included Tylenol, over-the-counter muscle rub; Tramadol, ankle brace, cane, and cast boot. The Veteran reported experiencing flare-ups that lasted up to two weeks, occur 2 to 4 times a year, with no known cause. The examination report noted that the Veteran was unable to perform active/passive range of motion due to ankle ankylosis. The examination report also noted that the Veteran had less movement than normal in his left ankle. Muscle strength testing revealed normal results. The severity of the Veteran's left ankle ankylosis was in dorsiflexion between 0 and 10 degrees and in good weight-bearing position. The Veteran reported that he did not use any assistive devices as a normal mode of locomotion. The Veteran was afforded an additional VA ankle conditions examination in June 2015. The Veteran reported decreased range of motion and pain in his left ankle. He further reported that he did not have any orthotics or braces. He did not report flare-ups of his ankle. The Veteran reported functional loss or functional impairment of his left ankle, including decreased range of motion and pain. Range of motion testing showed plantar flexion 0 to 5 degrees and dorsiflexion of 0 degrees. There was evidence of pain with weight bearing, objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue, and objective evidence of crepitus. Muscle strength testing was active movement against some resistance. The severity of the Veteran's left ankle ankylosis dorsiflexion was 0 degrees. The Veteran reported that he did not use any assistive devices as a normal mode of locomotion. The Veteran was most recently afforded a VA ankle conditions examination in September 2019. Range of motion testing showed plantar flexion 0 to 10 degrees and dorsiflexion 0 to 5 degrees, with pain noted on range of motion testing. The examination report noted evidence of pain with weight bearing and objective evidence of crepitus. Muscle strength testing was active movement against some resistance. The examination noted there was no ankylosis of the left ankle. The Veteran reported that he regularly used a brace and cane as a normal mode of locomotion. In a July 2020 addendum opinion provided by a VA examiner, the examiner was asked to provide clarification of the limitations implied/stated by the June 2015 VA examiner, specifically a statement that the Veteran would need further treatment to keep his 30 percent rating. The July 2020 VA examiner found that the Veteran has severe limitation of the left ankle range of motion, but that the ankle was not ankylosed. He listed the plantar flexion range of motion measurements for the January 2012, June 2015 and September 2019 VA examinations and stated that the June 2015 VA examination was incorrect because it was performed by a resident. As the July 2020 VA examiner did not provide a complete answer for the requested clarification and the answer that he did provide was not supported by adequate rationale, the Board affords the July 2020 addendum opinion little probative weight. Post-service treatment records show treatment for the left ankle during the period on appeal. After careful review of the record, the Board finds that the most probative evidence does not reach the level of equipoise as to the issue of a rating in excess of 30 percent for the left ankle disorder. Therefore, the claim may not be granted. During the period on appeal, the Veteran's left ankle disorder manifested as ankylosis with dorsiflexion between 0 and 10 degrees. Such a level of functional impairment is equivalent to a 30 percent rating. 38 C.F.R. § 4.71z, DC 5270. The Board has considered the Veteran's reports of pain and swelling; however, the Veteran's left ankle disorder has not manifested as ankylosis with plantar flexion at more than 40 degrees, or dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion or eversion deformity at any time during the period on appeal. Therefore, the Veteran does not meet the criteria for a 40 percent rating. 38 C.F.R. § 4.71z, DC 5270. The Board has considered whether a higher rating may be assigned under another diagnostic code applicable to ankles. However, the Veteran's left ankle disorder is already rated under the sole diagnostic code applicable to ankles with a rating greater than 20 percent. See 38 C.F.R. § 4.71a, DC 5271, 5272, 5273, 5274. The Board has also considered the Veteran's lay reports of pain and functional impairment. However, disability ratings are determined by the application of the rating schedule, which does not support entitlement to a higher rating in this case. 38 C.F.R. § 4.2. The Board has also considered whether referral for an extraschedular evaluation is warranted under 38 C.F.R. § 3.321(b). However, the Veteran's symptomatic reports, including pain and limited motion, are directly contemplated by the rating schedule. 38 C.F.R. § 4.71a, DC 5270. Accordingly, a referral for consideration of an extraschedular evaluation is not warranted under the facts of this claim. In sum, as the most probative evidence does not reach the level of equipoise, in the claim of entitlement to a rating in excess of 30 percent for status post bimalleolar fracture with traumatic arthritis, left ankle, the claim may not be granted. 38 U.S.C. § 5107(a). REASONS FOR REMAND 1. Entitlement to a TDIU is remanded. Although the Board regrets the additional delay, further development is required before a decision may be made on the merits of this issue on appeal. The Veteran submitted a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, in September 2020. In his VA Form 21-8940, the Veteran reported that he had worked as a phlebotomist for Wheeler Medical Clinic for 20 hours per week from 2012 to 2013, and as a self-employed truck driver for 40 hours or less per week from 1995 to 2010. However, in a disability report submitted to the Social Security Administration, the Veteran reported that he had worked as a clerical and nurse assistant at a clinic for 5 hours a day, 5 days a week from 2008 to 2010. See Medical Treatment Records Furnished by SSA. He also reported that he had worked full-time as a self-employed long-haul truck driver from 2001 to 2013, and as a long-haul truck driver for two separate trucking companies in 2005 and 2006. Therefore, upon remand, clarification is needed from the Veteran as to the exact dates of employment as a phlebotomist and truck-driver, and whether he was a part-time or full-time employee. Additionally, the Veteran has not submitted a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefit, for the employers he listed in his VA Form 21-8940. On remand, the RO should provide the Veteran with a VA Form 21-4192 to complete, sign, and return, along with his amended VA Form 21-8940. Moreover, the Veteran is service connected for the following disabilities: status post bimalleolar fracture with traumatic arthritis, left ankle; adjustment disorder with mixed anxiety and depressed mood, chronic associated with status post bimalleolar fracture with traumatic arthritis, left ankle; degenerative joint disease of the thoracolumbar spine; left lower extremity radiculopathy associated with degenerative joint disease of the thoracolumbar spine; right lower extremity radiculopathy associated with degenerative joint disease of the thoracolumbar spine; and residual scars, left ankle associated with status post bimalleolar fracture with traumatic arthritis, left ankle. See Rating Decision Code Sheet, dated October 2020. The Veteran's combined disability evaluation rating has been at 80 percent from March 26, 2019. As such, the Veteran has met the schedular criteria for a TDIU since March 26, 2019. 38 C.F.R. § 4.16(a). In his September 2020 VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, the Veteran listed that he last work in 2013. In his application and throughout the appeal, the Veteran has asserted that the combination of his service-connected disabilities has rendered him unable to secure or follow substantially gainful employment. The evidence of record indicates that the Veteran's individual disabilities cause a decrease in ability to perform a full range of work, but there is no assessment of the collective impact of all of his service-connected disabilities on his functional abilities with regard to activities of employment. Accordingly, this claim must be remanded to obtain a VA examination that covers the collective impact of all his service-connected disabilities on his functional abilities with regard to activities of employment. 38 C.F.R. § 4.16. The matter is REMANDED for the following action: 1. Contact the Veteran to request clarification on the VA 21-8940, Application for TDIU, that he submitted in September 2020. Advise the Veteran that there is a discrepancy between the dates of employment and hours worked per week that he listed in his VA 21-8940 and those he listed in the disability report that was submitted to the Social Security Administration. Solicit an amended VA 21-8940, Application for TDIU, from the Veteran to amend the discrepancy between the dates of employment and hours worked per week that he listed in his VA 21-8940 and those he listed in the disability report that was submitted to the Social Security Administration. Provide the Veteran with a VA Form 21-4192 to complete, sign, and return, along with his amended VA Form 21-8940. 2. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his claimed disabilities. After securing any necessary releases, the Agency of Original Jurisdiction (AOJ) should request any relevant records identified. In addition, obtain updated VA treatment records. If any requested records are unavailable, the Veteran and his representative should be notified of such. 3. After the above development has been completed, obtain a VA medical examination from an appropriate examiner to determine the full description of the effects of disability upon the Veteran's employability, to include functional effects of his service-connected disabilities, alone or acting in concert, that might tend to impair his ability to secure and follow substantially gainful employment, consistent with his education and occupational expertise. The electronic claims file must be made available to the examiner, and the examiner must specify in the report that the electronic claims file has been reviewed. The examiner must compile a full work and educational history. This opinion must be provided without consideration of the Veteran's nonservice-connected disabilities or age. To the extent possible, the VA examiner must address the full effects of the functional and industrial impairment due to each of the Veteran's service-connected disabilities (status post bimalleolar fracture with traumatic arthritis, left ankle; adjustment disorder with mixed anxiety and depressed mood, chronic associated with status post bimalleolar fracture with traumatic arthritis, left ankle; degenerative joint disease of the thoracolumbar spine; left lower extremity radiculopathy associated with degenerative joint disease of the thoracolumbar spine; right lower extremity radiculopathy associated with degenerative joint disease of the thoracolumbar spine; and residual scars, left ankle associated with status post bimalleolar fracture with traumatic arthritis, left ankle). The examiner must furnish a full description of the effects of the service-connected disabilities. In doing so, the examiner should fully describe what types of employment activities would be limited because of the service-connected disabilities and what types of employment activities would not be limited (if any). This description may include an opinion on such questions as whether the Veteran's service-connected disabilities precluded standing for extended periods, lifting more than a certain weight, sitting for eight hours a day, performing other specific tasks, etc. The examiner should provide an extensive discussion of the Veteran's physical and mental abilities as well as the effects of any psychological and functional limitations related to his service-connected disabilities in the context of his daily activities, specifically employment. A full rationale must be provided for any opinion offered and a thorough explanation would be helpful for the Board. 4. After completing the above development, and any other development deemed necessary, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, provide a supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran and his representative have had an adequate opportunity to respond. B. G. LeMoine Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fairlie, Associate 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.