Citation Nr: 22017489 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 15-41 330 DATE: March 25, 2022 ORDER Entitlement to an initial 10 percent rating, but no higher, for right ankle surgical scars is granted. Entitlement to an initial rating in excess of 20 percent for a right ankle disability is denied. REMANDED Entitlement to a higher initial rating for a service-connected left knee disability is remanded. FINDINGS OF FACT 1. The Veteran's two right ankle surgical scars have at least as likely as not been painful throughout the appeal period based on the effective date of service connection for the disability, but the most persuasive evidence is against a finding that the scars involve an area of at least 39 square centimeters, have been unstable, or have resulted in any disabling effects, other than pain, at any point in the appeal period. 2. The most persuasive evidence is against a finding that the Veteran has experienced either actual or functional ankylosis of the right ankle at any point in the appeal period. CONCLUSIONS OF LAW 1. The criteria for an initial 10 percent rating, but no higher, for right ankle surgical scars have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.118, Diagnostic Codes 7800-05. 2. The criteria for an initial rating in excess of 20 percent for a right ankle disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran appeared at a hearing before the undersigned in April 2019. A transcript of the hearing is of record. In November 2020, the Board remanded the issues on appeal for further development, which will be discussed in more detail, as necessary, below. The matters were most recently before the Board in December 2021 when they were remanded to ensure due process as the Agency of Original Jurisdiction (AOJ) developed additional evidence pertinent to the Veteran's appeals after the issuance of a February 2021, post-remand supplemental statement of the case (SSOC). The AOJ issued an updated SSOC in January 2022 and has now returned the matters to the Board for further appellate consideration. Principles of Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities 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 viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant's ordinary activity. 38 C.F.R. § 4.10. Where service connection has been granted and the assignment of an initial evaluation is disputed, separate evaluations may be assigned for different periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. VA shall give the benefit of the doubt to the claimant when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 1. Entitlement to an initial 10 percent rating, but no higher, for right ankle surgical scars is granted. The July 2012 rating decision that led to the present appeal granted service for two right ankle surgical scars with an initial noncompensable rating, effective November 29, 2009. The rating criteria for scars are outlined in Diagnostic Codes 7800 through 7805 in the VA Rating Schedule. 38 C.F.R. § 4.118. Diagnostic Code 7800 relates to scars of the head, face, or neck and is therefore not applicable in the Veteran's case. Multiple VA examination reports indicate the Veteran's right ankle surgical scars cover an area of less than 39 square centimeters. For scars to be compensable under Diagnostic Codes 7801 and 7802, they must cover at least 39 square centimeters; therefore, Diagnostic Codes 7801 and 7802 are also inapplicable in the Veteran's case. Diagnostic Code 7803 was eliminated from the VA Rating Schedule prior to the effective date of service connection for the Veteran's scars with some of its provisions being subsumed into Diagnostic Code 7804. See 73 Fed. Reg. 54710 (Oct. 23, 2008). Diagnostic Code 7804 provides progressively higher ratings based on the number of unstable and/or painful scars. Diagnostic Code 7804 provides a 10 percent rating for one or two scars that are unstable or painful. A 20 percent rating is assigned for three or four scars that are unstable or painful. A 30 percent rating is authorized when there are five or more scars that are unstable or painful. Note 1 to Diagnostic Code 7804 explains an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note 2 indicates that, if one or more scars are both unstable and painful, a 10 percent rating should be added to the evaluation that is based on the total number of unstable or painful scars. 38 C.F.R. § 4.118. The Board finds the Veteran's two right ankle surgical scars have at least as likely as not been painful throughout the appeal period based on the effective date of service connection for the disability. The Board acknowledges VA examiners have reported the Veteran's scars have not been painful on examination; however, during the April 2019 hearing before the undersigned, the Veteran credibly and competently testified that his right ankle surgical scars have been painful during the appeal period. The Veteran's credible and competent lay reports of pain are at least as persuasive as the VA examination reports of record. As a result, the Board finds a 10 percent rating is warranted under Diagnostic Code 7804 based on a finding of two painful scars. The Board finds, however, that the most persuasive evidence is against a finding that the scars involve an area of at least 39 square centimeters, have been unstable, or have resulted in any disabling effects, other than pain, at any point in the appeal period. As previously noted, multiple examinations have shown the Veteran's scars involve an area less than 39 square centimeters. These examination reports also establish the scars are not unstable, and there is no other evidence, to include lay reports from the Veteran, that shows he experiences frequent loss of covering of skin over either scar. There is also no indication from the record the Veteran experiences any disabling effects, other than pain, due to his right ankle surgical scars, since his primary right ankle impairment is compensated under Diagnostic Code 5270, as will be discussed in more detail below. In sum, the Board finds an initial 10 percent rating, but no higher, for right ankle surgical scars have been met based on a finding that the Veteran's two right ankle surgical scars have at least as likely as not been painful throughout the appeal period based on the effective date of service connection for the disability, but the most persuasive evidence is against a finding that the scars involve an area of at least 39 square centimeters, have been unstable, or have resulted in any disabling effects, other than pain, at any point in the appeal period. 2. Entitlement to an initial rating in excess of 20 percent for a right ankle disability is denied. The Veteran is currently entitled to a 20 percent rating for his service-connected right ankle disability from the effective date of service connection. A 20 percent rating is the maximum available for the ankle based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5270. To warrant a rating in excess of 20 percent, the evidence must show ankylosis of the ankle under one of the following conditions: in plantar flexion between 30 degrees and 40 degrees (30 percent); in dorsiflexion between 0 degrees and 10 degrees (30 percent); in plantar flexion at more than 40 degrees (40 percent); or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion, or eversion deformity (40 percent). C.F.R. 4.71a, Diagnostic Codes 5270, 5271. Here, the Board finds the most persuasive evidence is against a finding that the Veteran has experienced either actual or functional ankylosis of the right ankle at any point in the appeal period. The Board notes none of the Veteran's ankle examination reports, treatment records, or lay statements in the appeal period suggest he experiences any degree of right ankle ankylosis. In November 2020, the Board remanded the Veteran's appeal of the rating assigned for his service-connected right ankle disability because his previous examinations reports in the appeal period failed to comply with recent developments in case law regarding the adequacy of VA joint examinations. See Sharp v. Shulkin, 29 Vet. App. 26 (2017); Correia v. McDonald, 28 Vet. App. 158 (2016). The post-remand, February 2021 ankle examination report, which complies with the holdings in both Correia and Sharp, shows the Veteran retains some degree of range of motion in the right ankle even after consideration of additional functional impairment due to pain, weakened movement, excess fatigability, and incoordination, to include after repetitive use and during flare-ups. In reaching this finding, the Board fully acknowledges a finding of ankylosis can be established by its functional equivalent, to include during flare-ups; however, the Veteran's February 2021 VA examiner explicitly reported there is no indication of ankylosis in this case and provided an estimate of range-of-motion loss during flare-ups based on the Veteran's lay reports that establishes the Veteran retains at least some degree of motion in his right ankle during even his most extreme flare-ups, constituting the most persuasive evidence as to the material issue of whether the Veteran experiences any degree of right ankle ankylosis. Chavis v. McDonough, 34 Vet. App. 1 (2021). Other ratings pertaining to disabilities of the ankle include ratings based on ankylosis of the subastragalar or tarsal joint (Diagnostic Code 5272), malunion of the os calcis or astragalus (Diagnostic Code 5273), or astragalectomy (Diagnostic Code 5274). Such pathology is not shown in this matter, and those rating criteria would not give rise to a schedular rating in excess of the 20 percent already assigned. In sum, the Veteran is entitled to the highest rating available for the right ankle based on limitation of motion. The most persuasive evidence is against a finding that the Veteran has experienced either actual or functional ankylosis of the right ankle at any point in the appeal period. Accordingly, the criteria for an initial rating in excess of 20 percent have not been met for the right ankle; to that extent, the Veteran's appeal is denied. Finally, the Board notes the Veteran is entitled to a total disability rating based on individual unemployability (TDIU) throughout the appeal period, does not meet the schedular percentage requirements for TDIU outlined in 38 C.F.R. § 4.16(a) for an individual disability at any point in the appeal period, and has not otherwise asserted an individual disability renders him unemployable standing alone; therefore, further discussion of TDIU is not necessary in the context of this appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). REASONS FOR REMAND While it regrets the additional delay, the Board finds a new examination is necessary to ensure the decision on the Veteran's appeal of the rating assigned for his service-connected left knee disability is fully informed. Initially, the Board notes VA treatment records first associated with the claims file in July 2021 show the Veteran began seeking treatment for "nerve pain" in the left lower extremity in approximately October 2020. The source of such pain is unclear from the record, raising the possibility that it could be an aspect of the Veteran's service-connected left knee disability or secondary to such disability. See Bailey v. Wilkie, 33 Vet. App. 188 (2021); Morgan v. Wilkie, 31 Vet. App. 162 (2019). Further, the Veteran's most recent knee examiner in February 2021 noted the Veteran does not experience left knee flare-ups, which is inconsistent with all the other knee examination reports during the appeal period; therefore, a new examination will also provide the opportunity to address this inconsistency in the record. The matter is REMANDED for the following action: Schedule the Veteran for a new knee examination. The selected examiner should conduct all indicated tests and studies, to include range of motion testing. The knees should be tested in both active and passive motion and in weight-bearing and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). If the examiner determines the Veteran does not experience flare-ups, the examiner must provide a rationale addressing the inconsistency with the prior examination reports during the appeal period dating back to his initial March 2012 to the present (i.e. whether the prior notation of flare-ups was in error and/or whether the previously noted flare-ups have since resolved). If it is determined that flare-ups have since resolved, the examiner is asked to provide an estimate of additional range-of-motion loss prior to such resolution, to the extent possible based on the available evidence. The examiner is also asked to address the nerve pain affecting the left lower extremity and provide an opinion as to whether this symptomatology is at least as likely as not (at least an approximate balance of positive and negative evidence) a component of or otherwise proximately due to, or aggravated by, his service-connected left knee disability, to include a full nerve assessment if found to be a component of or otherwise proximately due to, or aggravated by, his service-connected left knee disability. The opinion must be supported by a full rationale and address both causation and aggravation to be deemed adequate. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. S. Kyle, 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.