Citation Nr: 1134834 Decision Date: 09/16/11 Archive Date: 09/23/11 DOCKET NO. 07-39 112 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial compensable rating for the service-connected status post right Achilles tendon repair with osteoarthritis, calcaneal spur, and healed right posterior ankle scar, prior to July 20, 2009. 2. Entitlement to an initial increased rating in excess of 10 percent for the service-connected status post right Achilles tendon repair with osteoarthritis, calcaneal spur, and healed right posterior ankle scar, beginning on July 20, 2009. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD C.L. Krasinski, Counsel INTRODUCTION The Veteran served on active duty from January 1976 to January 2005. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision by the RO. In a September 2009 rating decision, the RO assigned an increased rating of 10 percent for the service-connected right Achilles tendon repair with osteoarthritis, a calcaneal spur and healed right posterior ankle scar effective on July 20, 2009, the date of a VA fee-basis examination. Inasmuch as a rating higher than 10 percent for the service-connected Achilles tendon disability is available, the claimant is presumed to be seeking maximum available benefit for a given disability, and the claims for increase, as reflected on the title page, remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran was scheduled to testify before a Veterans Law Judge at the RO in February 2010, but failed to appear. His request for a hearing is accordingly deemed to have been withdrawn. See 38 C.F.R. § 20.704(d). In March 2010, the Board remanded the claim for an increase rating for the service-connected right Achilles tendon with osteoarthritis, a calcaneal spur and healed right posterior ankle scar to the RO for additional development of the record. However, in addressing the rating assigned for the service-connected right Achilles tendon with osteoarthritis, a calcaneal spur, and healed right posterior ankle scar beginning on July 10, 2009, the Board identified the issue as that of entitlement to a rating in excess of 20 percent effective on that date. Because the rating assigned at that time was actually 10 percent, this matter must be returned to the RO for readjudication in order to afford every consideration to the Veteran in evaluating the severity of the service-connected disability. Accordingly, the issue of a rating in excess of 10 percent for the service-connected right Achilles tendon repair with osteoarthritis, a calcaneal spur and healed right posterior ankle scar, beginning on July 20, 2009 is being remanded to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDING OF FACT For the period of the appeal prior to July 20, 2009, the service-connected right Achilles tendon repair with osteoarthritis, a calcaneal spur, and healed right posterior ankle scar is shown to have been manifested by complaints of pain following heavy or prolonged use and to have been productive of a disability picture that more nearly resembled that of degenerative changes with satisfactory evidence of painful motion. CONCLUSION OF LAW Prior to July 20, 2009, the criteria for the assignment of an initial rating of 10 percent for the service-connected right Achilles tendon repair with osteoarthritis, a calcaneal spur and healed right posterior ankle scar were met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.20, 4.40, 4.45, 4.71a including Diagnostic Code 5003, 5010, 5271 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of the VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board concludes that the Veteran has been afforded appropriate notice under VCAA. The RO provided the VCAA notice letters to the Veteran in February 2006, June 2006, July 2008, and March 2010. The letters notified the Veteran of what information and evidence must be submitted to substantiate claims for service connection and increased ratings, as well as what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also told to inform VA of any additional information or evidence that VA should have, and was told to submit evidence in support of his claim to the RO. The content of the letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The requirements of VCAA also include notice of a disability rating and an effective date for award of benefits if service connection is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The letters dated in June 2006 and March 2010 provided this notice. The claims were readjudicated in October 2007, September 2009 and May 2011, thus curing any lack of timeliness of notice. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Courts have held that were the underlying claim of service connection has been granted and there is disagreement as to downstream questions, the claim has been substantiated and there is no need to provide additional VCAA notice nor is there prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Board finds that all relevant evidence has been obtained with regard to the Veteran's claims, and the duty to assist requirements has been satisfied. All available service treatment records were obtained. The VA treatment records dated from February 2007 to September 2010 are associated with the claims folder. There is no identified relevant evidence to be obtained. The Veteran underwent VA examinations in 2006 and 2009 to obtain medical evidence as to the severity of the service-connected disability. Under the circumstances, the Board finds that there is no reasonable possibility that further assistance would aid the Veteran in substantiating the claims. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2010). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2010). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2010). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In Fenderson v. West, 12 Vet. App. 119 (1999), the United States Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. Cf. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In Fenderson, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127. See also Hart v. Mansfield, 21 Vet. App. 505 (2007). In DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court held that for disabilities evaluated on the basis of limitation of motion, VA was required to apply the provisions of 38 C.F.R. §§ 4.40, and 4.45, pertaining to functional impairment. The Court instructed that, in applying these regulations, VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, or incoordination. Such inquiry was not to be limited to muscles or nerves. These determinations were, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, or incoordination. Under Diagnostic Code 5271 (ankle, limited motion), marked limitation of motion in the ankle warrants a 20 percent disability rating, and moderate limitation of motion in the ankle warrants a 10 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5271. Under Diagnostic Code 5270 (ankylosis of the ankle), a 20 percent evaluation is assigned for ankylosis of the ankle in plantar flexion less than 30 degrees. A 30 percent rating is warranted for ankylosis of the ankle in plantar flexion, between 30 and 40 degrees, or in dorsiflexion, between zero and 10 degrees. A 40 percent rating is warranted for ankylosis of the ankle in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion or eversion deformity. 38 C.F.R. § 4.71a, Diagnostic Code 5270. Normal ankle joint motion is from zero to 20 degrees of dorsiflexion and zero to 45 degrees of plantar flexion. 38 C.F.R. § 4.71a, Plate II. Analysis The RO assigned an initial no percent rating to the service-connected right Achilles tendon repair with osteoarthritis, a calcaneal spur and healed right posterior ankle scar beginning on February 1, 2005 under Diagnostic Code 5271. Under Diagnostic Code 5271, a 10 percent rating is warranted for moderate limitation of motion of the ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5271. The medical evidence shows that, prior to July 20, 2009, the service-connected disability was manifested by complaints of pain with heavy or prolonged use. There is no evidence of showing of an actual limitation of motion or function loss due to pain that would equate with a moderate limitation of the right ankle motion during this period. The service treatment records showed that, at the retirement examination in January 2005, the Veteran reported "no" when asked if he had painful or swollen joints or foot trouble. He reported having pain with prolonged running. On examination, his lower extremities and feet were noted to be normal. At a February 2006 VA examination, the Veteran reported that his right Achilles tendon disability was doing fairly well, but he did note having pain with heavy use such as running or jogging. On examination, he was noted to have a normal gait. The right ankle had full, pain-free motion. Dorsiflexion was noted to be performed from 0 to 20 degrees, and plantar flexion was from 0 to 45 degrees. There was no evidence of edema, effusion, weakness, tenderness, redness, heat, abnormal movement, guarding or subluxation. His range of motion was noted not to be additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. The X-ray examination of the right ankle was noted to show some postoperative changes, a calcaneal spur, and an old avulsion fracture of the calcaneus. A February 2007 VA treatment record noted that the lower extremity was normal. There was a full range of motion. The Veteran had no complaints pertinent to the right ankle or foot. Thus, the medical evidence shows that, for the initial period of the appeal, the range of motion of the right ankle was normal to the extent that dorsiflexion was performed to 20 degrees and plantar flexion was performed to 45 degrees. On this record, these findings would not suggest the presence of an actual limitation of motion involving the right ankle. See Diagnostic Code 5271. However, the Board also must address whether a compensable rating may be assigned on the basis of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca, supra. As discussed, the Veteran reported having had pain with heavy use such as running or jogging. Thus, there is a showing of some functional impairment due to the right Achilles tendon repair with osteoarthritis, a calcaneal spur, and healed right posterior ankle scar for the initial period of the appeal. The Board finds that, for the period prior to July 20, 2009, the service-connected disability picture is shown to have more closely approximated that of degenerative changes with satisfactory evidence of painful motion of the right ankle so as to warrant the assignment of a 10 percent rating in accordance with the provisions of Diagnostic Code 5003- 5010. Significantly, the July 2009 VA examination showed that the Veteran reported having flare-ups of symptoms two to three times a week that would last from three to five hours, and the severity of the flare-ups was an 8 out of 10, with 10 the most severe. The flare-ups were precipitated by physical activity and were alleviated by rest and medication. The Veteran reported that, during the flare-ups, he had functional impairment manifested by pain with walking, standing, jogging or running, and difficulty moving the foot upwards due to ankle pain. He reported experiencing weakness, stiffness, swelling, redness, giving way, lack of endurance, tenderness and pain. On examination, there was tenderness of the right ankle. There was full range of motion with dorsiflexion to 20 degrees and plantar flexion to 45 degrees. There was pain at 18 degrees of dorsiflexion. The joint was additionally limited by pain with repetitive motion. There was no additional limitation of motion with repetition with fatigue, weakness, lack of endurance or incoordinaion. Significantly, there were noted to be X-ray findings of surgical anchors in the calcaneus from a prior reattachment of the Achilles tendon and minor degenerative changes with a small plantar spur. These noted changes were likely present during the initial period of the appeal. Thus, the VA examination in July 2009 served to confirm that the Veteran was experiencing painful motion due to the service-connected disability that included the residuals of the Achilles tendon repair and some degenerative changes. Moreover, the records submitted by Dr. RB also showed findings of a body scan that included a stress-related injury involving the posterior calcaneus near the insertion of the Achilles tendon in February 2006. Accordingly, on this record, an increased rating of 10 percent, but not higher for the service-connected right Achilles tendon repair with osteoarthritis, a calcaneal spur, and a healed right posterior ankle scar is warranted for the initial period of the appeal. ORDER An increased, initial rating of 10 percent and no more for the service-connected right Achilles tendon repair with osteoarthritis, a calcaneal spur, and a healed right posterior ankle scar for the period of the appeal prior to July 20, 2009 is granted, subject to the regulations controlling disbursement of VA monetary benefits. REMAND As discussed, in order to fully address the issue of an increased rating higher than 10 percent for the service-connected right Achilles tendon repair with osteoarthritis, a calcaneal spur, and a healed right posterior ankle scar for the period beginning on July 20, 2009, the Board finds that additional development should be undertaken prior to further appellate consideration. Accordingly, this remaining matter is REMANDED to the RO for the following action: 1. With the Veteran's assistance, the RO should obtain the necessary authorization to obtain copies of any non-VA treatment records referable to the service-connected right Achilles tendon repair with osteoarthritis, a calcaneal spur, and a healed right posterior ankle scar that are not currently on file. Furthermore, the RO should take all indicated action to ensure that copies of all VA treatment records since August 2007 referable to the service-connected disability are secured. All records obtained pursuant to this request must also be included in the Veteran's claims file. If the search for such records has negative results, documentation to that effect should be included in the claims file. The RO should also notify the Veteran that he may submit additional medical evidence or treatment records to support his claim for increase. 2. Then, the RO should schedule the Veteran for a VA examination to determine the current severity of the service-connected right Achilles tendon repair with osteoarthritis, a calcaneal spur, and a healed right posterior ankle scar. The examiner should review the claims folder, including a copy of this REMAND, and acknowledge such review in the examination report. All indicated testing should be performed. The VA examiner should elicit a complete clinical history from the Veteran and record detailed examination findings in order to facilitate the rating of the service-connected disability in terms of the established criteria. 3. After completing the requested action, and any additional notification and/or development deemed warranted, the RO should readjudicate the claim for increase remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the RO must furnish the Veteran and his representative with a fully responsive Supplemental Statement of the Case and afford them a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). _________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs