Citation Nr: 1315666 Decision Date: 05/13/13 Archive Date: 05/15/13 DOCKET NO. 94-35 576 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for right knee degenerative joint disease to include secondary to left Achilles tendinitis with a spur. 2. Entitlement to service connection for left knee degenerative joint disease to include secondary to left Achilles tendinitis with a spur. 3. What rating is warranted for left Achilles tendinitis with a spur from July 13, 1994 to March 19, 2010? 4. What rating is warranted for left Achilles tendonitis with a spur from March 20, 2010? REPRESENTATION Appellant represented by: Douglas E. Sullivan, Esq. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Barner, Associate Counsel INTRODUCTION The Veteran served on active duty for training from May to October 1987, and on active duty from December 1990 to May 1991. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from an October 1993 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, that granted entitlement to service connection and assigned an initial noncompensable rating for the Veteran's left ankle disability. In June 1994, the Veteran testified during a personal hearing at the RO. A transcript of the hearing is of record. In a March 1996 decision, the Board denied the Veteran's claim. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In March 1998, the Board remanded the case following an April 1997 decision of the Court granting a joint motion for remand. In a May 2003 rating decision VA awarded a 10 percent evaluation for the Veteran's left ankle disability, effective from July 13, 1994. In a February 2005 decision, the Board dismissed the Veteran's claim of entitlement to an effective date prior to July 13, 1994, for the award of a 10 percent evaluation for left Achilles tendinitis with a spur, and remanded his increased rating claim to the RO for further development. In December 2008, the Board denied the Veteran's appeal, and he again appealed to the Court. In February 2010, the Veteran, through his attorney, and the Secretary of Veterans Affairs, submitted a joint motion for remand which was granted by the Court later that month. In March 2011, the Board denied entitlement to an evaluation in excess of 10 percent for the period from October 7, 1992. The Veteran again appealed to the Court. In July 2012, the Court affirmed the Board's denial of entitlement to an increased rating for the term from October 7, 1992 to July 12, 1994, but vacated the Board's decision denying entitlement to an increased evaluation for the term since July 13, 1994. As the Veteran perfected an appeal to the initial rating assigned following the grant of service connection, the Board has characterized the issue in accordance with the decision of the Court in Fenderson v. West, 12 Vet. App. 119 (1999) (appeals from original awards are not to be construed as claims for increased ratings), that requires consideration of the evidence since the effective date of the grant of compensation. The issues of entitlement to service connection for degenerative arthritis of the left and right knees secondary to left Achilles tendinitis with a spur; and the question what evaluation is in order for left Achilles tendinitis with a spur from March 20, 2010, are addressed in the REMAND portion of the decision below and are REMANDED to the RO. FINDINGS OF FACT 1. The objective and probative evidence of record demonstrates that, from July 13, 1994, to March 19, 2010, left Achilles tendinitis was not manifested by either a marked limitation of ankle motion, or by ankylosis in plantar flexion of less than 30 degrees. 2. From July 13, 1994, to March 19, 2010. the objective and probative evidence of record does not show the Veteran's disability picture was exceptional. CONCLUSION OF LAW 1. From July 13, 1994 to March 19, 2010, the schedular criteria for entitlement to a 20 percent rating for left Achilles tendinitis with spur were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.20, 4.27, 4.31, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5024, 5270, 5271 (2012). 2. The disability picture presented by the Veteran's left Achilles tendinitis with spur between July 13, 1994 to March 19, 2010, was not exceptional, and referral for extraschedular consideration is not indicated. 38 C.F.R. § 3.321(b)(1) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As service connection, an initial rating, and an effective date have been assigned, the notice requirements of 38 U.S.C.A. § 5103(a) have been met. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Consequently, discussion of VA's compliance with VCAA notice requirements would serve no useful purpose. VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. He was provided the opportunity to present pertinent evidence and testimony. In sum, there is no evidence of any VA error in notifying or assisting him that reasonably affects the fairness of this adjudication. See 38 C.F.R. § 3.159(c). Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. The Board has reviewed all of the evidence in the Veteran's claims files and his Virtual VA file. This includes his written and oral statements, service treatment and personnel records, as well as VA medical examination and treatment records through March 2010. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims files shows, or fails to show, with respect the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Background The attorney, in his February 2011 brief in support of the appeal, asserts that the Veteran's left ankle symptomatology meets or approximates the schedular criteria for a 20 percent rating. The Court in its July 2012 decision, in pertinent part, vacated the Board's March 2011 decision finding that the Board failed to address whether the appellant's limitation of dorsiflexion equated to a marked limitation of motion under 38 C.F.R. § 4.71a, Diagnostic Code 5271. While the Board will again review the schedular criteria as it applies to the evidence of record, the Board will also address the attorney's argument is that the Veteran's disorder warrants referral for consideration of a higher rating on an extraschedular basis. Both bases are addressed later in this decision. Governing Law and Regulations (Schedular) Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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 may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58. As noted in the Introduction, the Court held in Fenderson, 12 Vet. App. 119, that the rule from Francisco does not apply where an appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, as is the case with the Veteran's left ankle disability. Rather, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as 'staged' ratings. Fenderson, 12 Vet. App. at 126. Analysis 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, 4.45. As concerns application of the so-called DeLuca provisions, as alluded to, a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The Court has held that 38 C.F.R. § 4.40 does not require a separate rating for pain but rather provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). In written and oral statements, including during his June 1994 personal hearing at the RO, the Veteran maintains that he experiences daily left ankle pain and swelling that is adversely affected by weather and necessitates occasionally staying home due to the pain. In a November 2003 written statement, his attorney argued that the Veteran had a marked limitation of motion, with pain, edema and the need to wear an ankle brace for support. It was noted that the appellant worked in the lawn care business and did not drive a truck. The May 2003 rating decision, however, stated the Veteran drove a truck. The Veteran's left Achilles tendinitis with a spur has been evaluated as 10 percent disabling since July 13, 1994, under 38 C.F.R. §§ 4.20, 4.27, 4.71a, Diagnostic Code 5024 (tenosynovitis). Tenosynovitis is rated on limitation of motion of the affected parts, as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5024. Degenerative arthritis established by X-ray findings are rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, an evaluation of 10 percent is applied for each major joint or group of minor joints affected by limitation of motion. In the absence of limitation of motion, a 10 percent evaluation will be assigned where there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups. With any form of arthritis, painful motion is an important factor. It is the intention of the rating schedule to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. A compensable evaluation under Diagnostic Code 5003 and 38 C.F.R. § 4.59 (for painful motion) is in order where arthritis is established by X-ray findings and no actual limitation of motion of the affected joint is demonstrated. Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Where compensable limitation of motion is demonstrated in the joint, the Lichtenfels rule is not applicable. The Veteran's affected body part is the left ankle. Under Diagnostic Code 5271, a 10 percent evaluation is assigned for a moderate limitation of ankle motion, and a 20 percent evaluation is assigned for a marked limitation of ankle motion. 38 C.F.R. § 4.71a, Diagnostic Code 5271. Normal range of ankle motion is dorsiflexion to 20 degrees and plantar flexion to 45 degrees. 38 C.F.R. § 4.71, Plate II. In every instance where the schedule does not provide a noncompensable evaluation for a diagnostic code, a noncompensable evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The terms "mild," "moderate," "moderately severe" and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The use of terminology such as "mild" or "moderate" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Board finds that entitlement to a rating in excess of 10 percent is not warranted from July 13, 1994 to March 19, 2010. Simply put, the probative and objective medical evidence for the period in question preponderates against finding that the Veteran suffered from a marked limitation of left ankle motion such as to warrant a 20 percent rating. In this regard, service medical records describe the Veteran's complaints of pain and swelling in his left ankle that was diagnosed as tendinitis. When examined by VA on July 13, 1994, he had difficulty performing some left ankle movements and walked with a limp that favored his left lower extremity, but there was no ankle swelling or abnormality. Range of motion of the left ankle was dorsiflexion to 0 degrees and plantar flexion to 44 degrees. The Veteran was somewhat cautious in performing the movements. There was tenderness on palpation of the left Achilles tendon. X-rays of the left ankle were negative. The VA examiner indicated in an August 1994 note that the Veteran experienced remission and exacerbation of his disability but was not totally disabled by any means. During the April 2003 VA examination, the Veteran walked normally with a steady gait. Left tendoachilles muscle strength was 4/5. His gait was normal and steady and he had weekly painful flare ups of ankle pain. Range of left ankle motion was dorsiflexion to 10 degrees and plantar flexion to 30 degrees, and the examiner said that the Veteran had a loss of a bit of dorsiflexion and plantar flexion in comparison to his right ankle. There were no neurological problems or muscle wasting. There was some point tenderness near the insertion of the tendoachilles on the left. The VA examiner commented that the Veteran's disability was moderate in intensity and interfered with his activities of daily living and employability. When seen in the VA outpatient clinic for complaints of left ankle pain, in September 2003, there was no swelling or tenderness in the Veteran's left ankle and he demonstrated a normal range of left ankle motion. In September 2007, VA clinical findings show that the Veteran had full range of left ankle motion with mild point tenderness, and in April 2008, he was found to have limited motion due to pain. A May 2008 clinical note by a VA physical therapist shows no left ankle swelling with good strength. Range of motion of the left ankle at that time was plantar flexion to 45 degrees, dorsiflexion to -5 degrees, inversion to 30 degrees and eversion to 25 degrees. The VA outpatient records added to the claims file show the Veteran's symptoms have remained essentially consistent. A January 2010 entry notes complaints of chronic left ankle pain, use of Ibuprofen as needed, with some relief, and that the Veteran had undergone physical therapy, which he reported did not help. Examination revealed no clubbing, cyanosis, edema, or swelling. Limitation of motion with pain and mild tenderness inlateral malleoli area were noted. The Veteran's nonservice connected obesity was noted to be a significant component of his symptoms, but he declined referral to a nutritionist, stating that there was one at the gym where he exercised. The evidence of record shows the Veteran's chronic symptoms to be pain and limitation of motion, but in the absence of objective symptoms such as a greater loss of motion, or swelling, or edema the current evidence is not commensurate with finding a marked limitation of motion such as to warrant a 20 percent rating under Diagnostic Code 5271. 38 C.F.R. § 4.71a. In this regard, while the appellant showed an inability to dorsiflex the left ankle in July 1994, his left ankle had almost full plantar flexion. Unlike knee disorders which may be assigned separate ratings for limitations in each plane of movement, VA's rating schedule only permits the assignment of a single rating based on limitation of motion. As such, the single evaluation assigned to rate any limitation of left ankle motion must consider the motion in all planes of movement. Here, the evidence preponderates in favor of concluding that the total disability caused by limitation of ankle motion was not more than moderate. A similar conclusion must be reached when looking at the other range of motion findings, to include dorsiflexion, recorded prior to March 2010. In April 2003, dorsiflexion was to 10 degrees and plantar flexion was to 30 degrees. In September 2003 and September 2007, the Veteran demonstrated a full range of left ankle motion. While pain was noted to limit left ankle motion in April 2008 and January 2010, the exact degree of that limitation was not recorded. In May 2008, dorsiflexion was limited to 5 degrees, but once again plantar flexion was full to 45 degrees. Simply put, even when considering the appellant's limited dorsiflexion, the evidence shows that at no time during the appellate term was the combined impact of any limitation of left ankle motion greater than moderate. As such, entitlement to an increased rating for left Achilles tendonitis with spur is not warranted for the period between July 13, 1994 to March 19, 2010. In reaching this decision the Board finds that the assigned 10 percent rating reasonably compensates the Veteran for his functional loss due to his symptomatology during this term. See 38 C.F.R. § 4.1. The evidence of record further shows the Veteran did not have malunion or nonunion of the tibia and fibula, ankylosis of the ankle, ankylosis of subastragalar or tarsal joint, or malunion of the os calcis or astragalus. Therefore, Diagnostic Codes 5262, 5270, 5272, 5273, and 5274 are not applicable. See 38 C.F.R. § 4.71a, Diagnostic Codes 5262, 5270, 5272, 5273, 5274 (2012). Nor was there medical evidence of a moderate foot injury such as to warrant a 10 percent evaluation under Diagnostic Code 5284 (relating to other foot injuries), let alone moderately severe residuals of a foot injury to warrant a 20 percent rating under this diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Code 5284 (2012). As discussed earlier in this decision, with regard to establishing loss of function due to pain, it is necessary that complaints be supported by adequate pathology and be evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40. The Board finds that the effects of pain reasonably shown to be associated with the Veteran's service-connected left ankle disability are contemplated in the assigned 10 percent rating during the appellate term. There is no indication that pain, due to disability of the left ankle, caused any functional loss greater than that contemplated by the assigned evaluations. 38 C.F.R. § 4.40, 4.45; DeLuca. Accordingly, the objective medical evidence of record preponderates against the assignment of an initial rating in excess of 10 percent for left Achilles tendinitis with a spur from July 13, 1994, to March 19, 2010. 38 U.S.C.A. § 5107. The Board considered whether the Veteran is entitled to a "staged" rating for his service-connected left Achilles tendinitis with a spur. The evidence shows that at no time during the appellate term in question has his left ankle disability been more disabling than currently rated under the present decision of the Board. Referral for Extraschedular Consideration In exceptional cases, where the rating schedule is deemed inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the applicable criteria, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. 38 C.F.R. § 3.321(b)(1). The Board is precluded from granting an increased rating on an extraschedular basis in the first instance. 38 C.F.R. § 3.321(b)(1); Floyd v. Brown, 9 Vet. App. 88, 95 (1996). The Board may, however, determine whether a particular claim merits submission for an extraschedular evaluation. Brannon v. West, 12 Vet. App. 32, 35 (1998). Further, where the RO has considered the issue of an extraschedular rating and determined it inapplicable, the Board is not specifically precluded from affirming a RO conclusion that a claim does not meet the criteria for submission pursuant to 38 C.F.R. § 3.321(b)(1) for an extraschedular rating. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). The representative argued in the February 2011 brief that the Veteran merits entitlement to extraschedular consideration because of the ankle disorder's impact on employment. A statement from the Veteran's employer was submitted in support of the assertions. As required by the applicable regulation, however, before the impact on employment is considered, there must first be a determination that the Veteran's disability picture is exceptional. If that criterion is not met, the analysis goes no further. See Thun v. Peake, 22 Vet. App. 111 (2008). To determine if a disability picture is exceptional, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Id., 22 Vet. App. 11. The evidence of record shows that the very symptoms manifested by the Veteran's left ankle disability and discussed above are included in the schedular rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. This indicates the rating criteria considered in this case reasonably describe the Veteran's disability level and symptomatology, which means his left ankle disability picture is contemplated by the rating schedule. Hence, the rating schedule is adequate to address the degree of the Veteran's disability. There is nothing in the record to distinguish this case from the cases of numerous other veterans who are subject to the schedular rating criteria for the same disability. Thus, in the absence of an exceptional disability picture, the Board finds the criteria for submission for consideration of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met for the period from July 13, 1994, to March 19, 2010. In reaching this decision the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the Veteran's claim, however, the doctrine is not for application. Schoolman v. West, 12 Vet. App. 307, 311 (1999). ORDER Entitlement to a rating in excess of 10 percent for left Achilles tendinitis with a spur, from July 13, 1994, to March 19, 2010 is denied. REMAND In a March 2010 rating decision the Atlanta RO denied entitlement to service connection for left and right knee degenerative arthritis. In December 2010, the appellant filed a timely notice of disagreement. The RO has not, however, issued a statement of the case on this matter. Thus, a remand is necessary to correct this procedural deficiency before these issues can be adjudicated by the Board. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 19.26, 19.29, 19.30 (2012); Manlincon v. West, 12 Vet. App. 238 (1999). On remand, the appellant will have the opportunity to file a timely substantive appeal if he wishes to complete an appeal as to this matter. Finally, it has been several years since the appellant's left ankle disorder has been formally examined. Given the appellant's continuing complaints of increased left ankle pain and disability, the Board finds that a contemporaneous examination is in order. Accordingly, the case is REMANDED for the following action: 1. Issue a statement of the case addressing the issues of entitlement to service connection for degenerative arthritis of the right and left knees, to include secondary to left Achilles tendinitis with a spur. The appellant is hereby notified that, following the receipt of the statement of the case concerning these issues, a timely substantive appeal must be filed if appellate review by the Board is desired. If, and only if, a timely substantive appeal is filed, should these issues be returned to the Board for appellate review. 2. Schedule the Veteran for an examination to evaluate the nature and extent of his left Achilles tendinitis with a spur. The claims folder and access to Virtual VA must be made available to the examiner. All indicated tests and studies should be conducted and clinical findings should be reported in detail. In addition to completing the disability benefits questionnaire pertaining to these disorders, range of motion studies must be conducted using a goniometer. A complete rationale must be provided for any opinion offered. 3. After the development requested has been completed, the RO should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. The AMC/RO must ensure that the examining physician documented their consideration of Virtual VA. If any report is deficient in any manner, the RO must implement corrective procedures at once. 4. The Veteran is to be notified that it is his responsibility to report for the examinations and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examinations, documentation should be obtained which shows that notice scheduling the examinations was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 5. After taking any further development deemed appropriate, readjudicate the claim. If the benefit is not granted, issue a supplemental statement of the case before returning the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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. 2012). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs