Citation Nr: 1330790 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 12-34 552 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES Entitlement to an increased initial evaluation for right Achilles calcific tendonitis, rated as 20 percent disabling prior to September 17, 2011, and currently rated as 30 percent disabling from September 17, 2011. ATTORNEY FOR THE BOARD M. Espinoza, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1975 to May 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. During the pendency of the appeal, a rating decision in August 2012 granted a 30 percent rating for right Achilles calcific tendonitis, effective from September 17, 2011. Because less than the maximum available benefit for a schedular rating was awarded and because the increase was not granted effective from the initial date that service connection was awarded, the issues, as described above, are properly before the Board. See Fenderson v. West, 12 Vet. App. 119 (1999); AB v. Brown, 6 Vet. App. 35 (1993). FINDINGS OF FACT 1. Prior to July 14, 2011, the Veteran's service-connected right Achilles calcific tendonitis was manifested by dorsiflexion of 10 degrees, plantar flexion of 10 degrees, and there was not any indication of abduction, adduction, inversion or eversion deformity. 2. From July 14, 2011, the Veteran's service-connected right Achilles calcific tendonitis is manifested by dorsiflexion between 0 degrees to 5 degrees, plantar flexion of 10 degrees, and there is not any indication of abduction, adduction, inversion or eversion deformity. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 20 percent, prior to July 14, 2011, for the Veteran's service-connected right Achilles calcific tendonitis were not met. 38 U.S.C.A. §§ 1155, 5107, 5110 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.321, 3.400, 4.1, 4.2, 4.3, 4.7, 4.21, 4.40, 4.45, 4.71a, DC 5270, 5271 (2012). 2. Effective July 14, 2011, the criteria for a disability evaluation of 30 percent for the Veteran's service-connected right Achilles calcific tendonitis were met. 38 U.S.C.A. §§ 1155, 5107, 5110 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.321, 3.400, 4.1, 4.2, 4.3, 4.7, 4.21, 4.40, 4.45, 4.71a, DC 5270, 5271 (2012). 3. The criteria for an evaluation in excess of 30 percent, from July 14, 2011, for the Veteran's service-connected right Achilles calcific tendonitis were not met. 38 U.S.C.A. §§ 1155, 5107, 5110 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.321, 3.400, 4.1, 4.2, 4.3, 4.7, 4.21, 4.40, 4.45, 4.71a, DC 5270, 5271 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2012). VA must inform the Veteran about the information and evidence that is necessary to substantiate the claim, the information and evidence that VA will seek to provide, and the information and evidence that the Veteran is expected to provide. 38 U.S.C.A. § 5103(a)(1); 38 C.F.R. § 3.159(b)(1). The appeal for a higher rating for right Achilles calcific tendonitis arose from a disagreement with the initial evaluation following the grant of service connection, a disability rating and an effective date, thus the May 2010 VCAA notice sent to the Veteran has served its purpose. See Dingess v. Nicholson, 19 Vet. App. 474, 490 (2006); Dunlap v. Nicholson, 21 Vet. App. 112, 177 (2007). VA satisfied the duty to assist the Veteran under the VCAA by gathering relevant records. VA has a duty to assist in obtaining the Veteran's service medical records, VA medical records and other relevant records. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c). The Veteran's service treatment records, private treatment records, and pertinent VA treatment records have been obtained and are in the claims file. Additionally, VA satisfied the duty to assist the Veteran by providing a medical examination to the Veteran. VA provided an initial examination to the Veteran in August 2010. In September 2011, VA provided an ankle examination and a joints examination in relation to the Veteran's disagreement with his initial rating for his service-connected right Achilles calcific tendonitis. The September 2011 VA examinations provided clinical findings necessary to determine if an increased rating for the Veteran's service-connected right Achilles calcific tendonitis was warranted in the context of the rating criteria. The Board finds the record as it stands includes adequate evidence to allow the Board to decide these matters. Additionally, the Veteran has not identified any relevant evidence that is outstanding. Thus, VA satisfied its duties to notify and assist the Veteran with his claim for an increased rating for his service-connected rheumatic heart disease. As such, appellate review may proceed without prejudice to the Veteran. II. Merits of the Claim The Veteran maintains that an increased rating is warranted for his service-connected right Achilles calcific tendonitis. The Veteran stated in his notice of disagreement, received by VA in January 2011, that his condition warrants a higher rating based on swelling, pain, and the impact of his disability on the quality of life. He further stated that he cannot work overtime and thus his income is limited. Disability evaluations are determined by comparing a veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating will be assigned 38 C.F.R. § 4.7 (2012). It is not expected that, in all cases, all will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability there from and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2012). All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3 (2012). In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). From the one year period prior to the claim filing, VA must consider whether to "stage" the rating, meaning assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others. Consideration of the appropriateness of a staged rating is required for increased rating claims, irrespective of whether it is an initial rating at issue or instead an established rating. See Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2008). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 38 C.F.R. § 4.40 (2012). It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. Id. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 (2012) must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, 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). Once the maximum rating for limitation of motion for the given joint is reached, § 4.40 and § 4.45 do not provide for a higher rating due to pain. Id. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system, pain in a particular joint may result in functional loss, but only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011) (explaining what can constitute functional loss via application of § 4.40 and § 4.45). Diseases of musculoskeletal system are rated under the under the Schedule of ratings-musculoskeletal system (schedule) found at 38 C.F.R. § 4.71a (2012). The schedule for DC 5270 provides that an evaluation of 30 percent rating is warranted when ankylosis of the ankle in plantar flexion is between 30 degrees and 40 degrees or when dorsiflexion is between 0 degrees to 10 degrees. Id. A 40 percent rating is warranted when the ankylosis of the ankle in plantar flexion is at more than 40 degrees or in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion or eversion deformity. Id. First, the Board addresses whether a rating in excess of 20 percent is warranted for the period prior to September 17, 2011. In order to obtain a higher rating for the right Achilles calcific tendonitis, the evidence must show that the Veteran had ankylosis in the above described degrees for a 30 percent or 40 percent rating. The two relevant records are the August 2010 VA examination and a July 2011 private medical record, because those are the two records that measure the disability in the context of the rating criteria. The July 2011 private medical record yields a finding of about 5 degrees of dorsiflexion, and 10 degrees plantar flexion. The 5 degrees of dorsiflexion does satisfy the 30 percent rating standard of dorsiflexion between 0 degree and 10 degrees. However, the July 2011 private medical record does not show the Veteran satisfies the 40 percent rating category in terms of the degrees of plantar flexion or dorsiflexion necessary nor does he have any indication abduction, adduction, inversion or eversion deformity. The July 2011 private medical record is dated before the September 17, 2011 effective date assigned from the August 2012 rating decision. Thus, the Board finds that the Veteran is entitled to a 30 percent rating as of July 14, 2011, the date of the private medical record, as this date more nearly approximates when the disability increased in severity. However, the right Achilles calcific tendonitis, for the period prior to July 14, 2011, is still manifested by the disability at the 20 percent rating category and an evaluation in excess of 20 percent for that period is not warranted. The August 2010 VA examination shows plantar flexion of 10 degrees and dorsiflexion of 10 degrees, and neither meet the standard necessary for the 30 percent or 40 percent rating. Nor does the August 2010 VA examination provide any indication that the Veteran had abduction, adduction, inversion or eversion deformity necessary to satisfy the 40 percent rating. In the August 2010 examination, the examiner noted that Veteran had range of motion with plantar flexion of 10 degrees, dorsiflexion of 10 degrees, and eversion and inversion to 10 degrees, all with pain throughout. The examiner did not indicate that the pain caused any additional limitation in the range of motion, thus the evidence is against a higher rating based on DeLuca. The August 2010 examination does not show a rating in excess of 20 percent is warranted for the period prior to July 14, 2011. Therefore, the evidence of record does not show a rating in excess of 20 percent is warranted for the period prior to July 14, 2011. Having determined that the criteria for a 30 percent rating for the right Achilles calcific tendonitis was met as of July 14, 2011, but not prior to that date, the Board turns to a discussion as to whether a rating higher than 30 percent was warranted after the assignment of the higher rating. As mentioned above, in order to obtain the highest rating of 40 percent under the schedule, the evidence must show that the Veteran has 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. The September 2011 joint and ankle examinations both show that the Veteran's right ankle plantar flexion is 10 degrees and his dorsiflexion is 0 degrees. This is also restated in the addendum to the examinations dated October 2011. Neither the dorsiflexion nor the plantar flexion results satisfies the standard necessary to rise to the higher 40 percent rating category. Additionally, the September 2011 examinations do not mention any abduction, adduction, inversion or eversion deformity which would also satisfy the standard for the 40 percent rating category. In the September 2011 joint and ankle examinations, the examiner provided findings that addressed 38 C.F.R. § 4.40 and § 4.45, the regulations to which DeLuca refers. Although the examiner indicated, in the September 2011 examinations, that repetitive motion caused weakened movement, excess fatigability, pain on movement, swelling, disturbance of locomotion and interference with sitting, standing and weight-bearing, he also noted that there was no additional limitation in range of motion for the right ankle following repetitive-use testing. This is evidence against assigning a higher rating based on DeLuca because the objective evidence shows that the Veteran did not have any of the functional loss referred to in § 4.40 or § 4.45 as explained by the Veterans Court in Mitchell. Finally, the Veteran and his spouse both reported, in March 2012 statements, that the Veteran had difficulty standing the longer periods required to work overtime, climbing stairs, playing sports with his children, and engaging in certain activities, such as powerwalking, biking and hiking. These reports are consistent with the range of motion measured on examination as it is reasonable to conclude that such activities would be difficult to engage in with 0 degrees of dorsiflexion as measured by the 30 percent rating category. That is, these reports do not show functional loss more than what was shown by the measured range of motion and observation of the Veteran during the examinations. The Board concludes that these reports are unfavorable to a finding that any of the reported pain, weakness, fatigue and lack of endurance resulted in limitation of function beyond that which was found by measurement of his range of motion. The evidence, from July 14, 2011, does not show that the ankylosis manifestations of the Veteran's right ankle approximate the criteria for a rating higher than the 30 percent already assigned. Thus, the preponderance of evidence is against assigning a rating higher than 30 percent for orthopedic manifestations of the Veteran's service connected right Achilles calcific tendonitis after July 14, 2011. Also considered by the Board, is whether referral is warranted for a rating outside of the schedule. To accord justice in an exceptional case where the schedular standards are found to be inadequate the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b) (2012). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. Id. Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, the Board or the RO must determine whether the schedular criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. Here, the manifestations of the Veteran's right Achilles calcific tendonitis are contemplated, both in kind and severity, by the schedular criteria. The schedule, found at 38 C.F.R. § 4.71a, provides for ratings based on the plantar flexion and dorsiflexion degrees and evidence of abduction, adduction, inversion or eversion deformity. Here, the Veteran has experienced 0 degrees of dorsiflexion. The schedule provides for ratings higher than what has been assigned, if dorsiflexion is at more than 10 degrees. Similarly, higher ratings are available if the Veteran's condition results in higher degrees of plantar flexion. While the Board notes the Veteran has asserted he cannot work overtime, he is still able to work regular hours. The fact that the Veteran cannot work overtime does not constitute marked interference with employment. This is because the extra-schedular criteria does not contemplate or require a calculation of the income that may not have been realized because of a service-connected disability. Id. at 117. Thus, greater disability than that suffered by the Veteran is addressed by the schedular criteria and the Veteran's current symptoms are contemplated by the rating schedule. Referral for consideration of an extraschedular rating is not warranted. For the foregoing reasons, the Board finds that the Veteran's claim for higher initial rating for right Achilles calcific tendonitis should be granted in the context of a staged rating with a 30 percent rating effective July 14, 2011. In reaching this conclusion, the Board has applied the benefit-of-the-doubt doctrine. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence is against a rating in excess of 30 percent after July 14, 2011. ORDER 1. Entitlement to an evaluation, prior to July 14, 2011, in excess of 20 percent for right Achilles calcific tendonitis is denied. 2. Entitlement to a 30 percent evaluation, but not higher, for right Achilles calcific tendonitis is granted, effective July 14, 2011, subject to the laws and regulations governing the payment of monetary awards. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs