Citation Nr: 1332256 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 09-20 525 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi THE ISSUE Entitlement to a rating in excess of 10 percent for right Achilles tendonitis. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran had active military service from March 1976 to September 1977. This appeal comes to the Board of Veterans' Appeals (Board) from a July 2008 rating decision. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. FINDING OF FACT The Veteran's right Achilles tendonitis has been manifested by marked limitation of motion, pain, instability, and weakness in his right ankle throughout the pendency of this claim. CONCLUSION OF LAW The criteria for a 20 percent rating for right Achilles tendonitis have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3, and 4.71a, Diagnostic Codes (DCs) 5024, 5270-5274 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In this case, the Veteran is seeking a rating in excess of 10 percent for his right Achilles tendonitis. His disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5024 for arthritis which directs that arthritis, established by X-ray findings, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 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. Put in layman's terms, arthritis, or in this case tendonitis, is to be rated based on the limitation of motion it causes on the service connected joint, and only if a noncompensable rating is found is a 10 percent rating be assigned based on 38 C.F.R. § 4.59 and 4.71a, Diagnostic Code 5003. Here, the Veteran is already rated at 10 percent, and therefore the Board will focus solely on whether the limitation of motion in the Veteran's right ankle is sufficient to warrant a higher rating. Diagnostic Code 5271 governs the range of motion of an ankle, and provides that a 10 percent rating is assigned for moderate limited motion and a 20 percent rating is assigned for marked limited motion. See 38 C.F.R. § 4.71a, Diagnostic Code 5271. The Board notes that words such as "moderate" and "marked" 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. However, the Schedule for Rating Disabilities provides some guidance by defining full range of motion of the ankle as being dorsiflexion from 0 to 20 degrees and plantar flexion from 0 to 45 degrees. See 38 C.F.R. § 4.71a, Plate II. The Veteran's claim seeking an increase was received in February 2008, and he has consistently asserted through the course of his appeal that his service connected right Achilles tendonitis had worsened over the years. As will be discussed, the Veteran has consistently demonstrated limitation of motion with pain, and it is clear that the pain is frequent with use. As such, the Board will resolve reasonable doubt in the Veteran's favor and conclude that his right Achilles tendonitis has caused marked limitation of motion of his right ankle for the duration of his appeal, thereby warranting a 20 percent rating. In July 2008, the Veteran underwent a VA examination at which he reported pain of 3/5 in the right ankle that he treated with ibuprofen which provided some relief. He used a cane in the left hand secondary to ankle and back disabilities, but did not use any orthotics or arch supports. He was able to walk half a mile before stopping. Flare-ups of the right ankle were caused by walking, overuse, or squatting down. He stated that his ankle affected his activities of daily living in that it caused him to take a longer amount of time to complete tasks because of pain and stiffness. The Veteran had been unemployed since 1995 secondary to a brain aneurism. He believed that if he could work, his ankle would prevent him from walking for prolonged periods of time. An examination of the right ankle was conducted (it appears in this regard that the examiner made a typo in that he stated that range of motion of the left ankle was conducted, but the remainder of the examination report consistently refers to right ankle problems, including a statement that there was mild pain with range of motion testing in the right ankle, yet there were no results of any range of motion testing of the left ankle. As such, the Board is satisfied that the examiner's reference to the left ankle was simply an error, and that the range of motion results were for the right ankle.) The examiner indicated that the range of motion, presumably of the right ankle, was 0-10 degrees of dorsiflexion and 0-30 degrees of plantar flexion. The Veteran experienced pain with motion of his ankle, but the pain was felt to be mild and did not increase with repetitive motion testing. The Veteran was able to do a straight leg toe raise on the right, and had no abnormal areas of skin that would suggest abnormal weight bearing. The Veteran had full sensation to light touch in all dermatones. X-rays showed good overall maintenance of joint spaces and no fractures, dislocations, or other boney abnormalities. There were also no significant signs of arthrosis. The X-rays were interpreted as showing a normal ankle. The examiner diagnosed chronic, mild right Achilles tendonitis. He stated that pain was mild on range of motion testing, but conceivably could limit function after prolonged walking or stooping. In July 2008, the Veteran presented for treatment at the emergency room with concerns that he might have torn a ligament in his right foot or ankle. The medical professional observed that the Veteran's right Achilles tendon/heel was without deformity, there was no redness or swelling, and no tenderness on palpation. Right Achilles tendonitis was diagnosed. The Veteran was given a 3D boot to immobilize the ankle. In August 2008, the Veteran presented for treatment at VA stating that approximately two months earlier he had experienced increased tightness and pain in his right ankle, although at time of presentation, the pain was noted to be minimal. The medical professional found the active range of motion to be within functional limits, but with mild to moderate complaints of increased symptoms with testing. The medical professional indicated that the symptomatology on testing was indicative of recurring tendonitis. In his June 2009 substantive appeal, the Veteran alleged that his condition had increased in severity. In a November 2009 note, the Veteran's private doctor, Dr. Sands, indicated that the Veteran had reported his tendonitis was getting worse. In November 2009, the Veteran testified at a hearing before the RO. He stated that he felt his foot condition had worsened over the previous three decades and indicated that walking aggravated his foot. The Veteran stated that he did exercises approximately twice a day to stretch the tendon. A second VA examination was provided in December 2009. The Veteran reported pain that was 3/10 in his ankle. He continued to use a cane which helped moderately, but he did not have any shoe insert or prescription shoes. The Veteran stated that he could walk 30 minutes or 1-2 blocks, without having to stop. He stated that prolonged usage, straining, and/or prolonged walking caused increased pain. The Veteran had in the past taken medication and done physical therapy for his ankle. He asserted that his ankle affected his activities of daily living as he experienced pain with normal standing and walking. On examination, the Veteran demonstrated dorsiflexion from 0-10 degrees, with pain throughout the entire arch of dorsiflexion. He had plantar flexion from 0-30 degrees with pain only at the extreme. He was non-tender over his medial and lateral malleoli, had negative talar tilt, and had negative anterior drawer testing. There was no change in range of motion with repetitive motion times three. The examiner found no abnormalities of the toes, and no calluses or evidence of abnormal weight bearing. The Veteran maintained good arch in both the seated and standing position. There was tenderness over the insertion of his Achilles tendon and proximally for approximately 5 cm. The Veteran had full sensation. X-rays showed well maintained joint spaces with no fractures, dislocations, or other boney abnormalities. The examiner diagnosed the Veteran with mild right Achilles tendonitis. The examiner allowed that it was possible that the Veteran's pain could be worsened by certain repetitive activities. As described the Veteran has consistently shown that the dorsiflexion of his right ankle was limited to 0-10 degrees. That is, the range of motion is limited to half of what would be seen in a normal ankle. Moreover, there was consistent pain in the ankle, and the Veteran credibly testified and related to medical professionals that as he increased the use of his right ankle the pain increased. While range of motion was not shown to decrease after repetitive motion testing in a clinical setting, both examiners did acknowledge that extended use, beyond what could be tested in an examination setting, could trigger flare-ups that would further restrict motion. This is precisely what the Veteran has credibly described, having asserted that any extended activity greatly increased the pain in his right ankle and further restricted the motion of that joint. As such, the Board concludes that the right Achilles tendonitis pain is sufficient in the Veteran's case to cause marked limitation of motion and for that reason, a 20 percent rating is granted. In determining whether an evaluation in excess of 20 percent is in order, the Board has also considered, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). Indeed, these factors led to the higher 20 percent rating being assigned in this case. However, where, as here, a musculoskeletal disability is evaluated at the highest schedular evaluation available based upon limitation of motion, a higher rating under 38 C.F.R. §§ 4.40, 4.45, and 4.59 is not warranted. See Johnston v. Brown, 10 Vet. App. 80 (1997). In this case, the Veteran has been assigned the maximum schedular evaluation under Diagnostic Code 5271. As such, since there is no applicable diagnostic code which provides an evaluation in excess of 20 percent for limitation of motion of the ankle, consideration of 38 C.F.R. §§ 4.40, 4.45, and 4.59 as a basis to award a rating higher than 20 percent is not in order and cannot be utilized to grant an increased disability rating in this case. Ankle ratings may also be assigned for ankylosis or other ankle deformities. However, here there is no evidence showing that the Veteran has ankylosis of the right ankle, ankylosis of the subastragalar or tarsal joint, malunion of the os calcis or astragalus, or astragectomy. Neither the Veteran, nor his representative, have disputed such a conclusion. Therefore, Diagnostic Codes 5270, 5272, 5273, and 5274 are not for application. The Board has also considered whether referral for consideration of an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. This means that initially 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. 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 adequate, and no referral is required. If the criteria do not reasonably describe the claimant's disability level and symptomatology, a determination must be made whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). See id. However, in this case, the medical evidence fails to show anything unique or unusual about the Veteran's right Achilles tendonitis that would render the schedular criteria inadequate. The Veteran's main symptoms are pain and limitation of motion which were specifically taken into consideration in granting the increased schedular rating. As such, the schedular rating criteria reasonably describe the claimant's disability level and symptomatology, and a referral for consideration of an extraschedular rating is not warranted. The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. The Board acknowledges that the Veteran is no longer employed. He has not, however, alleged that he is unemployable on account of his right Achilles tendonitis, only suggesting that if he were able to work his ankle might cause some impairment. Thus, the Board finds that Rice is inapplicable since there is no evidence of unemployability due to the Veteran's service connected right Achilles tendonitis. II. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in June 2008, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. The letter also informed the Veteran how disability ratings and effective dates were established. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Private treatment records, VA treatment records and Social Security Administration (SSA) records have all been obtained, and the Veteran has not identified any relevant evidence that is not of record. Additionally, the Veteran testified at a hearing before the RO and was offered the opportunity to testify at a hearing before the Board, but he declined. The Veteran was also provided with two VA examinations of his right ankle (the reports of which have been associated with the claims file). The Board finds the examinations were thorough and adequate and provide a sound basis upon which to base a decision with regard to the Veteran's claim. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability. As discussed above, the Board observed that one of the VA examiners mistakenly wrote "left" instead of "right" in describing the range of motion that was measured at the examination. However, a plain reading of the examination report, and particularly the examiner's concluding statements, made it clear that this was no more than a typo, and it is wholly evident that the range of motion of the right ankle was measured at the VA examination. Moreover, a subsequent VA examination reported similar range of motion findings, giving additional weight to the conclusion that it was the Veteran's right ankle that was examined at the July 2008 VA examination. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER A 20 percent rating for right Achilles tendonitis is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs