Citation Nr: 18149513 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 11-30 263 DATE: November 9, 2018 ORDER Entitlement to an initial 20 percent rating for right foot posterior tibial tendonitis with osteoarthritis is granted. FINDING OF FACT The Veteran’s right foot posterior tibial tendonitis with osteoarthritis is manifested by chronic pain, limitation of motion, functional impairment due to pain, and instability, analogous to marked limitation of motion, but no ankylosis or malunion or nonunion of the tibia or fibula. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for an initial 20 percent rating for right foot posterior tibial tendonitis with osteoarthritis have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5010, 5271. REASONS AND BASES FOR FINDING AND CONCLUSION Entitlement to an initial rating in excess of 10 percent for right foot posterior tibial tendonitis with osteoarthritis. The Veteran had active service from May 1987 to December 2009. In November 2016 and in August 2017, the Board remanded this matter for further development. The Veteran contends that she should be entitled to a higher initial rating for her service-connected right foot posterior tibial tendonitis with osteoarthritis. Disability evaluations are determined by application of the VA Schedule for Rating Disabilities, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history and there is emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.1. Examination reports are 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. When an increase in a disability rating is at issue, it is the present level of the disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are also appropriate when the factual findings show distinct time periods in which the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 506 (2007), The Veteran’s service-connected right foot posterior tibial tendonitis with osteoarthritis has been assigned an initial 10 percent rating pursuant to Diagnostic Code (DC) 5271, which provides a 10 percent disability rating for moderate limitation of motion. A 20 percent rating contemplates marked limitation of motion. 38 C.F.R. § 4.71a, DC 5271. The Board notes that marked and moderate are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Normal ranges of motion for the ankle are 0 to 20 degrees of dorsiflexion and 0 to 45 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II. On a VA examination in November 2009, the Veteran reported having constant foot pain, at level 9 out of 10, that was exacerbated by physical activity, walking, and running. She reported that at rest she had pain and stiffness and that while standing or walking she also had weakness, swelling, and fatigue. Examination of the right ankle revealed no signs of edema, instability, abnormal movement, effusion, weakness, tenderness, redness, heat, deformity, malalignment, drainage, subluxation, or guarding of movement. Range of right ankle motion testing was normal, without pain. Repetitive range of motion testing was possible, with no additional loss of motion or functional loss. In a February 2011 statement, the Veteran reported that she experiences right foot pain when walking, popping in the foot on movement, and minimal swelling. She reported she had to wear a CAM (Controlled Ankle Movement) walker at night and during the day, and that she could not drive with the CAM walker. On a VA examination in December 2011, the diagnoses included right foot posterior tibial tendonitis with osteoarthritis. The Veteran denied ankle pain but reported having pain to the posterior tibial tendon of the right foot which interfered with mobility of the foot and ankle. It was noted that she wore a right hard CAM boot daily and a right soft CAM boot nightly. She described that during flare-ups she was not able to run and had pain and swelling (and had to wear compression socks), but that she was not able to do a lot of walking and was not able to wear high heels but wore sneakers (flat shoes) because of pain and swelling. She had difficulty standing on the affected extremity for a long period time (15 minutes), and reported the pain was worse upon initial standing, and she was not able to stop the burning sensation in the foot, but that wearing compression socks sometimes helped the burning and swelling. Range of motion testing revealed right ankle plantar flexion was to 35 degrees with pain, and right ankle dorsiflexion was to 15 degrees with pain. She was able to perform repetitive use testing, with no additional loss of function or motion. There was tenderness of the ankle on palpation. Muscle strength of the right ankle was slightly reduced on motion. Joint stability testing revealed no laxity in the right ankle. The examiner opined that the Veteran’s ankle condition impacted his ability to work, including due to pain, decreased mobility, and problems with lifting/carrying. On a VA examination in February 2015, the Veteran exhibited normal range of right ankle motion with no pain, and no evidence of pain with weight bearing, or tenderness. She performed three repetitions of ankle motion, with no additional loss of function or motion. She reported having flare-ups, 3 times over the last year, which were severe and resulted in swelling, and lasted for a week. The examiner opined that pain, weakness, fatigability, and incoordination, did not significantly limit functional ability during flare-ups. There was no reduction in right ankle muscle strength on motion and no atrophy noted. Right ankle instability/dislocation was not suspected. The examiner opined that her ankle condition did not impact her ability to work. VA treatment records showed that in April 2016, the Veteran was seen for follow-up on chronic bilateral ankle pain and instability. She reported that, despite conservative treatment, the pain had continued and progressively worsened since her discharge. Despite this, she still tried to exercise actively and hoped that this will help with the circulation and the pain, but the pain persisted. Objective examination showed mild crepitus on range of motion and significant pain on lateral compression. The assessment included bilateral chronic ankle pain with ankle instability, symptomatic. On a VA examination in July 2016, the Veteran reported flare-ups that impacted the function of the ankle, described as the right foot cramping and remaining locked, and when attempting to stand, the right foot twisted and caused a fall. She reported intermittent ankle swelling, noting the ankle rolled at times, and her ankle was painful with standing and worsened with walking. She reported morning ankle stiffness. She used pain and anti-inflammatory medication, but no brace. She reported her ankle slowed her down and gave way at times. She reported a recent incident where she stood up to walk, her ankle rolled, and she was treated for ankle sprain. Examination revealed full range of ankle motion, with pain on motion, but the pain did not result in or cause functional loss. She was able to perform repetitive use testing with no additional loss of function or motion. The examiner was unable to opine without speculation whether functional ability was further limited during flare-ups or with repeated use. There was no reduction in right ankle muscle strength on motion. Right ankle instability/dislocation was suspected, but no laxity was shown on objective testing. The examiner opined that the Veteran’s ankle condition did not impact her ability to work. VA treatment records showed that in August 2016, the Veteran for reports of bilateral ankle, heel, and foot neuropathic pain. She had significant pain on range of motion of both feet. The assessment included bilateral ankle instability. On a VA examination in December 2016, the Veteran reported chronic sharp pain of the ankle and instability, with episodes of falling, in the last 12 months. She reported that in January or February 2016, she rolled her ankle after standing up and taking a step, causing a severe sprain, after which she had to wear an air cast for two weeks and lost 1-2 days of work. She reported flare-ups described as chronic sharp pain of the ankles, radiating up the calves, and ankle instability with falling. Examination showed full right ankle dorsiflexion and plantar flexion limited to 30 degrees. There was objective evidence of painful motion, and pain caused functional loss. There was no evidence of pain with weight bearing, but there was tenderness on palpation of the ankle joints and objective evidence of crepitus. She was able to perform repetitive use testing with no additional loss of function or range of motion. The examiner was unable to provide an opinion, without speculation, as to whether functional ability was further limited during flare-ups or with repeated use over time. Additional factors of disability included increased difficulty with prolonged standing, walking, running, and climbing stairs/ladders. There was no reduction in muscle strength on motion. Right ankle instability/dislocation was suspected, but no laxity shown on objective testing. The examiner opined that the Veteran’s ankle condition impacted her ability to work, noting she had increased difficulty with prolonged standing, walking, climbing stairs or ladders, and running, but she used annual/sick leave and there was no job endangerment. It was also noted there was pain on passive range of ankle motion and when the ankle joint was used in non-weight bearing, On a VA examination in September 2017, the Veteran reported worsening of her right ankle disability due to daily pain. She denied flare-ups, but reported functional impairment including her right foot staying cramped and not being able to walk, and when driving having to stop. She reported problems with standing, running, and walking long distances. Examination showed right ankle dorsiflexion limited to 11 degrees and flexion to 20 degrees. She also experienced limited standing and walking, and pain which caused functional loss. There was objective evidence of painful motion, as well as pain with weight bearing and tenderness on palpation of the ankle joint. She was unable to perform repetitive use testing due to severe pain, and had reduction in muscle strength with movement, but no evidence of atrophy. The examiner was unable to provide an opinion, without speculation, as to whether functional ability was limited with repeated use over time. Right ankle instability or dislocation was suspected, but testing for laxity was not possible. The examiner opined that her right ankle disability impacted her ability to work, noting that she was limited in lifting, carrying, standing, and walking. It was also noted that all maneuvers were painful on non-weight-bearing active and passive range of motion. She was unable to perform weight-bearing active or passive range of right ankle due to the safety factor and ankle instability. The Veteran’s overall disability picture for her service-connected right foot posterior tibial tendonitis with osteoarthritis more closely approximates the criteria for a 20 percent rating for marked limitation of motion under DC 5271. The medical history of her feet has been complex, and additional symptoms attributed to her right foot have been encompassed in disability ratings assigned for her service-connected bilateral pes planus, plantar fasciitis, right heel spur, metatarsalgia, and pedal neuropathy. Accordingly, review of the record, including VA treatment records and VA examinations, show that her right foot posterior tibial tendonitis with osteoarthritis has primarily been manifested by chronic pain, as well as at varying times, limitation of motion, pain on motion, stiffness, tenderness on palpation, crepitus, swelling, slight reduction in muscle strength, and instability and giving way of the ankle, which caused her to fall on occasion. The examiners in 2015 and 2016 were unable to opine as whether her functional ability was further limited during flare-ups or with repeated use, but have nonetheless noted that she was functionally limited due to her right ankle because of pain on motion, and with standing, walking, running, and climbing stairs, and limitations on mobility because her ankle gave way sometimes. Further, even though VA examinations prior to 2017 showed that she was able to perform repetitive use testing of the right ankle without additional limitation, on the VA examination in 2017, she was unable to perform such testing due to severe pain. In considering the functional loss due to chronic pain, limited motion, and instability of the right foot, and resolving all reasonable doubt in her favor, the Board finds that the criteria for a 20 percent rating under DC 5271, for marked limitation of motion, have been approximated. 38 C.F.R. §§ 4.7, 4.40, 4.45. As 20 percent is the maximum rating under DC 5271, the application of Correia v. McDonald, 28 Vet. App. 158 (2016) is essentially negated here. Moreover, a rating in excess of 20 percent is not warranted under other applicable diagnostic codes, as the record has not shown any ankylosis, or malunion/nonunion of the tibia/fibula. 38 C.F.R. § 4.71a, DCs 5262, 5270. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Casula, Counsel