Citation Nr: 18151871 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-41 723 DATE: November 20, 2018 ORDER Entitlement to a rating in excess of 10 percent for right ankle tendonitis is denied. Entitlement to a rating in excess of 10 percent for left ankle tendonitis is denied. FINDINGS OF FACT 1. The Veteran’s right ankle tendonitis is manifested by complaints of pain/notations of painful (but full) plantar flexion (with no limitation of dorsiflexion motion) and pain on movement and tenderness with repetitive use; more than moderate limitation of motion is not shown. 2. The Veteran’s left ankle tendonitis is manifested by complaints of pain with full plantar flexion and dorsiflexion (with notation of painful motion at the endpoint of plantar flexion and pain on movement and tenderness on repetitive use; more than moderate limitation of motion is not shown. CONCLUSIONS OF LAW 1. A rating in excess of 10 percent for right ankle tendonitis is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes (Codes) 5024, 5271. 2. A rating in excess of 10 percent for left ankle tendonitis is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Codes 5024, 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from September 2010 to February 2014. These matters are before the Board of Veterans’ Appeals (Board) on appeal of an October 2014 Department of Veteran Affairs (VA) rating decision (that granted service connection for right and left ankle tendonitis, rated 10 percent each, effective February 7, 2014). The Veteran has made references to foot/heel disability. She has established service connection for bilateral plantar fasciitis (which is separately rated, with a February 2018 award of a 30 percent rating. That rating is not currently before the Board.) 1. A rating in excess of 10 percent for right ankle tendonitis is denied. 2. A rating in excess of 10 percent for left ankle tendonitis is denied. Disability evaluations are determined by the application of a schedule of rating, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Tendonitis is rated as degenerative arthritis based on a limitation of motion of the affected part. 38 C.F.R. § 4.71a, Code 5274. Under Code 5271 (for limitation of ankle motion), a 10 percent rating is warranted when there is a moderate limitation of ankle motion. A 20 percent rating is warranted when there is marked limitation of ankle motion. [20 percent and higher ratings (under Codes 5270 and 5272) are also warranted when there is ankylosis of an ankle or of the subastragalar or tarsal joint in poor weight-bearing position. Normal range of motion of the ankle is dorsiflexion from 0 to 20 degrees and plantar flexion from 0 to 45 degrees. 38 C.F.R. § 4.71a.] Where the appeal is from the initial rating decision assigned with an award of service connection, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two ratings shall be assigned, the higher criteria will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability is to be resolved in favor of the claimant. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). On May 2014 VA ankle examination, the Veteran reported chronic pain in both ankles along with some stiffness, mainly in the right ankle. Bilateral achilles tendonitis was diagnosed. Examination of the both ankles found plantar flexion to 45 degrees or more and dorsiflexion to 20 degrees or more. There was evidence of painful motion with plantar flexion beginning at 30 degrees in the right ankle and 45 degrees or more in the left ankle. With repetitive use there was painful motion and localized tenderness on palpation of both ankles. There was no ankylosis of the ankles or subtalar or tarsal joints, and no ankle laxity. A June 2017 VA treatment record notes the Veteran’s joints had good range of motion (she reported constant pain in the ankles). In July 2014 a VA physician who reviewed the record opined it could not be determine without resort to mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability during repeated use of the joints as the Veteran was not observed under those conditions; it was noted that there was no increased pain or decreased function with repetitions on the day of the exam. As the findings pertaining to the left and right ankles are identical (with the exception of the point at which painful motion was noted with plantar flexion), the analysis below applies to both disabilities. As there is nothing in the evidence of record indicating or suggesting, nor has the Veteran alleged, that either ankle is manifested malunion of the os calcis or astragalus, or has undergone an astragalectomy procedure, or is ankylosed, the criteria in Codes 5270, 5272, 5273 and 5274 have no application in this matter, and will not be discussed further. See 38 C.F.R. § 4.71a. More than moderate limitation of motion of either ankle was not found on May 2014 VA examination. The Veteran had full range of motion in each ankle, with some painful motion on plantar flexion (but not producing a greater degree of limitation). Marked limitation of ankle motion is not shown, and has not been alleged. Therefore, a rating in excess of 10 percent for achilles tendonitis of either ankle is not warranted The Board notes the Veteran’s assertion (see VA Form-9) that she does not have achilles tendonitis (but instead has plantar fasciitis with radiating pain). As indicated above, plantar fasciitis is a separate service connected disability entity which is separately rated. That rating was the subject of a February 2018 rating decision and is not currently a matter before the Board. The preponderance of the evidence is against the claims for increased ratings for right and left ankle tendonitis. Therefore, the appeals in these matters must be denied. 38 U.S.C. § 5107; Gilbert, 1 Vet. App. at 56. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Naumovich, Law Clerk