Citation Nr: 1822984 Decision Date: 04/18/18 Archive Date: 04/25/18 DOCKET NO. 12-24 582 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a rating in excess of 10 percent for left Achilles tendonitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J.A. Williams, Associate Counsel INTRODUCTION The Veteran had active service from September 1982 to May 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran had a hearing before the undersigned in May 2015. A transcript of the proceeding has been reviewed prior to the issuance of this decision. In September 2015, the Board remanded the claim for additional development. The Board finds that the RO substantially complied with the remand instructions. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). FINDINGS OF FACT For the entire appeal period, the Veteran's left ankle disability manifested in marked limitation of motion; ankylosis of the left ankle is not shown. CONCLUSION OF LAW The criteria for an increased rating of 20 percent, but no higher, for a left ankle disability are met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5262, 5270, 5271 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The assignment of a particular Diagnostic Code depends wholly on the facts of the particular case. Butts v. Brown, 5 Vet. App. 532, 538 (1993). Where functional loss due to pain on motion is alleged, 38 C.F.R. §§ 4.40 and 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). 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 provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). As required by 38 C.F.R. § 4.59, joints should be tested for pain on both active and passive motion, in weight bearing and non-weight bearing, and if possible, with the range of opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). The Veteran asserts that his left ankle disability is more disabling than reflected by his current 10 percent rating. The disability is rated under Code 5024-5271. Code 5024 is for tenosynovitis, and indicates that it will be rated on limitation of motion of the affected part, with or without associated fatigue, sleep disturbance, stiffness, or paresthesias. Code 5271 rates based on limitation of motion of the ankle. In particular, it provides a 10 percent rating for moderate limitation of motion. A 20 percent maximum rating is warranted under Code 5271 for marked limitation of motion. 38 C.F.R. § 4.71a. Full ankle motion includes dorsiflexion from 0 to 20 degrees, and plantar flexion from 0 to 45 degrees. See 38 C.F.R. § 4.71, Plate II. The terms "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," and all evidence must be evaluated in deciding rating claims. 38 C.F.R. § 4.6. It should also be noted that use of descriptive terminology by medical examiners, 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. An April 2010 VA treatment note shows the Veteran reported increasing pain over his left ankle over the previous year. He reported difficulty with weight bearing and indicated his ankle sometimes buckles. The Veteran was afforded a VA examination in April 2010, at which time he reported that his pain and swelling of the left ankle gets progressively worse. He was using medication and a brace for his ankle daily. He also iced his ankle. His additional symptoms included deformity, decreased speed of joint motion, redness, swelling, and tenderness, all of which was worse with certain movements. However, on exam, there was no evidence of giving way, instability, stiffness, weakness, incoordination, episodes of dislocation or subluxation, locking episodes, or effusion. The Veteran reported that due to his left ankle pain, he is unable to stand for more than a few minutes and is limited to walking 1 to 2 blocks. The Veteran's gait was antalgic. The Veteran's ankle showed guarding of movement. Range of motion testing showed left dorsiflexion to 10 degrees and left plantar flexion to 20 degrees. On repetitive-use testing the Veteran showed left dorsiflexion to 15 degrees and left plantar flexion to 20 degrees. There was objective evidence of pain with active and repetitive motion. There was no ankylosis shown. The examiner reported that MRI study showed no significant abnormalities noted at the ankle joint or articular surfaces. The Veteran further reported decreased mobility, problems with lifting and carrying, and decreased strength in the lower extremity. A May 2010 treatment note indicates that the Veteran reported he was still having pain in his ankle that was sore to the touch. A June 2010 private treatment note indicates that the Veteran was given a removable walking boot to support his ankle. In his August 2013 VA Form 9, the Veteran reported that his left ankle makes standing, running, and every day use painful. He reported that the pain and swelling causes a lack of movement and his range of motion is very limited. He reported wearing a brace most of the time and having to ice his ankle often. During the May 2015 hearing, the Veteran reported that his range of motion had deteriorated considerably. He reported having limited use of his ankle and constant swelling. He reported his swelling occurs every day but the degree of swelling varies from week to week. He believed it was caused by prolonged time on his feet. He further reported that due to the immobility of his ankle, he is not able to do any type of exercise or anything physical with his two sons. He reported experiencing giving way of the ankle. He also reported throbbing that has caused him to wake up out of his sleep. The Veteran was afforded an additional VA examination in November 2015. He again reported worsening pain. He reported he is unable to ride a bicycle or stand on his feet for 15 to 20 minutes. He reported flare-ups with swelling a couple times a week and lasting about a day. Range of motion testing was normal; however, there was pain noted on the examination. There was no limitation in range of motion with repetitive use testing. There was objective evidence of mild tenderness over the lower Achilles tendons. There was no evidence of crepitus. The Veteran showed full (5/5) muscle strength. There was no ankylosis. The examiner noted that the Veteran had not seen any physicians specifically about his ankle in 5 years. He further noted that the Veteran had not mentioned his left ankle to his primary care physician in the past two years. Based on the preceding evidence, the Board finds that for the entire appeal period, the Veteran's left ankle disability more nearly approximated the criteria for a 20 percent rating. When considering his lay testimony regarding flare ups, the Board finds that his ankle disability is manifested by marked limitation of motion sufficient to warrant a 20 percent rating under DC 5271. During the April 2010 examination, the Veteran was shown to have an antalgic gait. He also showed left ankle dorsiflexion to 10 degrees and plantar flexion to 20 degrees. As previously noted, normal ankle range of motion is 20 percent for dorsiflexion and 45 for plantar flexion. Furthermore, the Veteran has consistently reported consistent swelling manifesting in significant range of motion. The Board acknowledges that the Veteran had full range of motion in the left ankle during the November 2015 VA examination. However, based on the Veteran's statements and the competent medical evidence, the record is sufficient to show marked limitation of motion. As such, the criteria for a 20 percent rating are met. The highest assignable rating for limitation of motion of the ankle under DC 5271 is 20 percent. The Board also has considered the applicability of other potentially applicable diagnostic criteria for rating the Veteran's left ankle disability but finds that no higher rating is assignable any other diagnostic code. As there is no competent evidence of record documenting the presence of any ankylosis in the ankle or its equivalent, an increased or separate rating is not warranted under DC 5270. See 38 C.F.R. § 4.71a. In sum, a rating of 20 percent for Veteran's left ankle, but no higher, is warranted. ORDER Entitlement to a disability rating of 20 percent, but no higher, for left Achilles tendonitis is granted, subject to regulations applicable to the payment of monetary benefits. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs