Citation Nr: 18106919 Decision Date: 06/01/18 Archive Date: 05/31/18 DOCKET NO. 15-08 927A DATE: June 1, 2018 ORDER Entitlement to a rating of 20 percent, but not higher, for postoperative Achilles tendon repair of the left foot is granted. FINDINGS OF FACT 1. The Veteran has moderate to severe pain in his left ankle. 2. The Veteran’s left ankle disorder is also manifested by functional loss due to pain and lack of endurance. CONCLUSION OF LAW The criteria for a 20 percent, but not higher, rating for postoperative Achilles tendon repair of the left foot have been met at all times during the pendency of the appeal. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.27, 4.71a, Diagnostic Code 5271 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Air Force from February 1998 to June 1999. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an November 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In December 2017, the Veteran testified at a Board hearing that was conducted by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran’s VA claims file. 1. Entitlement to a rating in excess of 10 percent for postoperative Achilles tendon repair of the left foot (left ankle disability). The Veteran contends that his disability warrants a rating in excess of 10 percent. Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained 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. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors have not been contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (with swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. 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. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Moreover, the United States Court of Appeals for Veterans Claims (Court) in Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016) held that the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to the evaluation of musculoskeletal disabilities under Diagnostic Codes predicated on range of motion measurements. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In considering the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In April 2011, the Veteran filed a claim for an increased rating. The Veteran’s disability is currently rated under the provisions of Diagnostic Code 5271. The Veteran’s disability has been awarded a 10 percent rating throughout the pendency of the appeal. The Board notes that the rating criteria for injuries involving the ankle are set forth under 38 C.F.R. § 4.71a; Diagnostic Codes 5270 through 5274. The Board notes that normal ankle motion is dorsiflexion to 20 degrees, and plantar flexion to 45 degrees. 38 C.F.R. § 4.71a, Plate II. While the rating schedule does not provide any information as to what manifestations constitute “moderate” or “marked” limitation of ankle motion, guidance can be found in VBA’s M21-1 Adjudication Procedures Manual. Specifically, the M21-1 states that moderate limitation of ankle motion is present when there is less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion, while marked limitation of ankle motion is demonstrated when there is less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. See VBA Manual M21-1, Part III, Subpart iv, Chapter 4, Section A, Topic 4(o). Under Diagnostic Code 5270, ankylosis of the ankle in plantar flexion less than 30 degrees warrants a 20 percent rating. If ankylosed in plantar flexion between 30 degrees and 40 degrees, or in dorsiflexion between 0 degrees and 10 degrees, a 30 percent rating is warranted. If ankylosed in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion or eversion deformity, a 40 percent rating is warranted. See 38 C.F.R. § 4.71a, Diagnostic Code 5270 (2017). Under Diagnostic Code 5271, a rating of 10 percent is warranted when limitation of motion of the ankle is moderate. 38 C.F.R. § 4.71a. The maximum rating of 20 percent is warranted where the limitation of motion in the ankle is marked. Under Diagnostic Code 5272, a 10-percent rating is assigned where there is ankylosis of the subastragalar or tarsal joint in good weight-bearing position, and a maximum 20 percent rating is warranted where there is ankylosis of the subastragalar or tarsal joint in poor weight-bearing position. 38 C.F.R. § 4.71a. Diagnostic Code 5273 provides the rating criteria for malunion of the os calcis or astragalus. A 10 percent disability rating is warranted for a moderate deformity, and a 20 percent disability rating is warranted for a marked deformity. Under Diagnostic Code 5274, a 20 percent rating is assigned for astragalectomy. Lastly, the Board notes that Diagnostic Code 5003 states that the severity of arthritis, established by x-ray findings, is to be rated on the basis of limitation of motion under the appropriate Diagnostic Code for the specific joint or joints affected. When there is arthritis with at least some limitation of motion, but to a degree which would be noncompensable under a limitation of motion code, a 10 percent rating will be assigned for each affected major joint or group of minor joints. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. As to a current diagnosis, the Veteran has been diagnosed with post-operative Achilles tendon repair. The record also reflects that diagnostic testing does not show any signs of arthritis. See June 2017 VA examination. As to the Veteran’s lay statements, the Veteran testified that he experiences daily pain and he takes over-the-counter pain medication to suppress the pain. The Veteran has also testified that his ankle will pop and it will give out on him. Lastly, the Veteran added that he has limited motion in his ankle, difficulty bending his ankle, and it causes pain when he walks. See December 2017 Hearing Transcript. The Board acknowledges that the Veteran is considered competent to report on symptoms such as pain and weakness because this requires only personal knowledge. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of personal knowledge); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). Accordingly, the Board finds that the Veteran’s statements are highly probative and has placed significant weight on the Veteran’s statements regarding the severity of the symptoms associated with his left ankle disability. See Davidson, supra. Turning to the medical evidence at hand, in May 2011, the Veteran attended a VA examination. At the examination, the Veteran reported constant pain that could be rated a seven on a scale to ten. The Veteran also reported that his ankle is aggravated by walking, it locks, and it is unstable. Upon examination, the examiner reported that plantar flexion was to 15 degrees and dorsiflexion was to 10 degrees. The examiner also stated that there was no further decease due to pain or fatigue following repetitive motion. See May 2011 VA examination. In October 2012, the Veteran attended an additional examination. At that examination, the Veteran reported constant pain that could be rated a seven on a scale to ten. The Veteran also reported flare-ups in which his pain increased to a nine. Upon examination, the examiner noted that the Veteran had pain in the joint and pain on movement. The examiner also noted that the Veteran had left ankle flexion to 30 degrees and dorsiflexion to 5 degrees. Lastly, the examiner indicated that the Veteran did not have ankylosis. See October 2012 VA examination. In April 2015, the Veteran submitted a private examination report. The Veteran reported that he had pain, swelling, and difficulty walking. Upon examination, the doctor reported that the Veteran had no instability, but his ankle did have signs of crepitus, and pain on movement. The doctor also indicated that the Veteran had plantar flexion to 10 degrees and dorsiflexion to 5 degrees. See April 2015 Private Disability Benefits Questionnaire. Lastly, in June 2017 the Veteran attended an additional VA examination. The Veteran reported that his ankle will pop every three to four months. He added that after it pops it will “swell up for a few days” and it throbs like a heartbeat. The Veteran also reported flare-ups in which he experiences a sharp aching pain. Upon examination, the examiner noted that the Veteran had dorsiflexion 0 to 10 degrees and plantar flexion from 0 to 10 degrees. The examiner added that the Veteran did not have ankylosis, but he did have instability in his left ankle. The examiner also noted that the Veteran had pain on examination and that caused the Veteran to have functional loss. Lastly, the examiner noted that the VA examination took place during a flare-up and the Veteran had functional loss due to pain and lack of endurance. See June 2017 VA examination. The Board finds these medical examinations to be highly probative and has placed significant weight on these reports because the examiners reviewed the Veteran’s medical history, interviewed the Veteran, and then examined him before they rendered an opinion regarding the severity of his disability. See Davidson, supra. In sum, the Board finds that the Veteran’s disability has remained consistent throughout the appeal, and that a rating increase is warranted. The Board finds that the clinical evidence of record demonstrates that the Veteran’s left ankle exhibits instability, lack of endurance, and a moderate level of pain that causes functional loss. Accordingly, the evidence supports the conclusion that the Veteran’s adverse symptomatology equates to a marked limitation of motion of the left ankle. Thus, after resolving all doubt in favor of the Veteran, a disability rating of 20 percent, but not higher, for the Veteran’s left ankle disability is warranted. Extra Considerations In addition, after reviewing the record, the Board has considered other applicable codes which would provide the Veteran with a higher rating. In this regard, the Board notes that the assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.” Butts v. Brown, 5 Vet. App. 532, 538 (1993). Specifically, the Board has applied Diagnostic Codes 5003 and 5200 through 5203. Accordingly, one diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). In turn, the Board has examined the other Diagnostic Codes for the ankle and finds that application of an alternate Diagnostic Code is not appropriate here because the facts and the available medical evidence do not support their application. Although Diagnostic Codes 5270, 5272, 5273, and 5274 pertain to disabilities of the ankle, they are not for application in the present case because there is no evidence of ankylosis of the subastragalar or tarsal joint, malunion of the os calcis or astragalus, or astragalectomy, as required under those codes. Lastly, the Board notes that Diagnostic Code 5003 is not for application in this case because there is no x-ray evidence of arthritis. Moreover, the Board finds that the Veteran has not raised the matter of an extraschedular rating and that the evidence does not present exceptional or unusual circumstances. Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that either a Veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances). As such, no further action as to this matter is required. Lastly, the Board has also considered the Court’s holding in Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that claims for higher evaluations also include a claim for a total disability rating based on individual unemployability (TDIU) when the appellant claims he is unable to work due to a service connected disability). However, the Board finds that Rice is not applicable to the current appeal because the Veteran does not claim and the record does not show that his disability acting alone or in conjunction with his other disabilities prevents the Veteran from engaging in a substantially gainful occupation. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Rescan, Associate Cousel