Citation Nr: 20052921 Decision Date: 08/10/20 Archive Date: 08/10/20 DOCKET NO. 15-21 234 DATE: August 10, 2020 ORDER Entitlement to a rating in excess of 10 percent for achilles tendonitis and right ankle sprain (right ankle disability) prior to December 14, 2019, and in excess of 20 percent thereafter, is denied. FINDING OF FACT 1. Right ankle disability was not manifested with marked limited motion of the ankle prior to December 14, 2019. 2. Since December 14, 2019, the right ankle disability has not been manifested by ankylosis. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 10 percent for achilles tendonitis and right ankle sprain prior to December 14, 2019, and in excess of 20 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5271. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1994 to March 2003 and in the National Guard from February 2003 to March 2006. The Veteran testified at a videoconference hearing before the undersigned Veteran's Law Judge in June 2019. A transcript of the hearing was prepared and associated with the claims file. Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects the Veteran’s ability to function under the ordinary conditions of daily life, including employment, by comparing the Veteran’s symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervations, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995); Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011). The provisions regarding the avoidance of pyramiding, see 38 C.F.R. § 4.14, do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. However, those provisions should only be considered in conjunction with the Disability Codes (DCs) predicated on limitation of motion. 38 C.F.R. §§ 4.40, 4.45. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Painful motion is an important factor of joint disability, which is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. However, the evaluation of painful motion as limited motion only applies when the limitation of motion is noncompensable under the applicable DC. Entitlement to a rating in excess of 10 percent for right ankle disability prior to December 14, 2019, and in excess of 20 percent thereafter The Veteran contended at the June 2019 hearing that his right ankle had worsened since his October 2016 VA examination. In December 2019, the Board remanded the claim to the Agency of Original Jurisdiction (AOJ) to obtain VA treatment records beginning in October 2016, and to schedule a VA examination to evaluate the severity of the Veteran’s right ankle disability. Updated VA treatment records beginning in October 2016 were added to the file. The Veteran underwent a VA examination in December 2019. In consideration of the appeal, the Board is satisfied there was substantial compliance with the remand directives as it relates to the Veteran’s claim for entitlement to a rating in excess of 10 percent for achilles tendonitis and right ankle sprain prior to December 14, 2019, and in excess of 20 percent thereafter, and will proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). The AOJ issued an April 2020 Rating Decision granting an increase to 20 percent disabling effective December 14, 2019 for the Veteran’s achilles tendonitis and right ankle sprain. The AOJ also issued an April 2020 Supplemental Statement of the Case denying an increased rating above 10 percent disabling prior to December 14, 2019 for the Veteran’s achilles tendonitis and right ankle sprain. Based on this procedural development, the issue on appeal has been recharacterized to the two stages before and after December 14, 2019, which is when the Veteran’s achilles tendonitis and right ankle sprain was found to have increased to the 20 percent rating. The Veteran seeks an increase in these ratings. In addition to his June 2019 hearing statements that his right ankle disability had worsened since his October 2016 VA examination, the Veteran contends his right ankle disabilities prevent him from keeping up with his children and grandchildren, he cannot sit or stand for prolonged periods, and he has swelling in his ankle. He testified at the hearing that he was working at the time, but his right ankle pain interrupted his ability to perform his work. He said he has more limited range of motion in his right ankle than he used to, and slight movement bothers him more than it used to. The Veteran said he gets sharp pains if he keeps the ankle still for too long. In a March 2013 Notice of Disagreement, the Veteran contended that he had constant pain on standing and sitting at that time. The Veteran’s service-connected right ankle achilles tendonitis and right ankle sprain is rated under 38 C.F.R. § 4.71a, DC 5271, for limitation of motion of the ankle. Under DC 5271, a 10 percent rating is warranted for moderate limited motion of the ankle. A maximum 20 percent rating is warranted for marked limited motion of the ankle. 38 C.F.R. § 4.71a, DC 5271. The terms “moderate” and “marked” are not defined in VA regulations, and the Board must arrive at an equitable and just decision after having evaluated the evidence. 38 C.F.R. § 4.6. The normal ranges of motion of the ankle are 20 degrees of dorsiflexion and 45 degrees of plantar flexion. 38 C.F.R. § 4.71a, Plate II. According to VA’s M21-1 Adjudication Procedures Manual, an example of moderate limitation of ankle motion is less than 15 degrees of dorsiflexion or less than 30 degrees of plantar flexion, while an example of marked limitation is less than 5 degrees of dorsiflexion or less than 10 degrees of plantar flexion. See M21-1, Part III, Subpart iv, 4.A.3.o, Moderate and Marked LOM of the Ankle. Although the VA Adjudication Procedures Manual is not binding for VA purposes, the Board finds that the definitions of “moderate” and “marked” limited motion of the ankle are illustrative for the purposes of this decision. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of an increased rating in excess of 10 percent for right ankle disability prior to December 14, 2019, and in excess of 20 percent thereafter. The reasons follow. The December 2019 VA examination, the Veteran’s right ankle was found to have 3 degrees of dorsiflexion and 32 degrees of plantar flexion on initial measurement. Measurements of the right ankle after repeated use showed 0 to 0 degrees of dorsiflexion and plantar flexion. These measurements are what the AOJ relied on to grant the Veteran a rating to 20 percent as of December 14, 2019. The 20 percent rating is the maximum rating warranted for limited motion of the ankle under DC 5271. In order to receive a higher rating for the right ankle disability, the Veteran’s right ankle would need to be ankylosed. The December 2019 VA examiner specifically noted the Veteran showed no evidence of ankylosis in the right ankle. Additionally, the preponderance of the evidence is against a finding that the Veteran has ankylosis of the right ankle joint. Therefore, DC 5270 does not apply to the Veteran’s symptoms, and a rating higher than 20 percent as of December 14, 2019 is not warranted. For the period prior to December 14, 2019, range of motion testing showed findings that were less limited. For example the November 2016 VA examination report shows right ankle dorsiflexion to 20 degrees and plantar flexion to 25 degrees. An April 2011 VA examination report shows right ankle dorsiflexion to 20 degrees and plantar flexion to 30 degrees. Taking into account the evidence of record indicating the Veteran’s complaints of pain, the Board finds that the evidence does not reflect that such pain and functional limitations resulted in marked limited motion of the right ankle to establish entitlement to a 20 percent disability rating. Thus, a higher rating under the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 criteria is not approximated in the Veteran’s disability picture for this appeal period. The Board has considered whether a higher rating should be assigned for the period prior to December 14, 2019 pursuant to 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca, and Mitchell criteria, but a higher rating is not warranted for the Veteran's disability picture. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995); Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011). Deluca requires the Board to consider whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. Medical records prior to December 14, 2019 do not show functional loss from these factors that is not contemplated by the current 10 percent rating. VA treatment records from prior to December 14, 2019 consistently noted a steady gait, no use of an assistive device, and full right ankle strength, which is evidence against more than mild weakness. Complaints of right ankle pain were noted, and the Veteran testified at the June 2019 hearing that he used ice and took some pain medication. The November 2016 VA examiner also noted right ankle tenderness with palpation. However, the November 2016 VA examination showed full muscle strength, no atrophy, and no crepitus, which is evidence against more than mild weakness. Further, the April 2011 diagnostic imaging was within normal limits, and the preponderance of the evidence is against a finding of more significant treatment prior to December 14, 2019 such as surgery, use of narcotic pain medication, use of a brace, or use of an assistive device. Thus, the preponderance of the evidence is against a finding that the right ankle disability caused functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint beyond the already assigned 10 percent rating under DC 5271. As for the Veteran’s contentions, while there is evidence the Veteran’s right ankle disabilities have worsened since October 2016, the preponderance of the evidence is against this worsening manifested prior to December 14, 2019. While the medical record documents complaints of right ankle pain, the preponderance of the evidence is against a finding that this pain caused marked limitation of motion in his ankle prior to December 14, 2019. The Veteran’s contentions at the June 2019 hearing that his right ankle pain interrupted his ability to perform his work are competent and credible; however, they do not support a finding of marked functional impairment, as evidenced by the Veteran’s own statements that he did not use an assistive device and took only non-narcotic pain medication. They are further outweighed by July 2019 VA treatment records noting a steady gait. Similarly, the Veteran’s March 2013 contention that he had constant pain on standing and sitting at that time is outweighed by February 2013 VA treatment records noting a steady gait and a lack of evidence of an assistive device or any more significant pain treatment. In sum, the preponderance of the evidence is against a disability rating in excess of 10 percent for achilles tendonitis and right ankle sprain prior to December 14, 2019, and in excess of 20 percent thereafter. As the preponderance of the evidence is against the claim for a higher rating, the benefit of the doubt doctrine is not for application, and the Veteran’s claim for increased staged ratings is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Patton The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.