Citation Nr: 21067878 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 16-02 035 DATE: November 5, 2021 ORDER Entitlement to an initial evaluation of 20 percent, but no higher, for right Achilles tendon rupture is granted. FINDING OF FACT Throughout the period on appeal, the Veteran's right ankle disability has been manifested by marked limitation of motion of the ankle. CONCLUSION OF LAW The criteria for entitlement to an initial evaluation of 10 percent, but no higher, for right Achilles tendon rupture have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.21, 4.40, 4.44, 4.45, 4.59, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Air Force from September 1981 to March 1990. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision by an agency of original jurisdiction (AOJ) of the United States Department of Veterans Affairs (VA). Service connection for right Achilles tendon rupture was granted in the September 2013 rating decision on appeal, and a 10 percent evaluation was assigned, effective August 21, 2012, under Diagnostic Code 5271. The 10 percent evaluation was assigned based on functional loss due to painful motion of the ankle. 38 C.F.R. § 4.59. The matter of increased evaluation was previously remanded by the Board in September 2018. An April 2020 Board decision then denied entitlement to increased evaluation for the service-connected right Achilles tendon rupture. The Veteran appealed the denial to the Court of Appeals for Veterans Claims (Court). In July 2021, based on a Joint Motion for Remand (JMR), the Court vacated the denial and remanded the issue, finding that the Board's holding was conclusory in nature and did not adequately support the conclusion that the Veteran experienced only moderate limited motion based on a lack of reported flare-ups and the symptomatology reported in the September 2013 and December 2019 VA examination reports. In April 2018 the Veteran submitted a RAMP opt-in election form, selecting a Supplemental Claim. However, he did not sign or date this form. The Veteran received notification letters in May 2018 and August 2018 stating that the form he had returned could not be processed without a signature. Both letters included new forms and requested that it be completed within 60 days. However, the Veteran did not resubmit the form. Neither the Veteran nor his representative have expressed any intention to withdraw from the Legacy appeals system since that time. As such, the Board will proceed with adjudication in the Legacy system. With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty-to-assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Neither the Veteran nor his representative has advanced any procedural arguments in relation to VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Increased Ratings Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2018); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In evaluating any disability based on limitation of motion, VA must consider the actual degree of functional impairment imposed by pain, incoordination, weakness, fatigue, and lack of endurance with repetitive motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; Deluca v. Brown, 8 Vet. App. 202 (1995). There are several Diagnostic Codes which are potentially applicable to evaluation of an ankle disability. Code 5270 and 5272 both pertain to ankylosis; however, as no ankylosis is evidenced here, these Codes are not applicable. Code 5273 rates malunion of os calcis or astragalus and Code 5274 is warranted when the Veteran has undergone an astragalectomy. No such are impairments have been noted. Code 5271 pertains to limitation of motion and is discussed in full below. The Board notes that the rating criteria for the Musculoskeletal System was amended effective February 7, 2021. See 85 Fed. Reg. 76453 (Nov. 30, 2020). Under the prior criteria of Diagnostic Code (Code) 5271, a 20 percent rating is warranted for marked limitation of motion, and a 10 percent rating is warranted for moderate limitation of motion. See 38 C.F.R. § 4.71a, Code 5271. Under the current criteria of Code 5271, a 20 percent rating is warranted for marked limitation of motion (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion), and a 10 percent rating is warranted for moderate limitation of motion (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion). See 38 C.F.R. § 4.71a, Code 5271 (Effective February 7, 2021.) The proposed rule stated that the regulatory change was intended as a clarification of current policy. See 82 Fed. Reg. 35719, 35723 (Aug 1, 2017). Prior to the amendment, the words "slight," "moderate," and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all the evidence for "equitable and just decisions." 38 C.F.R. § 4.6. In October 2012, the Veteran reported that he was experiencing right ankle swelling and issues with walking. In September 2013, the Veteran was afforded a VA ankle examination. He was diagnosed with a right Achilles tendon rupture with surgical repair and scar. He reported daily pain and stiffness but denied flare-ups. Upon testing, range of motion (ROM) for right ankle flexion ended at 30 degrees, with objective evidence of painful motion beginning at 35 degrees. Right ankle dorsiflexion ended at 15 degrees, with objective evidence of painful motion at this same point. He was able to perform repetitive-use testing with three repetitions; ROM on flexion ended at 35 degrees and dorsiflexion ROM was unchanged. He did not have additional limitation of ROM following repetitive-use testing but did have functional loss and/or functional impairment of the ankle, which manifested as less movement than normal, pain on movement, disturbance of locomotion, and interference with sitting, standing, and weight-bearing. The examiner further noted that pain and weakness could significantly limit functional ability when the joint was used repeatedly over a period of time. However, the examiner was unable to comment on whether such resulted in additional ROM loss without resorting to speculation as the Veteran was unable to replicate additional ROM lost due to pain during examination. There was localized tenderness or pain on palpation of joints/soft tissue. He had normal muscle strength. Joint stability testing demonstrated laxity on the right side. He did not have ankylosis. He did not have malunion of calcaneus (os calcis) or talus (astragalus) and has not had a talectomy (astragalectomy). He underwent Achilles tendon repair in 2012 with residual symptoms of pain and stiffness. The examiner found that the Veteran could not stand on the right leg. He did not use any assistive devices. Imaging studies performed on the ankle did not produce abnormal findings. The examiner found that the ankle condition impacted the Veteran's ability to work, indicating that he could walk a half mile at one time and one mile during an eight-hour workday. He could stand for two hours at one time and four hours with breaks over the course of an eight-hour workday. In the January 2016 VA Form 9, the Veteran reported that his right foot was aggravated and swelling, noting that he could no longer run, jog, or walk long distances. The Veteran was afforded an additional VA examination in December 2019. He was diagnosed with right-side Achilles tendon rupture. He did not report associated flare-ups, but did report functional loss or impairment, described as an inability to run and difficulty standing for prolonged periods. Upon ROM testing, the dorsiflexion ended at 10 degrees and plantar flexion ended at 20 degrees. The ROM itself contributed to functional loss, and there was limited ROM on active movement and increased pain. Pain was evidenced with weight bearing and there was objective evidence of crepitus. No objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue was shown. He was able to perform repetitive-use testing with at least three repetitions with no additional loss of function or ROM. Although the testing was not performed immediately after repetitive use over time, the examination was found to be neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. It was noted that pain would significantly limit functional ability with repeated use over a period of time, described in terms of ROM as dorsiflexion to 5 degrees and plantar flexion to 15 degrees. Muscle strength was rated 4/5 on plantar flexion and dorsiflexion, with a reduction of muscle strength entirely due to the service-connected condition. He did not have ankylosis. Ankle instability or dislocation was not suspected. He did not have malunion of calcaneus (os calcis) or talus (astragalus) and has not had a talectomy (astragalectomy). He did not use an assistive device. The functional impact from the condition was further described as a limited ability to stand for a prolonged period, to carry heavy objects greater than fifty pounds, to take prolonged walks and/or run at distances less than one mile or sit for two hours. The examiner further noted that there was objective evidence of pain on passive ROM testing of the right ankle and on non-weight bearing. The Board has carefully considered all the evidence and potentially applicable diagnostic codes, including the DeLuca factors, and finds that the disability picture of the Veteran's right ankle condition most nearly approximate the rating criteria for 20 percent evaluation, throughout the appeal period. At 5 degrees estimated dorsiflexion with use over time, the December 2019 examination effectively meets the schedular criteria, particularly when consideration is given to the Veteran's competent and credible lay statements regarding actual functional impairment with extended use. While the 2013 examination did not provide estimates for impairment with use over time, the Veteran's statements, describing an inability to walk far due to pain and swelling, are generally consistent with the "significant impairment" the examiner indicated was possible. Resolving all reasonable doubt in favor of the Veteran, an increased, 20 percent rating, the maximum schedular evaluation, is warranted. Consideration has also been given regarding whether the schedular evaluation is inadequate, requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extra-schedular evaluation where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating, otherwise, the schedular evaluation is adequate, and referral is not required. Thun, 22 Vet. App. at 116. Here, the rating criteria fully account for the Veteran's complaints and symptomatology, as they are based not only on the measured range of motion, but consider the actual functional impairment of the right ankle in consideration of the DeLuca factors, to include repetitive use and use over time. Correia v. McDonald, 28 Vet. App. 158 (2016); Sharpe v. Shulkin, 29 Vet. App. 26, 33 (2017). WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.P. Faris 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.