Citation Nr: 21071892 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 12-08 077A DATE: December 1, 2021 ORDER A 20 percent rating is granted for partial left achilles tendon rupture with scarring even prior to March 27, 2015, so as of an earlier effective date namely, as of May 11, 2010. FINDING OF FACT For the period at issue prior to March 27, 2015, the Veteran's partial left achilles tendon rupture with scarring caused marked limitation of motion but not ankylosis. CONCLUSION OF LAW Prior to March 27, 2015 (more specifically, as of May 11, 2010), the criteria are met for entitlement to the maximum schedular rating of 20 percent for the partial left achilles tendon rupture with scarring. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC/Code) 5271. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1987 to August 1992. This appeal to the Board of Veterans' Appeals (Board) originated from a July 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that confirmed and continued the 10 percent rating then in effect for this partial left achilles tendon rupture with scarring. In an April 2015 rating decision since issued on remand, however, so during the pendency of this appeal, the Appeals Management Center (AMC) increased the rating for this disability from 10 to 20 percent as of March 27, 2015. In August 2020, this Board denied a rating higher than 10 percent for this disability prior to March 27, 2015, and a rating higher than 20 percent since, and in response the Veteran appealed to the higher U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC). In August 2021, the contesting parties filed a Joint Motion for Partial Remand (JMPR), which the Court granted in an Order that same month, partially vacating the Board's decision (to the extent it had denied a rating higher than 10 percent for this disability prior to March 27, 2015) and remanding this portion of the claim back to the Board for readjudication in compliance with directives specified. The higher 20 percent rating is granted for the partial left achilles tendon rupture with scarring even prior to March 27, 2015, so as of an earlier effective date The Veteran contends that he is entitled to a rating higher than 10 percent for his disability for the period prior to March 27, 2015. For the ensuing period from March 27, 2015 onward, he already, as mentioned, has a higher 20 percent rating, which is the highest permissible schedular rating available for limitation of motion. Although the Rating Schedule for evaluating musculoskeletal disabilities was amended effective February 7, 2021, the Board's review of this claim at issue is limited to the period before March 27, 2015. And because the Rating Schedule changed well after this period at issue ended, these amendments to the Rating Schedule are inconsequential since only effective as of the date of the revisions. See, e.g., Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. When evaluating the severity of a disability, it is essential the disability is considered in the context of its entire recorded history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation already has 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). But if the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings, then separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings and is employed for initial or established ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In general, it is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's disability is rated under 38 C.F.R. § 4.71a, DC 5271, so based on the extent of limitation of motion of his left ankle. Under DC 5271, a 10 percent rating is warranted for moderately limited motion of the ankle and a maximum 20 percent rating is warranted for markedly limited motion of the ankle. Id. According to MERRIAM WEBSTER, "moderate" means "tending toward the mean or average amount or dimension". See www.merriam-webster.com/dictionary/moderate. "Marked" means "having a distinctive or emphasized character". See www.merriam-webster.com/dictionary/marked. To give this some context, normal dorsiflexion of the ankle is from 0 to 20 degrees, and normal plantar flexion is from 0 to 45 degrees. See 38 C.F.R. § 4.71, Plate II. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. In granting the August 2021 JMPR, the Court directed the Board to discuss the adequacy of VA examinations in June 2007, July 2009, June 2010, and May 2014 and determine whether a retrospective medical opinion is warranted given the Court's holdings in Sharp and Mitchell. However, as the Board is granting a higher rating to the maximum extent permissible, there is no prejudice to the Veteran in immediately proceeding with readjudication of his claim. First, as concerning the direction to address the adequacy of the June 2007 VA ankle examination, a review of the record shows that examination falls outside the scope of the rating period on appeal. The Veteran was granted service connection for this disability in a June 2007 rating decision, and the award of the initial 10 percent rating was made retroactively effective from March 10, 2006, so back to the date of receipt of his claim for this disability. The RO duly notified him of that decision, and of his appellate rights, and he did not appeal that decision including as concerning that initial rating for this disability or effective date ("downstream" issues that must be separately appealed). See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Nor was any new and material evidence actually or constructively received within a year following provision of notification of that decision; therefore, that decision became final and binding on him based on the evidence then of record. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52, 20.1103. The Veteran filed a VA Form 21-526 (claim application) on May 11, 2010, and on June 15, 2010, he submitted a written statement supplementing that application asserting that his disability had worsened, which was interpreted by the RO as a claim for an increased rating for this disability. Thus, the rating period on appeal starts one year prior to that claim for an increased rating, meaning as of May 11, 2009. See Harper v. Brown, 10 Vet. App. 125 (1997); Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010). That was well after the June 2007 VA examination, in fact, nearly two years after. That said, within the period on appeal, the Veteran first underwent a VA ankle examination in July 2009. During this examination, he had left ankle dorsiflexion to 10 degrees and plantar flexion to 20 degrees, meaning his left ankle motion was limited by half in dorsiflexion (normal being to 20 degrees) and by over half in plantar flexion (normal being to 45 degrees). Further, while the examiner observed no objective pain on range-of-motion testing, the Veteran stated that he had painful flare ups with weakness albeit with no additional loss in his range of motion. Functional limitations included limitation in standing duration and some mild difficulties climbing and squatting. He is competent to report his symptoms during flare ups. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran next underwent a VA ankle examination in June 2010. At this examination, he demonstrated left ankle dorsiflexion to 18 degrees and plantar flexion to 20 degrees. While this shows an apparent improvement in dorsiflexion, it continues to show that his left ankle plantar flexion was less than half of normal and even slightly less that when measured during the immediately preceding VA examination. He also continued to report flare ups of pain and chronic swelling and decreased ability to walk or stand until the pain subsided. The examiner personally observed pain on motion of this ankle. During the May 2014 VA ankle examination that also has been called into question, the Veteran demonstrated dorsiflexion to just 5 degrees and had pain starting at 5 degrees (so at this terminal endpoint), and he had plantar flexion to 35 degrees. This dorsiflexion measurement further supports a higher 20 percent rating, as this shows he had what amounted to just one quarter of normal dorsiflexion. Also, the examiner affirmed the Veteran's disability caused less movement than normal, weakened movement, and pain on movement. Additionally, he had pain on palpation and decreased muscle strength testing during left ankle plantar flexion and dorsiflexion, although there was no observed joint instability or ankylosis. The Veteran then underwent another VA ankle examination on March 27, 2015, and the results of that examination prompted the RO to increase the rating for his disability from 10 to 20 percent as of the date of that examination. In other words, according to the three scenarios discussed in Harper, the RO (AMC) concluded that was the "date entitlement arose" to this higher rating. 38 C.F.R. § 3.400(o)(1). But after additional consideration consistent with the direction outlined in the August 2021 JMPR, the Board finds that, for the period prior to March 27, 2015, the Veteran's disability caused what amounted to "marked" limitation of motion (rather than just relatively "moderate" limitation of motion in comparison). To wit, his left ankle range of motion varied during this earlier period, however, he consistently reported that his left ankle motion was painful and impacted his ability to stand and walk including especially during flare ups. Thus, the Board finds that, for this earlier period at issue, his disability had a distinctive or emphasized character, consistent with the definition of "marked" as opposed to "moderate". This level of impairment warrants a higher 20 percent rating for this period at issue prior to March 27, 2015. That is, this greater rating will date from receipt of his May 11, 2010 claim for a higher rating for this disability since it is not factually ascertainable that he deserved this higher rating during the year immediately preceding the receipt of this increased-rating claim. 38 C.F.R. § 3.400(o)(2). The Board has considered whether any other DCs related to disabilities of the ankle would provide for an even higher disability rating. However, the evidence does not reflect that the symptoms and consequent impairment the Veteran has would warrant any higher rating under a different DC. See 38 C.F.R. § 4.71a. Specifically, the only higher ratings for disabilities of the ankle are under DC 5270 for ankylosis of the ankle. And the medical evidence of record does not show that he has had ankylosis of this ankle at any point during the rating period on appeal. Ankylosis is stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988) (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure."); see also Coyalong v. West, 12 Vet. App. 524, 528 (1999); Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. Indeed, this true even when the Veteran's symptoms are most problematic (flare ups), so he also does not have the functional equivalent of ankylosis even in this circumstance. See Chavis v. McDonough, No. 18-2928 (April 16, 2021). As such, a rating higher than 20 percent is not available to him under a different DC pertaining to the ankle. Therefore, in conclusion, the Board finds that the evidence supports the Veteran's appeal for a rating greater than 10 percent for his disability prior to March 27, 2015 and, to this end, is awarding the higher 20 percent rating as of an earlier effective date, namely, as of May 11, 2010. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Pak 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.