Citation Nr: 21074812 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 16-11 028 DATE: December 16, 2021 ORDER Entitlement to an initial 10 percent, but no higher, rating throughout the appeal period for right Achilles tendon rupture is granted, subject to regulations governing the payment of monetary awards. REMANDED Entitlement to a separate compensable rating for right lower extremity neurologic impairment as secondary to service-connected right Achilles tendon rupture disability is remanded. FINDING OF FACT For the entire initial rating period on appeal, the Veteran has had no more than moderate limitation of motion of the right ankle and without further limitations due to any functional loss. CONCLUSION OF LAW Throughout the appeal period, the criteria for an initial 10 percent, but no higher, rating for right Achilles tendon rupture are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.59, 4.7, 4.71a, Diagnostic Code 5271 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Air Force from August 1986 to March 2007. These matters are before the Board of Veterans' Appeals (Board) on appeal from an October 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the Board at a hearing held by the undersigned in January 2019. A transcript of the hearing is of record. Thereafter, in May 2019, the Board remanded the Veteran's claim for an increased rating for his right Achilles tendon rupture for further development. In a February 2020 rating decision, the Agency of Original Jurisdiction (AOJ) increased the rating for the Veteran's right Achilles tendon rupture from noncompensable to 10 percent, effective January 7, 2020. In the February 2020 decision, the AOJ also awarded service connection for sleep apnea. As that represents a full grant of the issue that was previously before the Board, that appeal has been resolved and will not be addressed further. Increased Rating Right Achilles Tendon Rupture The Veteran and his representative contend the Veteran is entitled to an increased rating for his right Achilles tendon rupture. See Informal Hearing Presentation, dated November 2021. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. A Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board acknowledges that with respect to a claim for an increased rating for an already service-connected disability, a Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The AOJ has assigned the Veteran's right Achilles tendon rupture a noncompensable rating prior to January 7, 2020 and 10 percent thereafter under Diagnostic Code 5271. Under Diagnostic Code 5271, a 10 percent rating is warranted for moderate limitation of motion. A 20 percent rating is warranted for marked limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5271. Prior to February 7, 2021 the schedule of ratings did not provide any information as to what manifestations constitute "moderate" or "marked" limitation of ankle motion. However, the rating criteria under Diagnostic Code 5271 were revised effective February 7, 2021. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (codified at 38 C.F.R. § 4.71a, Diagnostic Code 5271). The amendment to the criteria defined moderate and marked limitation of motion and did not change the ratings assigned for moderate and marked limitation of motion. The February 7, 2021 amendment defined moderate limitation of motion as less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion and marked limitation of motion as less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. See 38 C.F.R. § 4.71a, Amended Diagnostic Code 5271. Normal range of motion of the ankle includes dorsiflexion (extension) from 0 degrees to 20 degrees and plantar flexion from 0 degrees to 45 degrees. 38 C.F.R. § 4.71a, Plate II. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Degenerative and/or traumatic arthritis as shown by X-ray studies are rated based on limitation of motion of the affected joint. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. When, however, the limitation of motion is noncompensable under the appropriate diagnostic code, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. The rating criteria for arthritis under Diagnostic Code 5003 were revised during the course of the Veteran's appeal, effective February 7, 2021. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76,453, 76,463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5003). However, the changes to Diagnostic Code 5003 are in name only in that the amended criteria encompass any degenerative arthritis, other than posttraumatic arthritis. Thus, the amended rating criteria have not affected the Veteran's rating for his right ankle disability. Consideration of other diagnostic codes for rating an ankle disability (5270, 5272, 5273, 5274) is inappropriate in this case as the Veteran's right Achilles tendon rupture does not include the pathology required in the criteria for those diagnostic codes (ankylosis of the ankle, ankylosis of the subastragalar or tarsal joint, malunion of the Os calcis or astragalus, or astragalectomy). 38 C.F.R. § 4.71a. Turning to the evidence of record, the Veteran attended a VA examination in June 2017 for an evaluation of his right Achilles tendon rupture. The Veteran had full dorsiflexion without pain and plantar flexion to 35 degrees without pain. The examiner noted that the abnormal range of motion contributed to functional loss in the form of stiffness of the Veteran's foot makes walking difficult. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. The Veteran had no additional loss of range of motion upon repetitive use testing. The examiner noted that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use. The examiner noted there were no additional factors contributing to disability. The Veteran had normal muscle strength, no muscle atrophy, no ankylosis, and no ankle joint instability. The examiner noted the Veteran's right Achilles tendon rupture caused functional impact in the form of stiffness and tightness of the ankle from recovery of the Achilles tendon surgery which makes walking difficult, and there is residual numbness of the foot as a complication of the surgery. The Veteran reported at the examination that his condition has gotten better since his 2016 Achilles tendon rupture surgery, but it is not fully healed. He reported that full sensation has not returned since the nerve block from the surgery. He reported having numbness in the middle three toes. Furthermore, he reported his ankle is improving, but he still has tightness and further physical therapy was planned. The Veteran reported no flare-ups, but he reported functional loss being that it was difficult to stand for any length of time or run due to ankle stiffness and foot numbness. September 2018 and November 2018 VA podiatry clinic notes reflect that the Veteran reported his right Achilles tendon did not bother him. October and November 2018 VA physical therapy treatment notes reflect that the Veteran demonstrated deficits in ankle range of motion, functional strength, and gait limiting prolonged ambulation and standing tolerance. Although the treatment note indicates deficits in ankle range of motion, the exact range of motion in terms of degrees was not recorded. The Veteran attended an additional VA examination in January 2020 for an evaluation of his right Achilles tendon rupture. The Veteran had dorsiflexion to 15 degrees with pain and plantar flexion to 30 degrees with pain. The examiner noted that the abnormal range of motion contributed to functional loss in the form of "walking." There was objective evidence of localized tenderness or pain on palpation of the joint in the posterior ankle of moderate severity. The Veteran had pain with weight bearing. Upon repetitive use, the Veteran had dorsiflexion to 10 degrees and plantar flexion to 25 degrees. With repeated use, the examiner noted that pain and lack of endurance significantly limited functional ability. With repeated use, the examiner noted the Veteran's dorsiflexion would be to 10 degrees and plantar flexion would be to 25 degrees. The examiner noted there were no additional factors contributing to disability. The Veteran had normal muscle strength, no muscle atrophy, and no ankylosis. The examiner noted that ankle instability was suspected, but the Anterior Drawer and Talar Tilt tests were negative. The examiner noted the Veteran's right Achilles tendon rupture resulted in swelling, tenderness, and pain with walking. The Veteran reported at the examination that he has functional loss in the form of difficulty walking without pain, and he cannot stand longer than 30 minutes. He reported no flare-ups. In evaluating the Veteran's increased rating claim, the Board must address the provisions of 38 C.F.R. §§ 4.40, 4.45. The Board recognizes the Veteran's reports of pain and functional loss as a result of his right Achilles tendon rupture, notably his difficulty with walking and prolonged standing. Per 38 C.F.R. § 4.71a, Diagnostic Code 5003 for arthritis, there must be objective evidence of painful motion to award a 10 percent rating when the limitation of motion is otherwise noncompensable. Here, the Veteran was not diagnosed with arthritis until the January 2020 VA examination. However, a 10 percent, but no higher, rating is warranted for the Veteran's ankle joint per 38 C.F.R. § 4.59 and supported by the Veteran's statement at the June 2017 VA examination that he was undergoing physical therapy for residual stiffness and tightness following his right Achilles tendon rupture. 38 C.F.R. §§ 4.40, 4.45, 4.59; see Pettiti v. McDonald, 27 Vet. App. 415, 427 (2015). Furthermore, the June 2017 VA examination report reflects that stiffness and tightness of the ankle from recovery of the Achilles tendon surgery made walking difficult. Id. In addition, 2018 VA physical therapy records reflect deficits in functional strength and his gait limited prolonged ambulation and standing tolerance. Therefore, a 10 percent rating under Diagnostic Code 5271 is supported for the entire period on appeal. When considering the reports of functional loss as shown by the June 2017 and January 2020 VA examinations and the Veteran's reports of pain, the evidence shows the Veteran's range of motion was at most limited to 10 degrees for dorsiflexion and 25 degrees for plantar flexion. See January 2020 VA examination report. Thus, even when considering the reported pain and associated functional loss, the Veteran's disability picture does not more nearly approximate marked limitation of motion, under the criteria effective both prior to and from February 7, 2021. Thus, a rating in excess of 10 percent is not warranted for the entire appeal period. As the evidence of record does not reflect that there was any ankylosis of the right ankle at any point during the appeal period, a rating in excess of 10 percent under Diagnostic Code 5270 is not warranted. See 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5270. Increased evaluations under other potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). As discussed above, the findings show that the Veteran's right Achilles tendon rupture disability is a musculoskeletal disability manifested by painful motion and thus has been appropriately rated under Diagnostic Code 5271. The evidence of record does not show that the Veteran has ankylosis, a heel bone fracture, or has had an astragalectomy. Therefore, a rating under Diagnostic Codes 5272-5274 is not warranted. 38 C.F.R. §§ 4.7, 4.71a. The Board acknowledges that there is evidence of a neurologic impairment of the right lower extremity throughout the period in which the Veteran's right Achilles tendon rupture claim has been on appeal; however, as the record is unclear as to the nature and severity of the disability, including the relationship to the service-connected right Achilles tendon rupture disability, the Board is remanding the issue of entitlement to a separate rating for further development. As such, the Board finds that the evidence more nearly approximates an assignment of a 10 percent, but no higher, rating throughout the appeal period for the Veteran's right Achilles tendon rupture. REASONS FOR REMAND Entitlement to a separate compensable rating for right lower extremity neurologic impairment as secondary to service-connected right Achilles tendon rupture disability is remanded. The record reflects that the Veteran has reported having numbness in the right lower extremity since his January 2016 Achilles tendon surgery. Furthermore, medical evidence, including an October 2016 nerve conduction study and an April 2018 MR neurogram, illustrates that the Veteran has a right lower extremity nerve condition(s). However, it is unclear from the record as to whether any neurologic impairment is caused or aggravated by the Veteran's service-connected right Achilles tendon disability. In addition, it is unclear from the record as to the nature and severity of any nerve condition, including the nerve(s) affected. Thus, a remand is required to afford the Veteran a peripheral nerve VA examination to determine the nature and etiology of any right lower extremity neurologic impairment. The matter is REMANDED for the following action: 1. Obtain any updated VA treatment records from September 2020 to the present. Contact the Veteran and afford him the opportunity to identify or submit any pertinent evidence in support of his claims, to include records of any private treatment. Based on his response, attempt to procure copies of all records which have not been obtained from identified treatment sources. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 2. After completing the development requested in item 1, provide the Veteran an appropriate VA examination (or telehealth interview, if an in-person examination is not feasible) to determine the nature, extent, and etiology of any right lower extremity neurologic impairment. The electronic claims file must be made available to the examiner for review in connection with the examination. All indicated tests should be conducted, and the reports of any such studies incorporated into the examination reports to be associated with the claims file. After reviewing the claims file, the examiner should address the following: (a.) Is it at least as likely as not (50 percent or greater probability) that any right lower extremity neurologic impairment is caused by his service-connected right Achilles tendon rupture disability? (b.) Is it at least as likely as not (50 percent or greater probability) that any right lower extremity neurologic impairment is aggravated (i.e., any increase in the severity beyond its natural progression) by his service-connected right Achilles tendon rupture disability? If the Veteran's right lower extremity neurologic impairment has been aggravated by his service-connected right Achilles tendon rupture disability, the VA examiner should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Breitbach, Counsel 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.