Citation Nr: 21075618 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 14-29 085 DATE: December 21, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for service-connected right ankle Achilles tendonitis from March 16, 2011 to June 26, 2012 is denied. Entitlement to a disability rating in excess of 40 percent for service-connected right ankle Achilles tendonitis from August 1, 2012 is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU), to include on an extraschedular basis, is remanded. FINDINGS OF FACT 1. From March 16, 2011 to June 26, 2012, the Veteran's right ankle condition did not manifest with ankylosis in plantar flexion between 30 and 40 degrees, or in dorsiflexion between 0 and 10 degrees, or in functional ankylosis. 2. Since August 1, 2012, the Veteran's right ankle condition manifested with complete paralysis of the external popliteal nerve and foot drop. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 20 percent for service-connected right ankle Achilles tendonitis from March 16, 2011 to June 26, 2012 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.71a, Diagnostic Code (DC) 5271. 2. The criteria for entitlement to a disability rating in excess of 40 percent for service-connected right ankle Achilles tendonitis from August 1, 2012 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.71a, DC 5271-8521. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Navy from November 1987 to December 1994. This matter before the Board of Veterans' Appeals (Board) is on appeal from an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota (Agency of Original Jurisdiction (AOJ)). The Veteran testified at a video conference hearing before the undersigned in January 2018. A transcript of the proceeding is of record. This matter was previously before the Board in February 2020. At that time, the Board denied both claims, as well as a claim for entitlement to an increased disability rating for the Veteran's left ankle. The Veteran subsequently appealed the Board's decision as it pertained to the Veteran's right ankle and TDIU to the Court of Appeals for Veterans' Claims (the Court); because he did not contest the decision as it related to his left ankle, that issue is not before the Board for adjudication. The parties filed a Joint Motion for Remand (JMR) which the Court approved, vacating the Board's decision and remanding both claims due to the Board's failure to provide an adequate statement of reasons and bases for its decision. The claims were subsequently returned to the Board and, in a June 2021 decision, the Board remanded to seek a medical opinion regarding the etiology of the Veteran's right foot drop. A review of the file reflects that an opinion was rendered and associated with the file in August 2021. The Board thus finds that the AOJ substantially complied with the remand directive in accordance with Stegall v. West, 11 Vet. App. 268, 271 (1998), and the claims are now back before the Board for adjudication. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability is resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson v. Brown, 12 Vet. App. 119, 12627 (1999). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994); Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The Board notes that, effective February 7, 2021, the applicable rating criteria for certain musculoskeletal disorders were revised. 85 Fed. Reg. 76453 (Nov. 30, 2020). When regulations are revised during the course of an appeal, the Board is generally required to consider the claim in light of both the former and revised schedular criteria and to apply the regulation more favorable to the Veteran. The new rating criteria, however, may be applied only prospectively from the effective date of the change forward, unless the regulatory change specifically permits retroactive application. VAOPGCPREC 3-2000 (Apr. 10, 2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (emphasis added). The final rule did not specifically permit retroactivity of the changes. The Board has an independent obligation to consider all potentially applicable provisions of law and regulation and to apply the diagnostic criteria in a manner that maximizes benefits. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); Bradley v. Peake, 22 Vet. App. 280 (2008). 1. Entitlement to a disability rating in excess of 20 percent for service-connected right ankle Achilles tendonitis from March 16, 2011 to June 26, 2012 From March 16, 2011 to June 26, 2012, the Veteran's right ankle Achilles tendonitis was solely evaluated under DC 5271, which applies to limitation of motion of the ankle. Under DC 5271, a 10 percent rating is assigned for moderate limitation of motion, and a maximum 20 percent rating is warranted for marked limited motion of the ankle. 38 C.F.R. § 4.71a, DC 5271. Normal range of motion of the ankle includes plantar flexion from 0 degrees to 45 degrees and dorsiflexion (extension) from 0 degrees to 20 degrees. 38 C.F.R. § 4.71a, Plate II. DC 5270 governs ankylosis of the ankle and provides a 20 percent rating for ankylosis in plantar flexion, less than 30 degrees; a 30 percent rating for ankylosis in plantar flexion, between 30 degrees and 40 degrees, or in dorsiflexion, between 0 degrees and 10 degrees; and a 40 percent rating for ankylosis in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion or eversion deformity. The Veteran filed his claim for entitlement to service connection for a right ankle disability in March 2011. He stated that the steel decks and hard manual labor wreaked havoc on his ankles and he came out of the service experiencing severe pain in this area. There is minimal medical evidence of record for the time period spanning March 16, 2011 to June 26, 2012. Shortly after the Veteran filed his claim, CAPRI VA treatment records were associated with the file. These records include the following treatment notes as they pertain to his condition. In July 2011, he was seen for right foot pain present for 2 weeks, which was assessed as a right calcaneal spur. At that time, imaging reflected that his ankle mortise was intact; aside from the spur, everything else assessed on the imaging was normal. The Veteran provided that he has felt pain in his heel since his military service. In August 2011, he was referred to podiatry to be fitted with an ankle boot to help "rest [his] ankle;" he subsequently received two ankle stirrup braces several days later. In September 2011, it was noted he had a history of Achilles tendonitis enthesopathy, but that he was not ready for surgery at that time. This sentiment was expressed again in November 2011, noting that he was concerned about the convalescence period and complications that may arise from the surgery. By February 2012, the Veteran had changed his mind and requested surgery; his shoes were also changed at this visit. In a follow-up visit in March 2012, the Veteran and his physician discussed treatment options for his painful right heel that was not responding to conservative care, and the Veteran reiterated his desire for surgical correction. In May 2012, the Veteran submitted a lay statement explaining that he experienced severe pain in his ankles and heels that had gotten progressively worse over the years. He stated that he was receiving surgery soon for his condition, and that he had to take time off of work as a result of his ankle/foot pain. Aside from this lay statement and the CAPRI VA treatment records, the file does not contain additional evidence as it pertains to this period on appeal for adjudication. To that end, the Board does not find that the Veteran is entitled to a disability rating in excess of 20 percent for his service-connected right ankle Achilles tendonitis for the period of March 16, 2011 through June 26, 2012. The AOJ awarded a 20 percent disability rating for this time period in an October 2017 rating decision due to marked limitation of motion of the ankle based on dorsiflexion less than 5 degrees (which was assessed on examination dated May 29, 2015, but was applied retroactively through the date of the claim, giving the Veteran the benefit of the doubt). The Board finds that compensable ankylosis, or that functional ankylosis, had not been present during this time period. Ankylosis is an objective finding or symptom and not a diagnosis. Chavis v. McDonough, 34 Vet. App. 1 (2021). Notably, multiple definitions of "ankylosis" were discussed in Chavis including general medical dictionary definitions as follows: "[i]mmobility and consolidation of a joint due to disease, injury, or surgical procedure" (citing DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 94 (33rd ed. 2019)), "[s]tiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint" (citing STEADMAN'S MEDICAL DICTIONARY 95 (28th ed. 2006)) and "[a] stiffening or immobilization of a joint as a result of injury, disease, or surgical intervention" (citing CHURCHILL'S ILLUSTRATED MEDICAL DICTIONARY 91 (1989). The Court noted that VA had previously defined ankylosis as "bony fixation." The radiographic evidence demonstrated enthesopathy which a disease occurring at the site of attachment of muscle tendons and ligaments to bones or joint capsules. https://www.dictionary.com/browse/enthesopathy. To the extent this is a form of ankylosis, there was no fixation of movement of the ankle in plantar flexion between 30 and 40 degrees, or in dorsiflexion between 0 and 10 degrees. Indeed, there are no range of motion measurements of record to assess the severity of the Veteran's condition, and the Veteran did not describe this type of limitation or functional ankylosis even during flares. Because the lay and medical evidence of record did not support the finding that the Veteran's right ankle condition manifested with ankylosis in plantar flexion between 30 and 40 degrees, or in dorsiflexion between 0 and 10 degrees, or result in functional ankylosis, the Board must deny the Veteran's claim for a disability rating in excess of 20 percent for service-connected right ankle Achilles tendonitis from March 16, 2011 to June 26, 2012. 2. Entitlement to a disability rating in excess of 40 percent for service-connected right ankle Achilles tendonitis from August 1, 2012 Since August 1, 2012, the Veteran's right ankle Achilles tendonitis has been evaluated pursuant to 38 C.F.R. § 4.71a, DCs 5271-8521. Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. As an initial matter, the Board acknowledges that the Veteran was in receipt of a 100 percent disability rating from June 26, 2012 through August 1, 2012 for a period of convalescence following surgery. This period is not otherwise at issue in this decision. See 38 C.F.R. § 4.30. As noted above, a 10 percent rating is assigned for moderate limitation of motion, and a maximum 20 percent rating is warranted for marked limited motion of the ankle under DC 5271. 38 C.F.R. § 4.71a, DC 5271. Under DC 8521, a 10 percent rating is assigned for neuritis with mild incomplete paralysis of the external popliteal nerve. A 20 percent rating is assigned for neuritis with moderate incomplete paralysis of the external popliteal nerve. A 30 percent rating is assigned for neuritis with severe incomplete paralysis of the external popliteal nerve. A 40 percent rating is assigned for neuritis with complete paralysis of the external popliteal nerve; foot drop and slight drop of the first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of the proximal phalanges of toes lost, adduction weakened; anesthesia covers entire dorsum of foot and toes. 38 C.F.R. § 4.124a, DC 8521. CAPRI VA treatment records document ongoing treatment for his right ankle, specifically multiple physical therapy sessions following surgery. Towards the end of his physical therapy treatment following surgery, his right ankle was described as "grossly 4+/5 functional weakness mostly to pain," with dorsiflexion 0-7 degrees and plantar flexion 0 to 30 degrees. Additional range of motion testing in CAPRI VA treatment records seemingly documents the Veteran's limitations as 4/5 in his right ankle. He was fitted for two ankle stirrup braces in April 2014 (his second fitting; his first took place in August 2011). In June 2015, he underwent a VA examination for his ankles. His right ankle range of motion testing revealed "moderate" tenderness. During a flare up, the severity is moderate to moderate-severe. No ankylosis was noted. The examiner noted that he appeared to develop elements of right foot drop following his surgery on June 26, 2012 for excision of retro-calcaneal exostosis. While VA CAPRI treatment records continuously note the Veteran's ankle condition, he does not seem to be actively receiving consistent ongoing treatment for it, though a treatment note from May 2018 recorded that the use of cream and gel seem to be controlling his ankle pain/Achilles tendon. A clinic note dated February 2020 documented he reported increased discomfort of the right ankle; he also requested new braces at this appointment, indicating his were old. The subsequent VA examination performed in September 2019 in conjunction with a prior Board remand indicates results similar to the June 2015 VA examination. Again, the Veteran's right ankle range of motion testing revealed "moderate" tenderness. During a flare up, his dorsiflexion is limited to 0 degrees and plantar flexion is limited to 5 degrees. No ankylosis was noted. In August 2021, the Veteran received his most recent VA examination for his ankle. The examiner documented that the Veteran's condition has progressed and worsened; he noted that after surgery (though time uncertain), the Veteran developed foot drop involving his toes. He had no active range of motion in his right foot due to the foot drop. In addition to the ankle VA examination, the examiner provided a peripheral nerves examination, which documented a diagnosis of complete right peroneal foot drop since surgery that was not formally noticed until his cast removal. Following this examination, the AOJ increased the Veteran's disability rating; it reclassified his condition as right ankle tendinitis with foot drop, status post surgery and evaluated it as 40 percent disabling from August 1, 2012 the date following the period of convalescence post-surgery. This disability rating was based on his complete paralysis of the external popliteal nerve and foot drop of the right foot under DC 8521. The Veteran is in receipt of the highest possible disability ratings pursuant to DCs 5271 and 8521 for this time period. Additionally, the 'amputation rule' provides that the combined rating for disabilities of an extremity shall not exceed the rating for amputation at the elective level, were amputation to be performed. 38 C.F.R. § 4.68. For example, the combined evaluations for disabilities below the knee shall not exceed the 40 percent evaluation (DC 5165). As the Veteran is already in receipt of a 40 percent disability rating, there is no additional benefit to be awarded within the confines of the law. There is no doubt of material fact to be resolved in his favor, and the Veteran's claim is denied. REASONS FOR REMAND 1. Entitlement to TDIU, to include on an extraschedular basis, is remanded. Regrettably, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the issues on appeal, in order to afford the Veteran every possible consideration. For VA purposes, total disability exists when there is any impairment of the mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. A total disability rating may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for a TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). 38 C.F.R. § 4.16(a) provides that consideration of such a rating is warranted if a veteran has one service-connected disability rated 60 percent or more or, if there are two or more such disabilities, there must be at least one that is rated 40 percent or more, with all disabilities combining to 70 percent or more. 38 C.F.R. § 4.16(a). In the case at hand, the Veteran is presently service-connected for right ankle tendinitis with foot drop, status post surgery, rated as 40 percent disabling, and left ankle tendinitis, rated as 10 percent disabling. He is also service-connected for scar, status post removal of bone spur, right ankle tendinitis, rated as non-compensably disabling. His combined disability rating is 50 percent. As such, he does not meet the schedular requirements for eligibility for a TDIU rating. Id. Nonetheless, all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the TDIU threshold percentage standards, should be referred to the Director of Compensation Service for extraschedular consideration. 38 C.F.R. § 4.16(b). In this regard, the Board cannot consider entitlement to TDIU under 38 C.F.R. § 4.16(b) in the first instance but must first remand the claim for referral to VA's Director of Compensation Service if such consideration is warranted. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Recently, the Court addressed the appropriate standard for the Board to apply in determining whether to remand the issue of entitlement to a TDIU pursuant to 38 C.F.R. § 4.16(b) for referral to the Director. Ray v. Wilkie, 31 Vet. App. 58 (2019); see also Snider v. McDonough, No. 19-6707 (Nov. 19, 2021). The question for the Board is whether there is sufficient evidence to substantiate a reasonable possibility that a Veteran is unemployable by reason of his service-connected disabilities. Id. In this case, there is sufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable due to his service-connected disabilities. While the Veteran has not filed a VA Form 8940 Application for Increased Compensation Based on Unemployability, the Board was able to garner enough information about his education and employment from his Social Security Administration (SSA) application. His highest level of education is two years of college. He reportedly last worked in May 2016. He worked from 2001 to 2016 as a radiology technologist; he made $27/hour. The record reflects that in conjunction with his application for SSA disability, the Veteran submitted treatment records from his physician at Top Doctor Therapy Center. One treatment note concluded that, based on his various medical conditions (including right foot drop), "it is reasonably medical necessary for...cessation of occupational demand." Moreover, the Veteran's sole employment for the past 15 years has been as a radiology technologist, having no experience in other fields of employment. The demands of this profession (including standing, lifting patients, walking, etc.) are "impossible" for him to perform, due to his right foot drop and left ankle tendonitis. Based on these contentions, the Board finds that there is sufficient evidence to substantiate a reasonable possibility that a Veteran is unemployable by reason of his service-connected disabilities. Consequently, a remand for entitlement to a TDIU pursuant to 38 C.F.R. § 4.16(b) for referral to the Director is warranted. The matters are REMANDED for the following action: 1. The AOJ should refer the Veteran's claim of entitlement to TDIU on an extraschedular basis to the Director of Compensation Service to determine whether an extraschedular rating is warranted under 38 C.F.R. § 4.16(b). 2. Thereafter, readjudicate the claim. If any benefit sought on appeal remains denied, furnish the Veteran and his representative, if any, a supplemental statement of the case and an appropriate period of time to respond. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Victoria A. Banis, 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.