Citation Nr: 21011999 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 16-12 785 DATE: March 3, 2021 ORDER A rating in excess of 10 percent prior to July 12, 2019 for left ankle chronic Achilles tendonitis is denied. A rating of 20 percent, and no higher since July 12, 2019 for left ankle chronic Achilles tendonitis is granted. FINDINGS OF FACT 1. During the rating period prior to July 12, 2019, the Veteran’s service-connected left ankle chronic Achilles tendonitis was not manifested by at least marked limitation of motion (under the old or new rating criteria) without arthritis. 2. During the rating period since July 12, 2019, the Veteran’s service-connected left ankle chronic Achilles tendonitis has been manifested by at least marked limitation of motion (under the old rating criteria prior to February 7, 2021) without arthritis and ankylosis CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent prior to July 12, 2019 for service-connected left ankle chronic Achilles tendonitis have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7 (2019); 38 C.F.R. § 4.71a, Diagnostic Code 5024-5271 (prior to February 7, 2021); 38 C.F.R. § 4.71a, Diagnostic Code 5024-5271 (since February 7, 2021). 2. The criteria for entitlement to a rating of 20 percent, and no higher since July 12, 2019 for left ankle chronic Achilles tendonitis have been satisfied. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7; 38 C.F.R. § 4.71a, Diagnostic Code 5024-5271 (prior to February 7, 2021); 38 C.F.R. § 4.71a, Diagnostic Code 5024-5271 (since February 7, 2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from June 1972 to June 1975 and in the United States Air Force from April 1987 to July 1987 and October 1990 to November 1990. The case was remanded for additional evidentiary development in October 2019, and there was substantial compliance with these remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, the Agency of Original Jurisdiction (AOJ) provided the Veteran a VA examination for ankle conditions in December 2019 and readjudicated the case in a July 2020 supplemental statement of the case (SSOC). The December 2019 examination report is adequate because it provides his ankle disability in detail sufficient to allow the Board to make a fully informed determination. The case has been returned to the Board for appellate review. Neither the Veteran nor his representative have raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Entitlement to a rating in excess of 10 percent for left ankle chronic Achilles tendonitis Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, 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. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the veteran’s favor. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, such as for the service-connected left ankle disability in this case, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. On February 28, 2013, the Veteran’s request for a higher rating for the issue on appeal was obtained and associated with the record. The Board considers whether a rating in excess of 10 percent for left ankle chronic Achilles tendonitis is warranted at any time since or within one year prior to the date of claim on February 28, 2013. See 38 C.F.R. § 4.71a, Diagnostic Code 5024-5271. Diagnostic Criteria During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised select Diagnostic Codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. Id. As previously noted, the Veteran’s service-connected left ankle chronic Achilles tendonitis is currently rated under Diagnostic Code 5024-5271. See 38 C.F.R. § 4.71a. Review of the portion of the rating schedule that addresses the musculoskeletal system revised effective February 7, 2021 shows that Diagnostic Codes 5024 and 5271 were changed. As a result, the Board will consider the Veteran’s claim under Diagnostic Code 5024 and 5271 pursuant to the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. Again, the criteria that is more favorable to the Veteran will be applied. A. Diagnostic Code 5024 Prior to the regulatory change, Diagnostic Code 5024 provides for tenosynovitis. The diseases under diagnostic codes 5013 through 5024 will be rated on limitation of motion of affected parts, as arthritis, degenerative, except gout which will be rated under Diagnostic Code 5002. As of February 7, 2021, under the amended criteria, Diagnostic Code 5024 provides for tenosynovitis, tendinitis, tendinosis, or tendinopathy. Evaluate the diseases under diagnostic codes 5013 through 5024 as degenerative arthritis, based on limitation of motion of affected parts. In this case, the Veteran does not have arthritis in the left ankle, as noted in September 2013 and December 2019 VA examination reports, nor have any clinical findings of gout been noted in the VA examination reports or VA treatment records. As a result, analysis under 38 U.S.C. § 4.71a, Diagnostic Codes 5002 (rheumatoid arthritis), 5003 (degenerative arthritis), and 5010 (arthritis due to trauma) (prior to February 7, 2021) are not relevant and will not be discussed further. Additionally, analysis under 38 U.S.C. § 4.71a, Diagnostic Codes 5002 (multi-joint arthritis), 5003 (degenerative arthritis), and 5010 (post-traumatic arthritis) (since February 7, 2021) are not relevant and will not be discussed further. B. Diagnostic Code 5271 Prior to the regulatory change, Diagnostic Code 5271 provides the following rating criteria for limitation of motion of the ankle: • 10 percent rating for moderate limited motion • 20 percent, the maximum available, for marked limited motion. The rating schedule does not define the terms “moderate” or “marked,” as used in Diagnostic Code 5271 to describe the degree of deformity of the ankle. Instead, adjudicators must evaluate all of the evidence and render a decision that is “equitable and just.” 38 C.F.R. § 4.6. As of February 7, 2021, under the amended criteria, Diagnostic Code 5271 provides the following rating criteria for limitation of motion of the ankle: • 10 percent rating for moderate (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion) limited motion • 20 percent, the maximum available, for marked (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion) limited motion. For VA compensation purposes, normal ranges of motion of the ankle are dorsiflexion from 0 degrees to 20 degrees and plantar flexion from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II (prior to and since February 7, 2021). Additionally, 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 background 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.”). Evidence and Analysis under Diagnostic Code 5271 Review of the evidentiary record since February 28, 2012 (one year prior to the date of claim) documents the following musculoskeletal symptomatology of the left ankle chronic Achilles tendonitis. In a June 2013 VA Form 21-4142, the Veteran reported his medication is helpful but when it wears off his Achilles tendon swells and stiffens up. At the September 2013 VA examination for ankle conditions, the Veteran reported current symptoms of daily pain and swelling, a limp due to excruciating pain, and flare-ups described as stiffness, weakness, and excruciating pain. He also reported received treatment and medications at a VA treatment facility. Upon clinical evaluation of the left ankle, he demonstrated painful dorsiflexion to 10 degrees and plantar flexion to 30 degrees, both without additional loss of motion with pain and after repetitive use testing. The VA examiner further noted findings of additional limitation of functional ability of the ankle joint during flare-ups or repeated use over time; however, the additional limitation is described as pain and decreased range of motion, especially when climbing stairs or attempting to squat or knees, but explained why he was unable to provide degrees of additional range of motion loss without speculation. The examiner explained that the additional limitation from flare ups could not be estimated because the Veteran reported that the additional limitation varies. While there were findings of less movement than normal, pain on movement of the left ankle, weakness, fatigability, and/or coordination, there were no findings of use of an assistive device, impaired muscle strength for both plantar and dorsiflexion, instability, or ankylosis. The examiner also found that the left ankle condition did not result in functional impairment such that no effective function remained than that which would be equally well served by amputation and a prosthesis. Review of VA treatment records dated during the appeal period shows history of left Achilles tendon rupture as stable and on pain medication when necessary in May 2012 and June 2013, August 2016, August 2017, and July 2018. X-ray results of the left ankle in October 2013 noted no acute osseous abnormality and characterized as unremarkable. In November 2013, the Veteran requested compression stockings and clinical evaluation revealed pain decreased with active range of motion and increased with standing and wearing wrong shoes, use of ointment for swelling, and no abnormal gait or use of assistive device. Additionally, reported left ankle pain and use of pain medication was further noted in April 2014, walks with a limp on the right lower extremity in May 2016, continues to walk 5 to 10 miles a day without symptoms to work as a car salesman in August 2017 and July 2018, lots of left sided atrophy in July 2018, and need for compression stockings in March 2019. At the July 12, 2019 Board hearing, the Veteran affirmed to experiencing daily pain, weakness, tingling, swelling, stiffness, instability, decreased range of motion in the left ankle, as well as bruising and swelling caused by the left ankle rolled to the inside or outside and having issues standing for long periods of time. The Veteran reiterated his use of compression socks and ankle brace. He further noted that since the last VA examination in 2013, he has constant pain, cannot drive long distances, and experiences tightness after sitting for a long period of time. Most recently at the December 2019 VA examination for ankle conditions, the Veteran reported current symptoms of chronic stiffness especially in the mornings, constant pain, avoidance of long time (approximately 30 minutes) standing and walking due to pain, avoidance of walking for more than 30 minutes before sitting, decreased ability to drive long distance (approximately 45 minutes), and less ability with squatting. The Veteran also reported use of compression stockings and additional compression with ACE wrap on top every other day, use of pain relief cream, spending 10 to 15 minutes of stretching and maneuvers to loosen up the joint, soaking the ankle three days a week with Epsom salts and alcohol, as well as denied any falls, instability, or use of a cane. He further specified having flare-ups of the left ankle described as swelling of the left Achilles if weigh bearing of long duration until relief such as soak. Upon clinical evaluation of the left ankle, he demonstrated active dorsiflexion to 5 degrees and active plantar flexion to 20 degrees, both with pain causing functional loss descried as less ability to walk quickly and climb. The VA examiner noted the examination is medically consistent with the Veteran’s statements describing functional loss with repetitive use over time and that while pain causes this functional loss there was no further loss in range of motion due to such pain. The VA examiner also noted the examination is neither medically consistent or inconsistent with the Veteran’s statement describing functional loss during flare up. The examiner estimated his range of motion during a flare-up as dorsiflexion to 10 degrees and plantar flexion to 15 degrees. While there were additional findings of disturbance of locomotion, interference with standing, painful weight bearing especially when walking, and reported regular use of compression sleeve and ACE wrap when leaving the home, there were no findings of additional limitation in range of motion following repetitive-use testing crepitus, pain on non-weight bearing, reduction in muscle strength for both plantar and dorsiflexion, instability, muscle atrophy, or ankylosis. Passive dorsiflexion was 15 degrees and passive plantar flexion was 35 degrees. These ranges of motion are not more favorable to the Veteran. The VA examiner also found that the left ankle condition did not result in functional impairment such that no effective function remained than that which would be equally well served by amputation and a prosthesis, and indicated there was a worsening of the Veterans symptoms however no change to the diagnosis and no additional diagnoses were rendered. With regard to the appeal period prior to the Board hearing on July 12, 2019, the Board finds that the functional equivalent of marked limitation (under the old rating criteria) or marked limitation by less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion (under the new rating criteria) was not shown at any time, even when considering the Veteran’s reported symptomatology for the service-connected left ankle chronic Achilles tendonitis. He demonstrated decreased range of motion (dorsiflexion at worst to 10 degrees on active motion and active plantar flexion at worst to 30 degrees), swelling, stiffness, limping, weakness, less movement than normal, painful movement, fatigability, coordination, use of compression stockings, which is contemplated in the currently assigned 10 percent disability rating under the old and new crating criteria. Additionally, while a July 2018 VA treatment record noted “lots of left sided atrophy,” the subsequent VA examination report in December 2019 documents no clinical findings of atrophy of disuse on the left side. To meet the next-higher and maximum rating of 20 percent, marked limitation (under the old rating criteria) or marked limitation by less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion (under the new rating criteria) would need to have been shown. See 38 C.F.R. § 4.71a, Diagnostic Code 5271 (prior to and since February 7, 2021). Moreover, the Veteran’s reported symptomatology did not, when viewed in conjunction with the medical evidence, tend to establish additional limitations of motion to the degree that would warrant the next-higher and maximum rating of 20 percent at any time during the appeal period prior to July 12, 2019 under 38 C.F.R. §§ 4.40, 4.45 and the holdings in DeLuca and Mitchell. As such, the Board finds that a rating in excess of 10 percent for the service-connected left ankle chronic Achilles tendonitis is not warranted at any time during the appeal period from February 28, 2012 to July 11, 2019. See 38 C.F.R. §§ 4.6, 4.71a, Diagnostic Code 5271 (prior to and since February 7, 2021). With regard to the appeal period since the Board hearing on July 12, 2019, the Board finds that the service-connected left ankle chronic Achilles tendonitis more closely approximates marked limitation of motion under the old rating criteria, which is more favorable to the Veteran, thus a 20 percent rating is warranted during the appeal period since July 12, 2019. 38 C.F.R. § 4.71a, Diagnostic Code 5271 (prior to February 7, 2021). As of the Board hearing, review of the evidentiary record shows that symptomatology of the Veteran’s left ankle disability includes decreased range of motion (dorsiflexion at worst to 5 degrees on active motion and plantar flexion at worst to 15 degrees during flare up), pain, weakness, tingling, swelling, stiffness, bruising, difficulty standing for long periods of time, use of compression socks/stockings and brace, difficulty driving for long distances, tightness after sitting for long periods, avoidance of walking for more than 30 minutes before sitting, less ability with squatting and climbing, disturbance of locomotion, painful weight bearing especially when walking. In fact, as previously noted, the December 2019 VA examiner specifically noted “there was a worsening of the Veterans symptoms.” Additionally, while the Veteran reported at the Board hearing to experiencing instability of the left ankle, the December 2019 VA examination report shows the Veteran denied any symptomatology of instability and there were no clinical findings of instability of the left ankle. During the appeal period since July 12, 2019, to meet the next-higher 30 or 40 percent criteria, the maximum available, ankylosis of the left ankle is needed. 38 C.F.R. § 4.71a, Diagnostic Code 5270 (prior to and since February 7, 2021). Review of the medical and lay evidence of record is silent for such a finding. Although the Veteran has marked limitation of motion (under the old rating criteria), the medical evidence and his hearing testimony show that he retains mobility in the ankle. Therefore, ankylosis is not present. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992) (indicating that ankylosis is complete immobility of the joint in a fixed position, either favorable or unfavorable). As a result, the Board finds that a rating in excess of 20 percent for service-connected left ankle chronic Achilles tendonitis is not warranted in this case. Id. Moreover, given that the Veteran is already in receipt of the schedular maximum for limitation of motion of the ankle since July 12, 2019, inquiry into the DeLuca factors is moot. See DeLuca, 8 Vet. App. at 206; Johnston v. Brown, 10 Vet. App. 80, 87 (1997). Additional Considerations The Board considered the Veteran’s reported history of symptomatology related to the service-connected left ankle chronic Achilles tendonitis. The Veteran is competent to report symptoms and observations, such as pain, swelling, stiffness, because this requires only personal knowledge as it comes through one’s senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). In this case, although the descriptions of his symptoms are competent and credible, they do not show that the criteria for ratings higher than the currently assigned 10 and 20 percent for the respective appeal periods for his left ankle disability have been met. Kahana v. Shinseki, 24 Vet. App. 428 (2011). In this case, competent evidence concerning the nature and extent of the Veteran’s disability has been provided in the medical evidence of record. As such, the Board finds these records to be more probative than the Veteran’s subjective reported worsened symptomatology. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Board also considered the possibility of staged ratings and finds that the scheduler ratings for the service-connected left ankle chronic Achilles tendonitis have been in effect for appropriate periods on appeal. Accordingly, additional staged ratings are inapplicable. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Lastly, the Board notes that during the entire appeal period, the Veteran has been separately compensated for scar status post-surgical repair due to left Achilles tendon and consideration of a higher rating for that scar disability is not currently on appeal. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Carter, 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.