Citation Nr: 21030869 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 14-34 531 DATE: May 19, 2021 ORDER An initial disability rating greater than 10 percent for achilles tendonitis, left ankle is denied. An initial disability rating of 30 percent, and no higher, for muscle tension headaches is granted. FINDINGS OF FACT 1. Since the grant of service connection, the Veteran's left ankle disability has been manifested by at least 10 degrees of dorsiflexion and at least 40 degrees of plantar flexion with subjective reports of swelling and pain and objective reports of some tenderness to palpation considered to be no more than moderately disabling. 2. Since the grant of service connection, the frequency, duration, and severity of the Veteran's muscle tension headaches has been analogous to, at most, characteristic prostrating attacks occurring on an average once a month over the last several months and are not productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 10 percent for achilles tendonitis, left ankle have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5271. 2. The criteria for an initial disability rating of 30 percent, and no higher, for muscle tension headaches have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, DC 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 2007 to November 2010. These matters come before the Board of Veterans' Appeals (Board) from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan which, in part, granted service connection for left ankle and headache disabilities, assigning noncompensable disability ratings for each disability effective November 6, 2010, the day after the Veteran's discharge from military service. The Veteran disagreed with this decision and perfected this appeal. Subsequently, by rating decision dated in February 2021, the RO increased the disability rating for the Veteran's the left ankle from noncompensable to 10 percent disabling effective November 6, 2010 and increased the disability rating for the Veteran's the headaches from noncompensable to 30 percent disabling effective November 6, 2010. As these increases did not represent a full grant of the benefits sought, the Veteran's appeals with regard to the left ankle and headache disabilities have not been abrogated and the matters remain in appellate status. AB v. Brown, 6 Vet. App. 35, 38 (1993). This case was previously before the Board in November 2020 at which time it was remanded for additional development. As a preliminary matter, the Board notes that the Veteran has been unemployed at various points during the appeal period beginning November 2010. By way of history, the Veteran was discharged from military service in November 2010 and his May 2011 VA general examination shows that he was unemployed but going to school part-time. In October 2015 correspondence, the Veteran's representative wrote that the Veteran did not intend to file a claim for a total disability rating based on individual unemployability due to service-connected disability (TDIU) as the Veteran was employed at that time. However, in May 2020 correspondence, it was noted that the Veteran had been laid off from his employment effective May 27, 2020 due to a reduction in force. More recently, during January 2021 VA ankle/headache examinations, it was noted that the Veteran previously worked at a prosthetics plant and was presently unemployed but was a full-time student. As such, the Board declines to take jurisdiction of the TDIU issue at this time as there have been no allegations of unemployability due to the Veteran's service-connected left ankle/headache disabilities. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 38 C.F.R. § 4.40 notes that disability of the musculoskeletal system is primarily the inability, due to damage or infection of parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence of part or all of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. 38 C.F.R. § 4.45 provides that factors of disability involving a joint reside in reductions of its normal excursion of movements in different planes of motion and therefore, inquiry will be directed to such considerations as weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); excess fatigability; and incoordination (impaired ability to execute skilled movements smoothly). 38 C.F.R. § 4.45. The United States Court of Appeals for Veterans Claims (Court) has held that when a diagnostic code provides for compensation based upon limitation of motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must also be considered, and that examinations upon which the rating decisions are based must adequately portray the extent of functional loss due to pain "on use or due to flare-ups." DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Also, the Court has held that "to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of" 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158 (2016). 38 C.F.R. § 4.59 states that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." As such, pursuant to Correia, an adequate VA joints examination must, wherever possible, include range of motion testing on active and passive motion and in weight-bearing and nonweight-bearing conditions. Effective February 7, 2021, several changes to the diagnostic codes used for rating musculoskeletal disabilities were made. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020). When a law or regulation changes after a claim has been filed or reopened, but before the administrative or judicial appeals process has been concluded, the version of the law or regulation most favorable to the appellant generally applies. Only the former criteria can be applied for the period prior to the effective date of the new criteria. However, both the old and new criteria can be applied as of that date. See VAOPGCPREC 7-2003 (Nov. 19, 2003); see also 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114. While the Veteran has not yet been notified of all applicable regulatory changes and considered his claim under such regulations, the Board notes that the rating criteria prior to February 7, 2021 pertaining to the ankles are significantly more favorable to the Veteran. As such, there is no prejudice to the Veteran in the Board considering the ankle claim at this time. 1. An initial disability rating greater than 10 percent for achilles tendonitis, left ankle is denied. The Veteran seeks a higher disability rating for his service-connected left ankle disability. By way of history, the Veteran's service treatment records show that he was treated for achilles tendonitis of the ankles in March 2010. He submitted an initial claim for service connection for a left ankle disability in September 2010 (while he was still in service) and, by rating decision dated in December 2011, the RO granted service connection for achilles tendonitis, left ankle, assigning a noncompensable disability rating effective November 6, 2010. The Veteran disagreed with this decision and perfected this appeal. Subsequently, by rating decision dated in February 2021, the RO increased the disability rating for the Veteran's the left ankle from noncompensable to 10 percent disabling, also effective November 6, 2010. The Veteran's left ankle disability is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5271 for ankle limitation of motion. Specifically, DC 5271 provides for a 10 percent rating where there is moderate limitation of ankle motion and a 20 percent rating where there is marked limitation of ankle motion. Notably, normal ankle dorsiflexion is from 0 to 20 degrees and normal plantar flexion is from 0 to 45 degrees. 38 C.F.R. § 4.71a. Plate II. Also relevant are DCs 5270, 5272, 5273, and 5274. DC 5270 pertains to ankylosis of the ankle and provides for a 20 percent rating where there is ankylosis of the ankle in plantar flexion, less than 30 degrees. A 30 percent rating is warranted where there is ankylosis of the ankle in plantar flexion, between 30 degrees and 40 degrees, or in dorsiflexion, between zero degrees and 10 degrees. A 40 percent rating is warranted where there is ankylosis of the ankle in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion or eversion deformity. DC 5272 pertains to ankylosis of the subastragalar or tarsal joint, and provides for a 10 percent rating where such is in good weight-bearing position and a 20 percent rating where such is in poor weight-bearing position. DC 5273 pertains to malunion of the os calcis or astragalus, and provides for a 10 percent rating where there is moderate deformity and a 20 percent rating where there is marked deformity. DC 5274 provides for a 20 percent rating for an astragalecotmy. Notably, beginning February 7, 2021 DC 5271 clarifies the meanings of marked and moderate. Specifically, a 10 percent rating where there is moderate (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion) limitation of ankle motion and a 20 percent rating where there is marked (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion) limitation of ankle motion. Evidence relevant to the severity of the Veteran's left ankle disability during the appeal period includes VA examination reports dated in May 2011 and January 2021, and the Veteran's lay statements. During the May 2011 VA general examination, the Veteran reported that, in 2010, after prolonged running and marching, he developed throbbing pain in his left posterior ankle and heel, sought medical attention, and was diagnosed with tendonitis. He continued to experience episodic pains in the left ankle, exacerbated by running more than 10 minutes. He had not sought care for his left ankle disability since his discharge in November 2010. The Veteran complained of pain, stiffness, and limited motion. There were also flare-ups of joint disease, precipitated by playing basketball and/or running on the pavement and alleviated by rest. The flare-ups occurred once every two to three weeks, each lasting one to two days, and were of "moderate" severity. During these flare-ups, the Veteran avoided high intensity activities, running, and sports until the pain subsided. The Veteran used orthotic inserts to treat his left ankle disability. On physical examination of the ankles, the Veteran had grade 5 muscle strength of the lower extremities with no atrophy or spasms. There was no joint swelling, effusion, tenderness, or laxity. There was also no joint prosthesis, ankylosis, or any other objective joint abnormality. There was also no evidence of arthritis. On range of motion testing of the left ankle, the Veteran had 20 degrees of dorsiflexion and 45 degrees of plantar flexion. There was no objective evidence of pain on active motion and no pain on motion after at least three repetitions of range of motion. Thompson squeeze test for achilles tendon injury was negative, bilaterally. The examiner diagnosed Achilles tendonitis, exacerbated with running and noted that the Veteran had been assigned different duties due to his disability due to pain. According to the examiner, the Veteran's ankle disabilities prevented sports, had a moderate impact on chores, shopping, as well as exercise, and mildly impacted recreation and traveling. It was noted that the Veteran was not currently employed but was a part-time student. During the January 2021 VA ankle examination, the Veteran reviewed the claims file and continued a diagnosis of left ankle tendonitis. At that time, the Veteran denied any treatment for his left ankle but indicated that his symptoms had remained constant over the last several years. Specifically, with driving, walking, prolonged standing, or playing sports, the left ankle throbs posterior to the malleolus and achilles. The pain is typically relieved with rest and, when the Veteran begins to notice pain, he will try to stop his activity and rest. He treated his left ankle disability with home stretches, shoe inserts, and medical marijuana. The Veteran reported experiencing flare-ups of the left ankle with exercising, running, jump squats, and prolonged standing which causes throbbing pain to the left ankle just above the feel. According to the Veteran, these flare-ups occurred two to three times per week, were of a moderate severity, and lasted less than one day. The Veteran also reported experiencing functional loss/impairment of the left ankle, described as an inability to drive, stand, or walk for prolonged periods of time. He was no longer able to run or play basketball. On range of motion testing, the Veteran had left ankle dorsiflexion from 0 to 10 degrees and plantar flexion from 0 to 40 degrees. There was no objective evidence of localized tenderness or pain on palpation of the joint associated with soft tissue, no evidence of pain with weight bearing, and no objective evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions and no additional loss of function or range of motion after three repetitions. The Veteran's left ankle was not examined immediately after repetitive use over time and/or during a flare-up and the examiner found that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time or during a flare-up. Neither pain, weakness, fatigability, or incoordination significantly limited the Veteran's functional ability with repeated use over a period of time and/or during a flare-up. Muscle strength testing was normal and there was no reduction in muscle strength or muscle atrophy. There was no ankylosis. Ankle instability/ dislocation were not suspected. There was no evidence of "shin splints," stress fractures, achilles tendonitis, achilles tendon rupture, malunion of calcaneus (os calcis) or talus (astragalus), or talectomy (astragalectomy). There were no other pertinent physical findings, complications, conditions, signs, or symptoms related to the left ankle, to include scars. The Veteran did not use an assistive device as a normal mode of locomotion. There was no functional impairment of an extremity such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. Imaging studies were negative for arthritis and there were no other significant diagnostic test findings. Significantly, the examiner found that the Veteran's left ankle disability impacted his ability to perform occupational tasks such as standing, walking, lifting, and sitting. Specifically, it was noted that the Veteran previously worked at a prosthetics plant but was currently a full-time student. The Veteran had last one week of school within the last 12 months and, because of the Veteran's left ankle disability, he would have difficulty with positions that require prolonged walking, standing, or driving. With regard to Correia, the examiner noted that there was objective evidence of pain on passive range of motion testing but no objective evidence of pain when the joint is used in non-weight bearing. Also, of record are VA and private treatment records dated through December 2019. Significantly, these records show treatment for the Veteran's left ankle, to include the use of medical marijuana to treat his left ankle pain as early as 2011, but are negative for any range of motion findings. Based on the foregoing, the Board finds that a disability rating greater than 10 percent for the Veteran's left ankle disability is not warranted. Significantly, the Veteran's left ankle disability is productive of no more than moderate limitation of motion. As above, during the May 2011 VA ankle examination, the Veteran had dorsiflexion to 20 degrees and plantar flexion to 45 degrees (normal range of motion in both planes). During the January 2021 VA examination, the Veteran had dorsiflexion to 10 degrees out of 20 degrees and plantar flexion to 40 degrees out of 45 degrees. Such findings demonstrate only moderate limitation of motion, even considering the Veteran's complaints of pain. Therefore, the overall disability picture presented by the Veteran's left ankle disability is that of moderate limitation of motion, which is appropriately rated as 10 percent disabling under DC 5271. The Veteran's disability picture does not present such severe limitation of motion to the ankle to be characterized as marked limitation. Thus, a 20 percent disability rating under DC 5271 is not warranted. Furthermore, there is no indication of either ankylosis, ankylosis of the subastragalar or tarsal joint, malunion of the os calcis or astragalus, or astragalectomy such that DCs 5270, 5272, 5273, and 5274 are not for application. There are no other alternative diagnostic codes under 38 C.F.R. § 4.71a that could apply to the Veteran's left ankle disorder. With regard to the potential for a higher rating based on additional loss of motion due to flare-ups of the left ankle pursuant to Sharp, while the Veteran reported experiencing flare-ups during the January 2021 VA examination, the guidance on how to evaluate flare-ups has not been particularly clear and, pursuant to Mitchell, flare-ups must be quantifiable and must result in limitation of motion of function beyond that contemplated by the already provided evaluation. Additionally, because there is a regulation addressing the stabilization of ratings, flare-ups must be of such length as to establish that the overall impairment is more severe than currently evaluated. The statements made in this case do not show that any flare-ups or repeated use over time additionally limited function in a quantifiable way, nor did they show that they are of such length or duration that a higher or staged rating would not violate the rule regarding stabilization of ratings. Significantly, there is no rational basis to make a notation regarding any additional losses of function or motion during a flare-up. The Board accepts that the Veteran has functional impairment, pain, and pain on motion (see DeLuca) and finds the Veteran's own reports of symptomatology to be credible. However, neither the lay nor medical evidence reflects the functional equivalent of symptoms required for a higher rating. The more probative evidence consists of that prepared by neutral skilled professionals, and such evidence demonstrates that the currently assigned 10 percent rating is warranted and no more. As the preponderance of the evidence is against a rating in excess of 10 percent for the left ankle at any time during the appeal period, the claim is denied. 2. An initial disability rating of 30 percent, and no higher, for muscle tension headaches is granted. The Veteran seeks a higher disability rating for his service-connected headache disability. By way of history, the Veteran's service treatment records show that he began complaining of headaches after experiencing a TBI in 2009. He submitted an initial claim for service connection for a headache disability in September 2010 (while he was still in service) and, by rating decision dated in December 2011, the RO granted service connection for muscle tension headaches, assigning a noncompensable disability rating effective November 6, 2010. The Veteran disagreed with this decision and perfected this appeal. Subsequently, by rating decision dated in February 2021, the RO increased the disability rating for the Veteran's the headaches from noncompensable to 10 percent disabling effective June 3, 2018, the date of a private treatment record showing chronic recurrent headaches which are severe, debilitating, throbbing, and last for hours. The Veteran's muscle tension headaches are rated under 38 C.F.R. § 4.12a, DC 8100. Under DC 8100, migraines are evaluated as follows: a noncompensable rating is assigned with less frequent attacks; a 10 percent rating is assigned with characteristic prostrating attacks averaging one in 2 months over last several months; a 30 percent rating is assigned with characteristic prostrating attacks occurring on an average once a month over last several months; and, a 50 percent rating is assigned with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100. Evidence relevant to the severity of the Veteran's headaches during the appeal period includes VA examination reports dated in May 2011 and January 2021. During the May 2011 VA general examination, the Veteran reported that, after his return from deployment to Afghanistan in 2009, he developed frontal headaches exacerbated by lack of sleep and relieved by sleep. Significantly, the Veteran reported experiencing a traumatic brain injury (TBI) in 2009 with no loss of consciousness. The examiner noted that the Veteran had been evaluated by neurology in April 2011 for TBI and the neurologist felt that the Veteran's headaches were "muscle contraction versus post-traumatic type" and his neurological examination was found to be "completely normal." The Veteran reported that his headaches were episodic, occurring twice per month, and relieved with smoking a little marijuana. No pain medication, other than marijuana, was required. The headaches were not debilitating and were less severe than when he was in service. On neurologic examination, there was no history of weakness/paralysis, paresthesias, numbness, memory loss, poor coordination, vision loss, speech difficulties, or other symptoms. The examiner diagnosed muscle tension headaches exacerbated by inability to get a full night's sleep and noted that the Veteran had been assigned different duties due to his disability. His headaches effected his occupational activities in that they resulted in decreased concentration, lack of stamina, weakness or fatigue, and pain. According to the examiner, the Veteran's headaches had a moderate impact on chores, shopping, exercise, as well as sports, and mildly impacted recreation and traveling. It was noted that the Veteran was not currently employed but was a part-time student. During the January 2021 VA headaches examination, the examiner reviewed the claims file and continued a diagnosis of muscle tension headaches. The Veteran reported experiencing continued headaches since service. He had tried several medications, to include medications to help him sleep as lack of sleep was identified as a trigger. While in service and directly after his discharge, the Veteran was experiencing 405 headaches per month but waw now experiencing headaches one to two times per month. He had treated his headaches since 2011 with medical marijuana and over-the-counter analgesics which could symptoms after a few hours. The examiner noted that the Veteran's headaches require taking medication, specifically Motrin, Tylenol, or Excedrin and that the Veteran did use medical marijuana. The Veteran's headaches were described to be pulsating or throbbing head pain as well as neck/head pain that was either diffuse on the entirety of the scalp or unilateral. It was also noted that the Veteran experienced nausea as well as sensitivity to light/sound during his headaches. The Veteran experienced head pain less than one time per day. Significantly, the examiner wrote that the Veteran experienced characteristic prostrating attacks of migraine/non-migraine headache pain once every month. However, these attacks were not very prostrating and prolonged attacks and were not productive of severe economic inadaptability. There were no other pertinent physical findings. Significantly, the examiner found that the Veteran's headache disability impacted his ability to perform occupational tasks. Specifically, it was noted that the Veteran previously worked at a prosthetics plant but was currently a full-time student. The Veteran had last one to two weeks of school within the last 12 months. Specifically, he would have to leave mid-day several times when he was working and, when he was having a headache, he was unable to be around loud noises or bright lights. He had to go home and lay down in a dark space. Also of record are VA and treatment records dated through December 2019. Significantly, these records show a history of headaches and show that the Veteran has been using medical marijuana to treat his headaches since, at least, 2011. Upon review of the above evidence, the Board finds that a disability rating of 30 percent, but no higher, is warranted for the Veteran's chronic migraines during the entire appeal period beginning November 6, 2010. Significantly, as early as the May 2011 VA examination the Veteran has reported experiencing significant headaches two times per month and the January 2021 VA examiner wrote that the Veteran's headaches were characteristic prostrating attacks of migraine/non-migraine headache pain. As for the potential for an even higher rating than 30 percent, the next higher rating of 50 percent under DC 8100 requires evidence of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Significantly, a review of the record shows that the Veteran had steady employment history until May 2020 when he was laid off due to laid off due to a reduction in force and is currently a full-time student. Such an employment history not indicative of severe economic inadaptability and is already contemplated in the assigned evaluation of 30 percent. Consideration has been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A review of the record does not show any additional functional impairment associated with the Veteran's service-connected tension headaches so as to warrant consideration of alternate rating codes. In making its rating determination above, the Board has also carefully considered the Veteran's contentions with respect to the nature of his headaches, and notes that his lay testimony is competent to describe certain symptoms associated with such disability. The Veteran's history and symptom reports have been considered, including as presented in the medical evidence discussed above, and has been contemplated by the disability ratings that have been assigned for his headaches. Moreover, the competent medical evidence offering detailed specific findings pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms of the service-connected disability addressed above. As such, while the Board accepts the Veteran's testimony with regard to the matters he is competent to address, the Board relies upon the competent medical evidence with regard to the specialized evaluation of functional impairment, symptom severity, and details of clinical features of the headaches at issue. The Veteran's noncompensable rating is increased to 30 percent from the date of service connection. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board April Maddox, 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.