Citation Nr: 21031708 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 12-14 177 DATE: May 24, 2021 ORDER Entitlement to a disability rating greater than 10 percent for left achilles tendonitis is denied. Entitlement to a TDIU effective September 24, 2012, is granted. FINDINGS OF FACT 1. For the entire period on appeal, the service-connected left achilles tendonitis was not manifested by marked limitation of motion, marked deformity, or ankylosis. 2. Prior to September 24, 2012, the service-connected disabilities did not preclude the Veteran's employability. 3. Beginning September 24, 2012, the service-connected disabilities, alone or in combination, rendered the Veteran unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 10 percent for left achilles tendonitis have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5257 (2020). 2. The criteria for entitlement to a TDIU effective September 24, 2012, have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from June 1977 to June 1980. This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has a long procedural history. In January 2015 and July 2017, the increased rating claim for left achilles tendonitis was before the Board at which time that issue was remanded for additional development. In October 2019, the Board denied the increased rating claim for left achilles tendonitis. The Veteran appealed the October 2019 Board decision and the parties agreed to a Joint Motion for Remand (JMR). In May 2020, the United States Court of Appeals for Veterans Claims (Court) granted the JMR and remanded the case so the Board could provide adequate reasons and bases for their denial and for consideration of a TDIU which the Court found had been raised by the record. Increased Rating Claim The Veteran asserts that the symptoms of his left ankle achilles tendonitis are more severe than that contemplated by the currently assigned rating. He currently is in receipt of a 10 percent rating for his service-connected left ankle pursuant to DC 5271. DC 5271 evaluates range of motion in the ankle. A 10 percent rating is assigned for moderate limitation of motion, and a 20 percent rating is assigned for marked limitation of motion. The Board notes that, for the rating code in effect prior to February 7, 2021, the words such as moderate and marked were not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. During the pendency of this appeal, VA amended its regulations with respect to the Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5271). Where a law or regulation changes after the claim has been filed, but before the administrative or judicial process has been concluded, the version most favorable to the Veteran applies unless Congress provided otherwise or permitted VA to do otherwise and VA did so. See VAOGCPREC 7-2003. The case law is clear that a regulation is not to be applied retroactively unless the regulation is intended to be retroactive. Ervic v. Shinseki, 24 Vet. App. 318, 322 (2011) (citing Kumza v. Principi, 341 F.3d 1327, 1328 (Fed. Cir. 2003)). Here, the recently revised musculoskeletal regulations do not provide for retroactive application; thus, the amendments may be applied as of, but not prior to, February 7, 2021. Hence, for the period beginning February 7, 2021, the version more favorable to the Veteran will apply. Under DC 5271, effective February 7, 2021, a 10 percent rating is warranted for moderate limitation of motion which is defined as less than 15 degrees of dorsiflexion or less than 30 degrees of plantar flexion. A 20 percent disability rating is warranted for marked limitation of motion, which is defined as less than 5 degrees of dorsiflexion and less than 10 degrees of plantar flexion. The Board finds that the amended DC 5271, effective from February 7, 2021, is not more favorable to the Veteran. Accordingly, further discussion is not necessary. A 20 percent rating is the maximum schedular rating available under DC 5271. 38 C.F.R. § 4.71a. To warrant a higher rating, the Veteran's left ankle disability must be manifested by ankylosis. Id. Here, although he has limited ankle motion, the ankle is not fixed. The Veteran does not contend and the record evidence does not show that the left ankle is ankylosed. Further, because the left ankle disability is assigned the maximum rating based on limitation of motion, the DeLuca criteria are not applicable. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997); see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). DC 5270 evaluates ankylosis of the ankle. DC 5272 evaluates ankylosis of the subastragalar or tarsal joint. DC 5273 evaluates malunion of the os calcis or astragalus, and DC 524 evaluates astraglectomy, or removal of the talus bone. As the record contains no evidence of any of these disabilities in the left ankle, and as the Veteran has not described symptoms that are suggestive of these disabilities, these DCs are not applicable and will not be discussed further. In March 2010, the Veteran was afforded a VA examination for the feet. He reported that he had constant burning pain in his heels and swelling, predominantly in the arch of his feet. He also reported that the pain was worsened by standing or walking for five minutes or more and that he has flare-ups that were productive of an increase in symptoms only once or twice per month. The VA examiner noted that the Veteran's claims file was not available for review. This examiner measured the left foot range of motion as follows, dorsiflexion limited to 20 degrees, which was limited by reported pain; plantar flexion limited to 20 degrees limited by reported pain. The VA examiner also noted that the left foot heel and arch was tender to palpation. In August 2010, a VA podiatry treatment note documented the Veteran's reports of some achilles pain in his bilateral feet but feeling as though there was some improvement. In October 2010, a radiology report revealed a normal left ankle. In an October 2010 VA podiatry note, a VA podiatrist, Dr. S.H., objectively assessed that the Veteran had moderate to severe bilateral discomfort to palpation of the posterior and middle one-third of the calcaneus bilateral heel. Dr. S.H., noted that the achilles showed no clinical evidence of a tear or rupture on either extremity. Ultimately, Dr. S.H. assessed that the Veteran had sinus tarsi syndrome, unexplained ankle pain, insertional achilles tendonitis of the bilateral heel and PF. Dr. S.H. noted that the Veteran's complaints were diffuse, multiple and atypical. In December 2011, a treatment note documented that the Veteran complained of bilateral anterior lateral ankle pain with the left worse than the right. In March 2012, an magnetic resonance imaging (MRI) scan of the left foot and ankle revealed mild/moderate posterior tibial and flexor hallucis longus tenosynovitis, C-shaped morphology the inframalleolar peroneus brevis tendon consistent with a short segment split tear, peritenonitis of the achilles tendon, mild chondrosis at the medical tibial plafond, no MRI evidence for anterior impingement, and probable old deltoid ligament injury. In April 2012, a private treatment note documented that the Veteran complained of bilateral ankle pain with the right worse than the left. At that time, it was noted that he wore an elastic ankle support on his right ankle and had pain to palpation of the anterior lateral right ankle. No issues with the left ankle were documented. In a May 2012 private medical statement, Dr. W.R. assessed that the Veteran had significant loss of range of motion in his right ankle, less on the left, with pain and guarding noted on the right as well. Dr. W.R. also found that there was pain to palpation of the anterior lateral ankle joint. In a February 2015 private treatment note, the Veteran was noted as presenting with a complaint of bilateral ankle pain with the right worse than the left. At that time, it was noted that he had experienced some improvement with ankle joint injections, but no prolonged relief and he denied achilles tendon pain. Dr. T.W.R. assessed that the Veteran's range of motion was severely limited by his discomfort but that due to pain and guarding on examination he could not fully assess the degree of ankylosis in the ankle joints. Dr. T.W.R. noted that the decreased range of motion appeared to have a profoundly negative effect on his ability to perform daily activities. Dr. T.W.R. also noted that the Veteran had an osteochondral injury and defect secondary to his remote injury that did not appear to be related to any achilles tendon injury or inflammation. In April 2015, the Veteran was afforded a VA examination for ankle conditions. At that time, the VA examiner noted that left ankle dorsiflexion limited to 20 degrees and plantar flexion limited to 45 degrees. There was no pain noted on examination and no evidence of pain with weightbearing. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the anterior aspect of the foot. The VA examiner noted that the Veteran was being examined immediately after repetitive use over time but was unable to say without mere speculation whether pain, weakness, fatigability or incoordination significantly limited the functional ability with repeated use over a period of time because it was not observed. There was no ankylosis, instability, or dislocation. There was achilles tendonitis or achilles tendon rupture but the symptoms reported during the examination were inconsistent with the conditions. The Veteran regularly used a cane. There was no functional impact on ability to perform occupational tasks. In July 2016, the Veteran underwent a private DBQ for ankle conditions. At that time, only medical issues with the right ankle were documented. In a February 2018 treatment note, it was noted that the Veteran was interested in repeat bilateral ankle imaging and a podiatry clinic consultation to determine if he was a candidate for ankle replacements. At that time, he indicated that nerve root ablation had been discussed and if no improvement that surgery may be considered. In October 2018, the Veteran was afforded a VA examination for ankle conditions. He reported that he experienced right ankle pain and swelling, but nothing with the left ankle. The range of motion for the left ankle included dorsiflexion limited to 15 degrees and plantar flexion limited to 25 degrees which contributed to functional loss. There was no pain noted upon examination, no evidence of localized tenderness or pain on palpation of the joint or the associated soft tissue, no ankylosis of the left ankle, and no assistive devices used. In a May 2019 podiatry consultation, the Veteran reported that he had been compensating for his painful right ankle and now his left foot was painful but stated that he was not interested in any surgical intervention. In June 2019, a left ankle radiograph documented a normal left ankle, but the Veteran was assessed as having left foot plantar fasciitis. In a June 2019 orthotics prosthetics consultation, the VA podiatrist noted that the Veteran had ankle pain and progressively worsening midfoot pronation for several years. Based on the foregoing, the Board finds that the preponderance of the evidence is against grating the Veteran's claim of entitlement to a disability rating greater than 10 percent for left achilles tendonitis. Taken together, the record evidence as a whole shows that the Veteran's symptoms were manifested primarily by pain and worsening pronation but no demonstrated marked limitation of motion. In fact, when compared with the Veteran's extensive complaints of the limitations of his right ankle tendonitis, the Board finds that the Veteran's reported pain and worsening pronation for his left foot achilles tendonitis were mild. He otherwise has not identified or submitted any evidence demonstrating his entitlement to a disability rating greater than 10 percent for his service-connected left achilles tendonitis. Thus, the Board finds that the criteria for a disability rating greater than 10 percent for left achilles tendonitis have not been met. TDIU The Veteran asserts that he is unable to obtain or maintain substantially gainful employment due to his service-connected disabilities throughout the appeal period. The question for the Board in this appeal is whether the Veteran is unable to secure or follow a substantially gainful occupation solely as a result of his service-connected disabilities. See 38 C.F.R. § 4.16 (2020). Prior to September 24, 2012 Prior to September 24, 2012, the Veteran did not meet the schedular criteria for assignment of a TDIU as he only had a combined rating of 60 percent. 38 C.F.R. § 4.16(a) (2020). The Board notes that a TDIU may be granted on an extraschedular basis, under 38 C.F.R. § 4.16(b), if it is established that the Veteran is unemployable on account of his service-connected disabilities but does not meet the schedular criteria. See 38 C.F.R. § 4.16(b) (2020). The Board does not have jurisdiction to authorize an extraschedular rating in the first instance but it may determine that a particular case warrants referral to the Director of Compensation Service for extraschedular consideration. Id. The evidence of record indicates that the Veteran last worked in March 2003 as a custodian and maintenance worker. He obtained his high school diploma and completed some college courses. During a March 2010 VA examination, he reported left heel pain that was worsened by standing or walking for five minutes or more. He also reported that the increased symptoms during his flare-ups occurred only once or twice per month. During a December 2011 VA examination, he reported that he had sought injections for his low back pain over a year prior to the examination, and that his worsened pain, during flare-ups, required him to lay down. The VA examiner measured the Veteran's range of motion (ROM) at 80 degrees for forward flexion and 25 degrees for extension. The VA examiner noted that the Veteran regularly used a brace for lumbar support and a cane for his reported right ankle condition. This examiner assessed that the Veteran's low back disability did not impact his ability to work. In a May 2012 private medical statement, Dr. T.W.R. stated that the Veteran had significant loss in ROM, pain and guarding, in his right ankle. Dr. T.W.R. also noted that the Veteran sought treatment from other physicians (e.g. radiographs, MRIs, injections) which offered some degree of temporary relief, but no change in his ability to perform activities of daily living for any significant time. Accordingly, for the time period prior to September 24, 2012, the Board finds that the Veteran, at a minimum, could obtain and follow substantially gainful employment. The Board also finds that any asserted limitations produced by the Veteran's service-connected disabilities were compensated adequately in his assigned ratings, resulting in his combined 60 percent rating. In that regard, the Veteran's decreased ROM and pain were not medically assessed as resulting in his inability to perform the duties of his prior employment. 38 C.F.R. § 4.16(b) (2019); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). He otherwise has not identified or submitted any evidence demonstrating his entitlement to a TDIU on an extraschedular basis prior to September 24, 2012. Therefore, the Board concludes that criteria for referral of a TDIU claim to the Director of Compensation for extraschedular consideration prior to September 24, 2012, have not been met. Beginning September 24, 2012 Beginning September 24, 2012, the Veteran had a combined rating of at least 70 percent, with one disability rated 40 percent or higher. Therefore, the Board finds that the Veteran met the schedular criteria for assignment of a TDIU beginning September 24, 2012. See 38 C.F.R. § 4.16(a) (2020). In January 2013, the Veteran was afforded a VA audiological examination. The VA examiner collectively assessed that the Veteran's hearing loss and tinnitus impacted his daily life and ability to work because he could not hear and it was hard for him to fall asleep. In a February 2015, the Veteran received a medium joint injection in the right ankle after complaints of bilateral ankle pain. Dr. T.W.R. noted that the degree of ankylosis in the ankle joints could not be assessed due to pain and guarding. Dr. T.W.R. opined that the Veteran's ROM was severely limited by his discomfort, and appeared to have a profoundly negative effect on his ability to perform the daily activities. In April 2015, the Veteran was afforded a VA examination. He did not report any flare-ups of the ankle. The VA examiner noted that the Veteran regularly used a cane but did not find that he had bilateral ankylosis, instability or dislocation. Additionally, the VA examiner assessed that the Veteran's bilateral ankle disabilities did not have an impact on his ability to perform any type of occupational task. In August 2015, the Veteran was afforded a VA examination for peripheral nerve conditions. The VA examiner noted that the Veteran used a cane and ambulated with a slight limp due to chronic left ankle pain. The Veteran refused to perform heel to toe, toe and heel walk due to reported fear of increased left ankle, back pain, and instability. There was mild intermittent pain in the right lower extremity and moderate intermittent pain in the left lower extremity and mild paresthesias and/or dysesthesias in the left lower extremity and mild numbness in the left lower extremity. The VA examiner assessed that there were no findings of radiculopathy and that the Veteran's peripheral nerve conditions did not impact his ability to work. In August 2015, the Veteran was afforded a VA examination for back conditions. He did not report flare-ups. The VA examiner measured the Veteran's ROM as forward flexion limited to 70 degrees and extension limited to 15 degrees. The Veteran had intervertebral disc syndrome (IVDS) that presented a mild functional limitation. The VA examiner assessed that the Veteran's back disability did not impact his ability to work. In a September 2015 statement received in January 2017, a military physician, Dr. S.K., assessed that pain and weakness of the Veteran's bilateral lower extremities significantly limited his functional ability with repeated used over time. Dr. S.K. noted that the Veteran's left lower extremity was worse than the right. In March 2016 treatment note, the Veteran's complaints included chronic pain that had interfered with activities of daily living for greater than three months in regard to his lumbar spine disability. He had slightly more prominent disc protrusion on the left at L5-S1 without definitive nerve root abutment. On a June 2016 private disability benefits questionnaire (DBQ) for back conditions received in July 2016, Dr. D.C., the examining physician, measured the Veteran's ROM as forward flexion limited to 60 degrees and extension limited to 10 degrees. Dr. D.C. noted that contributing factors of the Veteran's back disability included less movement than normal, pain on movement, disturbance of locomotion, interference with standing, and interference with motion. Additionally, Dr. D.C. assessed that the Veteran's lumbar disability affected his ability to perform any type of occupational task. In a July 2016 private DBQ for ankle conditions, the Veteran reported that he had pain with activities that was only alleviated by injections and that his ankle locked up with walking. The examining physician, Dr. T.W.R., noted that there was pain with ambulation and assessed that contributing factors of the disability were less movement than normal, pain on movement, disturbance of locomotion, and interference with standing on the right ankle. Additionally, Dr. T.W.R. assessed that the Veteran's right ankle disability impacted his ability to perform any type of occupational task. Dr. T.W.R. reasoned that the Veteran's arthritis prevented walking, carrying, and standing for extended periods of time. In February 2018, the Veteran expressed interest in repeat bilateral ankle imaging and a podiatry clinic consultation to determine if he was a candidate for ankle replacements. In October 2018, the Veteran was afforded a VA examination for hearing loss and tinnitus. The VA examiner assessed that the severity of the Veteran's hearing loss and tinnitus impacted his ability to work due to sleep disturbance and interference with understanding speech. In October 2018, the Veteran was afforded a VA examination for ankle conditions. At that time, the Veteran stated that he experienced right ankle pain and swelling with prolonged standing and walking and noted that he wore a compression sock on his right ankle. The VA examiner assessed that the Veteran's bilateral ankle disabilities impacted his ability to perform occupational tasks due to bilateral ankle pain with prolonged standing and walking, an inability to run and difficulty climbing stairs. Additionally, the VA examiner noted that the Veteran could only stand for up to 30 minutes and walk up to one-half of a mile before the need to sit and rest. The VA examiner ultimately concluded that there was no physical limitation with sedentary positions. In February 2019, the Veteran was afforded a VA examination for ankle conditions. He reported swelling, pain, and functional impairment associated with walking long distances in regard to the right ankle. He did not indicate any flare-ups with the left ankle. The VA examiner noted that the Veteran had regular use of a brace for right ankle comfort. Additionally, the VA examiner assessed that the Veteran's ankle disability impacted his ability to perform occupational tasks as it interfered with prolonged standing and walking. This examiner also assessed that the Veteran's disability did not interfere with sedentary activities. In February 2019, the Veteran was also afforded a VA examination for back conditions. He reported that any kind of movement, getting out of bed, sitting or walking, would cause his back to ache for days and that he could not sit, stand, or walk for long periods of time. The VA examiner reported that forward flexion was limited to 50 degrees and his extension was limited to 10 degrees. Additionally, the Veteran had IVDS and the used a brace regularly. An x-ray revealed mild degenerative changes in the lumbosacral spine. The VA examiner assessed that the Veteran's lumbar spine condition did not impact his ability to work. During a June 2019 orthotic prosthetics consultation, the Veteran reported that he had ankle pain and progressively worsening midfoot pronation for several years. He had an ankle sleeve with some improvement due mostly to compression therapy. Additionally, his right foot and ankle were casted in a neutral position. In June 2020, the Veteran was afforded a VA examination for hearing loss and tinnitus. The VA examiner assessed that the Veteran's hearing loss impacted his ability to work because he could not hear well, especially from his left ear, but his tinnitus did not impact his ability to work. In a February 2021 statement, the Veteran reported that, when he worked, his supervisors became upset when he asked to repeat themselves. He also reported that he would be out of work a few times each year due to his achilles tendonitis aches, that he wore an ankle brace to prevent pain, and took as many 15 to 30 minute breaks as needed. Additionally, he reported that compression socks helped with the swelling in his ankle, he had stabbing pain when he turned the wrong way, and he had fallen twice going downstairs due to sharp and jabbing pain. He stated that he could stand or sit for only about 20 minutes before he needed to adjust his position and he had flare-ups two or three times per week and had to take off work. He noted that he had a cane to use during his flare-ups about two to three times per week and he could stand only for five minutes or walk one block. He also stated that his back disability was productive of a dull ache that flared up one to two times per week, he could not walk or bend during a flare up, and his flare-ups took weeks to subside. He mentioned that occasionally his wife had to help him with his socks and shoes and he used a massager everyday for the shooting pain in his legs. In a February 2021, a private vocational consultant, L.P, assessed that the Veteran had been unable to secure and follow substantially gainful employment, to include unskilled sedentary employment, due to his service-connected disabilities since at least March 2010. Specifically, L.P. assessed that the Veteran was more likely than not precluded from securing and following substantial gainful employment due to service-connected bilateral tinnitus since September 2012, and from service-connected left lower extremity sciatic radiculopathy since November 2014 and from service-connected right lower extremity sciatic radiculopathy and bilateral lower extremity femoral radiculopathy since January 2019. L.P. reasoned that the Veteran did not obtain any skills from his past work as a commercial or industrial cleaner that would readily transfer to sedentary employment. Additionally, L.P. stated that the Veteran did not obtain a degree that would provide any sort of advantage at even the unskilled sedentary level. Further, L.P. noted that the Veteran's hearing would result in errors that would take time to fix and reduce his ability to meet employer expectation of adequate pace and productivity since March 2010. Finally, L.P. assessed that the Veteran could not sustain concentration on work tasks for more than two consecutive hours, and that he would be unproductive due to 30-minute breaks to adjust the position of his back. Based on the foregoing, the Board finds that manifestation of the service-connected disabilities prevents the Veteran from obtaining and maintaining gainful employment consistent with his education and industrial experience beginning September 24, 2012. In that regard, the Veteran's industrial experience appears to be limited to mostly physical labor which would require him to be on his feet for extended periods or bending frequently. The record clearly shows that he is significantly limited in his ability to be on his feet or repeatedly bend and lift items without a significant amount of pain. Additionally, the record demonstrates that his hearing ability was significantly reduced which would likely impact his ability to effectively function in an environment with others, in light of the disabling factors of his other service-connected disabilities. In summary, and after resolving any reasonable doubt in the Veteran's favor, the Board finds that the criteria for a TDIU are met effective September 24, 2012. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Byrd, Associate 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.