OTHER FOOT INJURY

GEORGE R. SENYK · 2021 · Case ID: A21020469

MIXED

Summary

The veteran, who served from December 1992 to December 2012, appeals the denial of an increased disability rating for his service-connected left heel tendonitis. The veteran sought a staged rating, specifically an increase from 10 percent to 30 percent for the period of January 29, 2019, to June 5, 2019. The Board reviewed evidence from VA examinations, treatment records, and lay statements. A January 15, 2019 VA examination noted chronic mild residual left heel tendonitis with pain on movement and weight-bearing, impacting the veteran's ability to walk and stand, but did not meet criteria for a 20 percent rating. However, on January 29, 2019, the veteran sustained a partial left Achilles tendon tear requiring casting, non-weight-bearing, and physical therapy, reflecting severe foot injury. By June 5, 2019, the tear had clinically healed with conservative treatment, and restrictions were removed. The Board found that the functional impairment shown between January 29, 2019, and June 5, 2019, warranted a 30 percent rating for severe foot injury during that specific period. For periods prior to January 29, 2019, and after June 5, 2019, the evidence did not support a rating higher than 10 percent. Therefore, the Board granted a staged rating of 30 percent for the specified period, while denying increases for other periods.

Rationale

Evidence showed severe foot injury consistent with 30 percent rating from Jan 29, 2019 to June 5, 2019.; Evidence did not support rating higher than 10 percent for periods prior to Jan 29, 2019 and after June 5, 2019.; Pain on movement and weight-bearing noted, impacting ability to walk/stand.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

190510-19492

Full Decision Text

Citation Nr: A21020469
Decision Date: 12/23/21 Archive Date: 12/22/21

DOCKET NO. 190510-19492
DATE: December 23, 2021

ORDER

Entitlement to a staged (from January 29, 2019 to June 5, 2019) 30 percent rating for residual left heel tendonitis is granted; entitlement to a rating in excess of 10 percent prior to January 29, 2019 and from June 5, 2019 is denied.

FINDING OF FACT

Prior to January 29, 2019, and from June 5, 2019 to the present, the Veteran's chronic residual left heel tendonitis was/has been manifested by pain and required use of orthotics; symptoms or impairment showing or suggesting moderately severe foot injury were not shown; from January 29, 2019 to June 5, 2019, the disability is reasonably shown to have been manifested by symptoms and impairment consistent with severe foot injury, and loss of use of the foot was not shown.

CONCLUSION OF LAW

The Veteran's left heel tendonitis warrants staged ratings of 10 percent and no higher prior to January 29, 2019; (an increased) 30 percent and no higher from January 29, 2019 to June 5, 2019; and 10 percent, and no higher, from June 5, 2019. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1-4.7, 4.21, 4.71a, Diagnostic Code (Code) 5284.

REASONS AND BASES FOR FINDING AND CONCLUSION

The appellant is a Veteran who served on active duty from December 1992 to December 2012. This matter is before the Board on appeal from a February 2019 Department of Veterans Affairs (VA) rating decision (that continued a 10 percent rating for the left heel tendonitis residuals. In his May 2019 VA Form 10182 (Notice of Disagreement), the Veteran elected the Board Hearing appeal lane. In correspondence received December 14, 2020, he withdrew the Board hearing request and requested 90-days for submission of additional evidence (which was acknowledged in a February 2, 2021 Board notice to the Veteran). Therefore, the Board's review is limited to evidence of record at the time of the February 2019 rating decision and evidence received within 90 days after the withdrawal of the hearing request.

A 20 percent staged increased rating for left heel tendonitis is granted from January 29, 2019 to June 5, 2019; entitlement to ratings in excess of 10 percent prior to January 29, 2019 and from June 5, 2019 is denied.

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.

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In claims for increase, as here, the relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability for a period beginning one year before the claim was filed until VA makes a final decision on the claim. However, separate ratings may be assigned for separate periods of time based on facts found. This practice is known as "staged" ratings." Hart v. Mansfield, 21 Vet. App. 505 (2007).

Where there is a question as to which of two evaluations shall be applied, 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. Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3.

When evaluating a service-connected disability based on limitation of motion, the Board must take into consideration functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see Johnson v. Brown, 9 Vet. App. 7 (1996). A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Nonetheless, a rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance,'" as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011).

The Veteran's chronic residual left heel tendonitis has been rated (by analogy) under Code 5284, for other foot injury (the 2013 rating decision that granted service connection did not explain the basis-presumably it was found that the Veteran sustained a left heel tendon injury in service). Under that Code, a 10 percent rating is warranted for moderate injury, a 20 percent rating is warranted for moderately severe injury, and a 30 percent rating is warranted for severe disability. A 40 percent rating is warranted with actual loss of use of the foot.

The words "slight", "moderate" and "severe" as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just". 38 C.F.R. § 4.6. Use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6.

On January 15, 2019 VA examination, the diagnoses included chronic mild residual left heel tendonitis, and left foot Haglund's syndrome. The Veteran was noted to have a history of chronic left heel pain; he had recently been seen by podiatry for the ongoing complaint of pain to the posterior medial left heel area, and a diagnosis of left Haglund's syndrome was noted and treated with injection. He reported that the chronic heel pain flared with increased activity and caused difficulty with prolonged walking and standing. There was no history of foot surgery. Pain on movement and on weight-bearing were noted on physical exam and contributed to functional loss. The Veteran did not use any assistive devices for locomotion. The examiner opined that the disability impacts the Veteran's ability to perform occupational tasks due to difficulty with prolonged walking and standing.

Based on this evidence, the February 2019 rating decision on appeal continued a 10 percent rating for chronic mild left residual left heel tendonitis.

VA treatment records reflect that on January 29, 2019, the Veteran sought emergency room treatment for a left ankle injury he sustained on missing the last steps while descending stairs. The impression based on X-rays was a probable partial left Achilles tendon tear, and he was given a molded cast and crutches. On VA orthopedic consult the following day, edema was noted throughout the left lower extremity, with tenderness to palpation at the calf and Achilles tendon with slight indentation at the lower leg. MRI results were consistent with a high-grade partial Achilles tendon tear without bony involvement. He was placed in a Seattle splint in plantar flexion and made non-weight-bearing.

On February 2019 VA follow-up, the Veteran reported having followed restrictions and elevating the leg. He denied numbness or paresthesias. He reported he attempted to
steps while descending stairs. The impression based on X-rays was a probable partial left Achilles tendon tear, and he was given a molded cast and crutches. On VA orthopedic consult the following day, edema was noted throughout the left lower extremity, with tenderness to palpation at the calf and Achilles tendon with slight indentation at the lower leg. MRI results were consistent with a high-grade partial Achilles tendon tear without bony involvement. He was placed in a Seattle splint in plantar flexion and made non-weight-bearing.

On February 2019 VA follow-up, the Veteran reported having followed restrictions and elevating the leg. He denied numbness or paresthesias. He reported he attempted to go to work but had trouble managing with the restrictions. On physical exam, there was minimal edema of the left lower extremity, ecchymosis throughout the posterior calf, and minimal tenderness to palpation at the calf and Achilles tendon. He was given a walker, CAM boot in plantar flexion, and heel lift applied with CAM boot pads.

On March 2019 VA orthopedic treatment, the Veteran was given two heel wedges to be placed in his ankle high boots, and the CAM boot and walker were discontinued. Range of motion exercises were prescribed, and he began a course of physical therapy.

On June 5, 2019 orthopedic surgery treatment, the Veteran was noted to have transitioned back to full weightbearing in normal shoes, his pain was controlled, and he was anxious to "more aggressively" return to his normal activities. He denied numbness or tingling. On physical exam, swelling to the posterior ankle was resolved, the Achilles tendon was intact, and there was no palpable defect. The impression was that the partial left Achilles tendon tear had clinically healed, and all restrictions were removed.

On October 2019 VA orthopedic treatment, the Veteran was noted to be walking without assistive devices, following the partial left Achilles tendon tear that had been treated conservatively with physical therapy. He reported some pain at the midsubstance of the Achilles, intermittent and worse in the morning, but improved with stretching. He denied any numbness or tingling. On physical exam, there was moderate swelling to the posterior ankle and the Achilles tendon was intact. There was approximately 5 degrees more ankle dorsiflexion on the left compared to the right. There was no palpable defect.

Additional VA treatment records throughout during the period for consideration show symptoms largely similar to those found on the VA examinations described above.

The Board finds that the reports of VA examinations, VA and private treatment records, and lay statements, overall, do not show that prior to January 29, 2019, a rating in excess of 10 percent was warranted for the disability. On January 15, 2019 VA examination, the Veteran reported difficulty walking and standing due to left heel pain; pain was noted on movement and weight-bearing, and he did not use assistive devices. Symptoms and impairment of the chronic residual left heel tendonitis consistent with moderately severe injury (warranting a 20 percent rating under Code 5284) were not shown.

On January 29, 2019 VA treatment, a worsening of impairment due to the disability was clearly shown, with a partial Achilles tendon tear following a misstep down some stairs. The Veteran required casting/splinting, non-weight-bearing for a period, assistive devices, and a course of physical therapy, reflecting that disability consistent with severe injury. The partial Achilles tendon tear was successfully treated over the course of a few months with conservative measures, and surgery was not necessary). On June 5, 2019 treatment, the Veteran was noted to have transitioned back to full weight-bearing in normal shoes, his pain was controlled, and the impression was that the partial left Achilles tendon tear had clinically healed, and all restrictions were removed. The additional level of functional ability due to the disability shown from the January 29, 2019 injury reasonably reflects a level of functioning impairment consistent with severe foot injury, and warrants the assignment of a 30 percent rating from January 29, 2019 to June 5, 2019, when the additional injury was deemed to have clinically healed. [The Board notes that examinations and treatment records after March 14, 2020 may not be considered herein, as the record was closed after 90 days post the withdrawal of the hearing request.].

The Board notes the lay statements submitted by the Veteran in support of this claim. They describe the types of problems that result from the chronic residual left heel tendonitis. The symptoms and impairment described are consistent with the criteria for the 10 percent and 30 percent staged ratings now assigned, and do not support that a

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