BVA9502541 DOCKET NO. 93-06 004 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to an increased evaluation for bilateral recurrent Achilles tendonitis, currently evaluated at 10 percent. REPRESENTATION Appellant represented by: Massachusetts Department of Veterans Services WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Nancy R. Kegerreis, Associate Counsel INTRODUCTION The veteran served on active duty from August 1975 to May 1980. This matter comes before the Board of Veterans' Appeals (Board) from a June 1991 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Providence, Rhode Island, which denied a compensable evaluation for bilateral recurrent Achilles tendonitis. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, essentially, that he has pain and swelling in both feet and ankles, with the right foot being most affected. He states that humid weather causes an increase in pain, swelling, and sensitivity; that his right ankle is stiff; that his ankles crack occasionally; and that he has recently had cramps in his calves. He maintains that he can no longer participate in vigorous physical activity, such as running or playing racquetball, and is unable to stand on his feet for more than an hour at a time. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claim for an increased evaluation for bilateral recurrent Achilles tendonitis. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. Achilles tendonitis in the left foot currently is manifested by subjective complaints of recurring pain, swelling, and discomfort, without objective evidence of pathology. No limitation of motion and no x-ray evidence of involvement of the ankle joint has been found. 3. Achilles tendonitis in the right foot currently is manifested by subjective complaints of recurring pain and swelling, and objective evidence of tenderness to touch, stiffness, and possible lateral instability causing a slight change in gait. No limitation of motion and no x-ray evidence of involvement of the ankle joint has been found. CONCLUSION OF LAW The schedular criteria for a disability rating greater than 10 percent for bilateral recurrent Achilles tendonitis have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 4.1- 4.14, 4.40-4.46, 4.71a , Diagnostic Code 5024 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Background As a preliminary matter, the Board notes that the veteran's claim for an increased evaluation is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, the Board finds that he has presented a claim which is plausible. The Board is also satisfied that all relevant and available facts have been properly developed. No further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). The veteran initially was granted service connection for injuries to both Achilles tendons in July 1981, and assigned an evaluation of 10 percent, effective from May 1980. In December 1982, the evaluation was reduced to a noncompensable rating, effective from March 1983. This rating was confirmed in November 1983 and June 1991. In September 1991, the veteran requested an increased rating, but the RO denied the claim in March 1992. Following a hearing before the RO in July 1992, the hearing officer granted a 10 percent evaluation for tendonitis of the right Achilles tendon on the basis of functional loss due to pain objectively demonstrated, but denied an increased evaluation for tendonitis of the left Achilles tendon. Although the Board must consider the whole record, see 38 C.F.R. § 4.2 (1993), those documents created in proximity to the recent claim are the most probative in determining the current extent of impairment. See Francisco v. Brown, 7 Vet.App. 55, 58 (1994). In this regard, the Board will consider principally the veteran's medical history following the June 1991 rating decision. Service medical records reveal in September l979 the veteran injured an Achilles tendon (presumably, the left) while running. There was no joint involvement or point tenderness, and a physical examination was unremarkable. The report of an October 1979 examination indicated that although the veteran previously had been given light duty for l0 days following his initial injury, when he resumed running the pain returned. On examination, there was free range of motion, but pain on direct pressure of the Achilles tendon. The veteran sustained a second injury in service in April 1980, when he injured the right Achilles tendon while playing basketball. Outpatient treatment records, dated from October 1991 to October 1992, from the VA Medical Center in Brockton, Massachusetts, show several visits for Achilles tendonitis. A report of an examination in November 1991 contains a diagnosis of mild tenderness of bilateral Achilles tendons, greater on the right than on the left. There was full passive motion, no inflammation, and no arthritis. Naprosyn was prescribed. Similar findings were noted in July 1992 when the veteran requested that his medication be changed to Motrin. It was recommended that he try bilateral wedges and a heel cup to decrease the pull on the Achilles tendon. The veteran was afforded a special VA orthopedic examination in December 1991. A medical history provided by the veteran reported swelling around the ankles in the morning and a change in gait, with the right foot turning out when walking. The veteran stated that he was unable to wear rubber-soled shoes without a heel. Although he had been taking Motrin and Naprosyn for the pain, he indicated that there had been little change in his symptoms. Examination revealed a normal range of motion of the ankles and heels and no redness over the right Achilles tendon, although there was slight tenderness to pressure. Radiological reports revealed a finding of a slight bony protuberance on the posterior aspect of the right os calcis, probably at the insertion of the Achilles tendon. The remainder of the tendon appeared normal, and there was no calcification noted in the tendon at that time. The impression was chronic tendonitis of the Achilles tendon, manifested by pain and tenderness on pressure with slight gait changes. The orthopedist offered his opinion that the Achilles tendonitis was causing the right foot to turn out in order to avoid full excursion of ankle motion. The condition has been stubborn as far as treatment was concerned and had not responded to nonsteroid anti- inflammatories. It was expected that the condition would persist and that the veteran would be handicapped for activities which require agility and prolonged standing. At a July 1992 hearing before the RO, the veteran stated that the symptoms involving his feet and ankles were becoming more troublesome. He reported that in really hot, humid, weather there was an increase in pain, swelling, and mobility of his ankles, and that they were sensitive to touch. He indicated that when he arose in the morning, he had a sensation of instability, as though his ankles would give out on him. He stated that he had learned to test his stability in the morning by putting weight on his feet a little bit at a time. He could usually tell if his ankles were going to give him trouble that day. Sometimes the ankles would crack or he could hear noticeable movement in the joints. On occasion, he had actually fallen. In addition, he reported that his right ankle felt stiff, failing to turn with the motion of his body. He also had experienced cramps in his calves. Because of these symptoms, he had had to limit his physical activities; he was no longer able to play racquetball and could stand in a stationary position for no longer than 60 minutes. He indicated that he had been taking Motrin and Naprosyn, and that his current employment had not significantly been affected by these limitations, as he owned a small retail store, and was not required to stand for long periods of time. In October 1992, the veteran telephoned the RO, stating that he had been fitted for a brace at the Brockton VA Medical Center. Outpatient records for October 1992 reveal that the veteran was to be given bilateral wedges and a heel cup, but there is no evidence that a brace had been prescribed or issued. II. Analysis In evaluating service-connected disabilities, the Board looks to functional impairment and attempts to determine the extent to which the veteran's disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the medical findings contained in the claims file to the criteria in the VA Schedule for Rating Disabilities. See 38 C.F.R. §§ 4.1, 4.2, 4.10 (1993). The veteran currently is rated by analogy to 38 C.F.R. § 4.71a, Diagnostic Code 5024 (1993), for tenosynovitis, which requires the disorder to be rated under Diagnostic Code 5003 as degenerative arthritis on limitation of motion of affected parts. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent may be allowed for each major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, if there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups, an evaluation of 10 or 20 percent may be assigned. The veteran's medical examinations have revealed no limitation of motion of either the right or left ankle. Moreover, the December 1991 x-rays did not reveal any significant joint abnormalities or calcification. Thus, a compensable evaluation is not warranted under any diagnostic code requiring limitation of motion, including Diagnostic Code 5003. However, based on medical findings of a mild tenderness and a slight change of gait, indicating discomfort, in his right foot and ankle, the hearing officer found that the veteran was entitled to a 10 percent allowance for functional loss due to objectively-demonstrated pain. The Board agrees with that finding. See 38 C.F.R. § 4.40, 4.59; Ferguson v. Derwinski, 1 Vet.App. 429, 430 (1991); Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991). However, the Board also finds that, as a thorough review of the most recent medical evidence of record does not reveal findings of limitation of motion, x-ray involvement of the joint, significant functional loss of the left foot and ankle, or other objective evidence of pathology, tendonitis in the left foot appropriately has been evaluated as noncompensable. In evaluating this claim, the Board has considered the applicability of the reasonable doubt doctrine. However, inasmuch as there is no approximate balance of positive and negative evidence, that doctrine is not for application in this case. See 38 U.S.C.A. § 5107(b). The Board also has considered whether an increased rating on an extra-schedular basis is warranted for the veteran's disability. It finds, however, that the impairment attributed to bilateral tendonitis does not present such an exceptional or unusual picture, with such related factors as marked interference with employment or frequent periods of hospitalization so as to render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b) (1993). For the foregoing reasons, an increased evaluation for bilateral Achilles tendonitis is not warranted. ORDER An increased evaluation for bilateral recurrent Achilles tendonitis is denied. JACQUELINE E. MONROE Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.