Citation Nr: 0003866	
Decision Date: 02/15/00    Archive Date: 02/23/00

DOCKET NO.  96-47 287	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in 
Pittsburgh, Pennsylvania



THE ISSUE

Entitlement to an increased rating for the service-connected 
residuals of ruptured right Achilles tendon, currently 
evaluated as 20 percent disabling.  



REPRESENTATION

Appellant represented by:	The American Legion



WITNESS AT HEARINGS ON APPEAL

The veteran



ATTORNEY FOR THE BOARD

K. J. Alibrando, Counsel



INTRODUCTION

The veteran served on active duty from May 1962 to February  
1965.  

This appeal comes before the Board of Veterans' Appeals 
(Board) from a February 1996 rating decision of the RO.  

The Board remanded the case for additional development in 
February 1998 and August 1999.  



FINDING OF FACT

The veteran's right Achilles tendon rupture residuals are 
manifested by gross deformity with functional loss due to 
pain which more nearly approximates a level of disability 
consistent with ankylosis of the ankle in dorsiflexion 
between 0 and 10 degrees.  



CONCLUSION OF LAW

The criteria for the assignment of a 30 percent evaluation, 
but no more, for the service-connected residuals of rupture 
of the right Achilles tendon have been met. 38 U.S.C.A. 
§§ 1155, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 
4.1, 4.2, 4.7, 4.40, 4.45, 4.71a including Diagnostic Codes 
5024, 5270, 5271 (1999).  



REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board finds the veteran's claim for increased 
compensation benefits for the service-connected right 
Achilles tendon disability is well grounded within the 
meaning of 38 U.S.C.A. § 5107(a) (West 1991).  The Court has 
held that, when a veteran claims a service-connected 
disability has increased in severity, the claim is well 
grounded.  Proscelle v. Derwinski, 2 Vet. App. 629 (1992).  

Historically, by rating action in August 1990, service 
connection was granted for residual rupture, right Achilles 
tendon, evaluated as noncompensable on September 1, 1989, on 
the basis of Hearing Officer's finding that the veteran had 
suffered an injury to the right Achilles tendon during 
service, as reflected by the service medical records.  By 
rating action in September 1991, the evaluation was increased 
to 10 percent effective in September 1989.

The veteran submitted his claim for an increased rating in 
October 1995.  

VA outpatient records dated from 1990 to 1995 show continued 
treatment for right ankle and calf pain.  Diagnoses included 
those of Achilles tendonitis and plantar fasciitis.  

On VA examination in December 1995, gross deformity of the 
right Achilles tendon in comparison to the left was 
demonstrated.  There was tenderness to touch.  The right 
ankle had flexion to 30 degrees, dorsiflexion to 10 degrees.  
The examiner indicated that the veteran was unable to stand 
on his toes or heels because of discomfort.  The assessment 
was that of residual rupture of right Achilles tendon with 
plantar fasciitis, symptomatic.  

The veteran testified in August 1996 and in January 1997, 
that he had to wear a leg brace due to the service-connected 
right Achilles tendon disability.  He indicated that he had 
pain in the right ankle and difficulty walking and doing 
other activities.  He also testified that he had difficulty 
with steps and was taking Motrin for pain.  

By rating action in August 1996, the evaluation for the 
service-connected residuals of right Achilles tendon rupture 
was increased to 20 percent, effective in November 1995.  

On VA examination in January 1999, the veteran reported that, 
since the initial injury in 1963, he had experienced 
continued difficulty with push-off of his right ankle and 
progressive discomfort in the posterior right ankle region.  
The examination revealed findings of a "steppish-type" gait 
while wearing an ankle-foot orthosis on the right side and a 
more antalgic-type gait with flatfoot posturing with the 
orthosis removed.  The right lower extremity was noted to 
have a palpable 2.5 x 4 cm nodule in the distal aspect of the 
Achilles tendon which was very firm and tender to palpation, 
both light and deep.  The veteran also had posterior ankle 
tenderness with minimal anterior joint line ankle discomfort.  
No evidence of erythema, effusion or crepitus was detected.  
The range of motion of the right ankle was recorded as 4 to 5 
degrees of dorsal flexion and 20 degrees of plantar flexion, 
both active and passive.  Eversion and inversion were equal, 
bilaterally; however, both eversion and inversion of the 
right ankle with passive range of motion were noted to elicit 
significant discomfort.  The veteran also was not able to 
single toe raise on the right. 

VA X-ray studies of the right ankle revealed very minimal 
degenerative changes of the calcaneal, cuboid, talonavicular 
and ankle joint.  A radiographic dense-appearing nodule in 
the Achilles tendon was detected and was consistent with the 
physically palpable calcific nodule on physical examination.  
In conclusion, the examining physician noted that the veteran 
obviously had a healed Achilles tendon rupture with a very 
hypertrophic, calcific scar.  

On VA examination in September 1999, the history of a right 
Achilles tendon injury was noted.  On physical examination, 
there was a prominent thickened nodular aspect of the 
Achilles tendon and the right Achilles tendon was thicker 
(wider) than the left.  Right ankle dorsiflexion was to 
approximately 15 or 18 degrees with some heel and Achilles 
tendon discomfort.  Left ankle dorsiflexion was normal at 0 
to 20 degrees.  Active right ankle plantar flexion was weak 
and had only fair (3+/5) to good (4/5) strength.  Left ankle 
plantar flexion was normal (5/5).  Active assisted right 
ankle plantar flexion was approximately 35 degrees.  Active 
assisted foot inversion was normal and symmetric at 0 to 30 
degrees on each side.  Active assisted foot eversion was 
normal and symmetric from 0 to 20 degrees on each side.  
There was discomfort to palpation of the plantar aspect of 
the right os calcis and sole of the right foot.  There were 
no abnormal callosities about the right foot.  The examiner 
concluded that the veteran demonstrated pain and functional 
loss due to the service-connected injury to right Achilles 
tendon.  

The VA examiner opined that the veteran was able to stand and 
walk without support but would require the use of a cane, 
ankle brace and personal shoe modification to maximize the 
ability.  It was also indicated that he would be restricted 
in his ability to stand or walk for long periods of time and 
would be limited in his ability to ascend and descend steps, 
to squat and to adjust or compensate foot position to the 
ground surface beneath the right foot.  

In general, disability evaluations are assigned by applying a 
schedule of ratings that represent, as far as can practicably 
be determined, the average impairment of earning capacity. 38 
U.S.C.A. § 1155 (West 1991).  Although the regulations 
require that, in evaluating a given disability, that 
disability be viewed in relation to its whole recorded 
history, 38 C.F.R. §§ 4.1, 4.2 (1999), where entitlement to 
compensation has already been established, and an increase in 
the disability rating is at issue, it is the present level of 
disability which is of primary concern.  Francisco v. Brown, 
7 Vet. App. 55 (1994).  

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 (1999).  

Functional impairment is based on lack of usefulness and may 
be due to pain, supported by adequate pathology and evidenced 
by visible behavior during motion.  Many factors are for 
consideration in evaluating disabilities of the 
musculoskeletal system and these include pain, weakness, 
limitation of motion, and atrophy. Painful motion with the 
joint or periarticular pathology which produces disability 
warrants the minimum compensation. 38 C.F.R. §§ 4.10, 4.40, 
4.45, 4.59.  

Tenosynovitis is rated on the limitation of motion of the 
affected part as analogous to degenerative arthritis.  38 
C.F.R. § 4.71a, Diagnostic Code 5024 (1999).  

The standardized range of motion for the ankle is plantar 
flexion to 45 degrees and dorsiflexion to 20 degrees. 38 
C.F.R. § 4.71, Plate II. (1999).  

Under 38 C.F.R. § 4.71a including Diagnostic Code 5270 
(1999), ankylosis of the ankle in plantar flexion, between 30 
and 40 degrees, or in dorsiflexion, between 0 and 10 degree 
warrants a 30 percent rating.  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 warrants a 40 percent rating.  

Under 38 C.F.R. § 4.71a including Diagnostic Code 5271 
(1999), a moderate limitation of motion of the ankle warrants 
a 10 percent rating and a marked limitation of motion of the 
ankle warrants a 20 percent rating.  

Based on a full review of the record, the Board finds that 
the evidence supports the assignment of a 30 percent rating 
for the service-connected residuals of the rupture of the 
right Achilles tendon.  The Board must consider in this 
regard the findings of pain and weakness pursuant to 38 
C.F.R. § 4.40 regarding functional loss due to pain and 38 
C.F.R. § 4.45 regarding weakness, fatigability, 
incoordination, or pain on movement of a joint.  See DeLuca v 
Brown, 8 Vet. App. 202 (1995).  

The recent VA examinations show significant impairment of 
right ankle motion due to pain of the heel caused by the 
rupture of the Achilles tendon.  The evidence of record, in 
the Board's opinion, shows that a level of right ankle 
disability which more nearly approximates that of a 
functional loss equivalent to ankylosis in dorsiflexion 
between 0 and 10 degrees.  Therefore, a 30 percent evaluation 
under Diagnostic Code 5270 is for application in this case.  

The objective evidence as a whole, however, does not show 
that the veteran has functional loss equivalent to 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 which would 
warrant a 40 percent rating under Diagnostic Code 5270.  
Therefore, consideration of the assignment of a rating in 
excess of 30 percent for the service-connected residuals of 
right Achilles tendon rupture is not warranted.  



ORDER

A 30 percent rating for the service-connected residuals of 
rupture of the right Achilles tendon is granted, subject to 
the regulations controlling disbursement of VA monetary 
benefits.  



		
	STEPHEN L. WILKINS
	Member, Board of Veterans' Appeals