Citation Nr: 0813400 Decision Date: 04/23/08 Archive Date: 05/01/08 DOCKET NO. 05-02 245 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to an increased initial evaluation for spondylosis of the cervical spine, currently evaluated as 10 percent disabling. 2. Entitlement to an increased initial evaluation for spondylosis of the lumbar spine, currently evaluated as 10 percent disabling. 3. Entitlement to an increased initial evaluation for degenerative arthritis of the right foot with a right foot heel spur, currently evaluated as 10 percent disabling. 4. Entitlement to an increased initial evaluation for degenerative arthritis of the left foot with a left foot heel spur, currently evaluated as 10 percent disabling. 5. Entitlement to an increased initial evaluation for degenerative arthritis of the right shoulder, currently evaluated as 10 percent disabling. 6. Entitlement to an increased initial evaluation for degenerative arthritis of the left shoulder, currently evaluated as 10 percent disabling. 7. Entitlement to an increased initial evaluation for right knee osteoarthritis, currently evaluated as 10 percent disabling. 8. Entitlement to an increased initial evaluation for left knee osteoarthritis, currently evaluated as 10 percent disabling. 9. Entitlement to an increased initial evaluation for degenerative arthritis of the right ankle, currently evaluated as 10 percent disabling. 10. Entitlement to an increased initial evaluation for degenerative arthritis of the left ankle, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. C. Dale, Associate Counsel INTRODUCTION The veteran had active duty service from February 1984 to February 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The veteran was afforded an August 2005 Travel Board hearing before the undersigned Veterans Law Judge. A copy of the transcript is associated with the record. This matter was previously before the Board in a January 2007 decision and remand for additional development. Such additional development has been completed and the case is ready for appellate review. The RO granted service connection for carpal tunnel syndrome of both wrists and epicondylitis of the right elbow in a November 2007 decision. Because the veteran has not filed a notice of disagreement pertaining to these rating determinations, they are not before the Board for appellate review. See 38 U.S.C.A. § 7105(a); see Godfrey v. Brown, 7 Vet. App. 398, 408-10 (1995) [pursuant to 38 U.S.C. § 7105, a Notice of Disagreement initiates appellate review in the VA administrative adjudication process; and the request for appellate review is completed by the claimant's filing of a substantive appeal (VA Form 1-9 Appeal) after an SOC is issued by VA]. FINDINGS OF FACT 1. The veteran's cervical spondylosis is not productive of involvement of two or more major joints or two or more minor joints groups with occasional incapacitating exacerbations or a showing of forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees, or a combined range of motion not greater than 170 degrees or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 2. The veteran's lumbar spondylosis is productive of forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. 3. The veteran's right foot arthritis is not productive of involvement of two or more major joints or two or more minor joints groups with occasional incapacitating exacerbations, nor is the veteran's right foot condition moderately severe. 4. The veteran's left foot arthritis is not productive of involvement of two or more major joints or two or more minor joints groups with occasional incapacitating exacerbations, nor is the veteran's left foot condition moderately severe. 5. The veteran's right shoulder arthritic disability is productive of findings approximating sustained limitation of motion to the shoulder level. 6. The veteran's left shoulder arthritic disability is productive of findings approximating sustained limitation of motion to the shoulder level. 7. The veteran's right knee arthritic disability is not productive of involvement of two or more major joints or two or more minor joints groups with occasional incapacitating exacerbations, nor does it result in a limitation of motion in the flexion of 30 degrees or in the extension of 15 degrees. 8. The veteran's left knee arthritic disability is not productive of involvement of two or more major joints or two or more minor joints groups with occasional incapacitating exacerbations, nor does it result in a limitation of motion in the flexion of 30 degrees or in the extension of 15 degrees. 9. The veteran's right ankle arthritic disability is not productive of involvement of two or more major joints or two or more minor joints groups with occasional incapacitating exacerbations, nor is it productive of a marked limitation of motion. 10. The veteran's left ankle arthritic disability is not productive of involvement of two or more major joints or two or more minor joints groups with occasional incapacitating exacerbations, nor is it productive of a marked limitation of motion. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for cervical spondylosis have not been met. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.71(a), Diagnostic Codes 5003, 5235-5242 (2007). 2. The criteria for a grant of a 20 percent rating for lumbar spondylosis have been met. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.71(a), Diagnostic Codes 5003, 5235-5242 (2007). 3. The criteria for a rating in excess of 10 percent for a right foot disability have not been met. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.71(a), Diagnostic Codes 5003, 5284 (2007). 4. The criteria for a rating in excess of 10 percent for a left foot disability have not been met. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.71(a), Diagnostic Codes 5003, 5284 (2007). 5. The criteria for a rating of 20 percent for a right shoulder disability have been approximated. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.71(a), Diagnostic Codes 5003, 5024, and 5201 (2007). 6. The criteria for a rating of 20 percent for a left shoulder disability have been approximated. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.71(a), Diagnostic Codes 5003, 5024, and 5201 (2007). 7. The criteria for a rating in excess of 10 percent for a right knee disability have not been met. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.71(a), Diagnostic Codes 5003, 5260, and 5261 (2007). 8. The criteria for a rating in excess of 10 percent for a left knee disability have not been met. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.71(a), Diagnostic Codes 5003, 5260, and 5261 (2007). 9. The criteria for a rating in excess of 10 percent for a right ankle disability have not been met. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.71(a), Diagnostic Codes 5003, 5271 (2007). 10. The criteria for a rating in excess of 10 percent for a left ankle disability have not been met. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.71(a), Diagnostic Codes 5003, 5271 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist Before addressing the merits of the claims, the Board is required to address the duty to notify and duty to assist imposed by 38 U.S.C.A. §§ 5103, 5103(A) and 38 C.F.R. § 3.159. VA has a duty to notify a claimant and his representative, if any, of the information and evidence needed to substantiate a claim. This notification obligation was accomplished by way of letters from the RO to the veteran dated in November 2003, January 2005, and January 2007. These letters effectively satisfied the notification requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by: (1) informing the veteran about the information and evidence not of record that was necessary to substantiate the claims; (2) informing the veteran about the information and evidence VA would seek to provide; (3) informing the veteran about the information and evidence he was expected to provide; and (4) requesting the veteran provide any evidence in his possession that pertains to his claims. Additionally, the January 2007 letter provided notice of how VA assigns disability ratings and effective dates and complies with the holding of Dingess v. Nicholson, 19 Vet. App. 473 (2006). Although the January 2007 letter was not timely received, the denial of the claims in the instant decision makes the timing error non-prejudicial. Also, for an increased-compensation claim, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores. The Board finds that any notification errors regarding information and evidence necessary to substantiate an increased rating claim in accordance with Vazquez-Flores are non-prejudicial since the veteran had actual knowledge of the information that would be contained in the notice. Sanders v. Nicholson, 487 F.3d 881, 889 (Fed Cir. 2007); Vazquez, supra. In this case, a January 2005 letter from the RO to the veteran informed him that to substantiate an increased rating claim, the evidence must show that the disability increased in severity. The veteran also received notice of the rating criteria used to rate his disabilities in a November 2004 Statement of the Case and was afforded an opportunity to respond before the RO readjudicated the claims in an October 2007 Supplemental Statement of the Case. Additionally, a January 2007 letter from the RO to the veteran invited him to submit lay and medical evidence in the forms of statements or medical records that showed how his disabilities have increased in severity. Thus, the veteran had actual knowledge of the notification requirements outlined in Vazquez and no prejudice inures to the veteran. Sanders, supra; Vazquez, supra. Second, VA has a duty to assist a veteran in obtaining evidence necessary to substantiate a claim. The service medical records and VA treatment records are associated with the claims file. Additionally, the veteran was afforded multiple VA examinations in connection with his claims. The veteran and his representative have not made the RO or the Board aware of any outstanding evidence that needs to be obtained in order to fairly decide his claims. As such, all relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained and the case is ready for appellate review. Analyses Disability evaluations are determined by the application of a schedule of ratings which is based upon an average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. §§ 3.102, 4.3, 4.7. In addition, the Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether or not they were raised by the appellant, as well as the entire history of the veteran's disability in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two disability 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. In the evaluation of service-connected disabilities the entire recorded history, including medical and industrial history, is considered so that a report of a rating examination, and the evidence as a whole, may yield a current rating which accurately reflects all elements of disability, including the effects on ordinary activity. 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.41. Because the veteran is challenging the initially assigned disability rating, it has been in continuous appellate status since the original assignment of service connection. The evidence to be considered includes all evidence proffered in support of the original claim. Fenderson v. West, 12 Vet. App. 119 (1999). Increased rating for cervical spondylosis, currently evaluated as 10 percent disabling The veteran was initially granted service connection in a May 2004 rating decision, and a 10 percent rating was assigned under Diagnostic Code 5003 for spondylosis of the cervical spine. The veteran contends a higher disability rating should be granted because his disability has worsened. Since the preponderance of the evidence is against the veteran's claim, the appeal will be denied. The veteran filed his claim in November 2003. Thus, the current regulations of the General Rating Formula for Diseases and Injuries of the Spine are for application. 38 C.F.R. § 4.71a Diagnostic Codes 5235-5243. This formula assigns evaluations with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by the residuals of the injury or disease. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent evaluation is for assignment upon a showing of forward flexion of the cervical spine greater than 15 degrees, but not greater than 30 degrees, or a combined range of motion not greater than 170 degrees or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent evaluation is for assignment for forward flexion of the cervical spine to 15 degrees or less or favorable ankylosis of the entire cervical spine. A 40 percent evaluation contemplates a finding of unfavorable ankylosis of the entire cervical spine, a clinical finding not shown to be present in the veteran's case. An evaluation in excess of 40 percent requires unfavorable ankylosis of the entire thoracolumbar spine for a 50 percent evaluation and unfavorable ankylosis for the entire spine for a 100 percent evaluation. When there is a noncompensable rating based upon limitation of motion under the General Rating, an evaluation based upon x-ray evidence may be warranted under Diagnostic Code 5003. Under 38 C.F.R. § 4.71a, Diagnostic Code 5003, the applicable Diagnostic Code for degenerative arthritis, refers to the limitation of motion Diagnostic Codes for the specific joint or joints involved. A 10 percent rating will be for application for such major joint or group of minor joints affected by limitation of motion. Id. Limitation of motion needs to be objectively shown by findings such as swelling, muscle spasm, or painful motion. Id. In the absence of limitation of motion, a 10 percent evaluation is warranted for x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and a 20 percent evaluation is warranted with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joints with occasional incapacitating exacerbations. Id. At the August 2005 Travel Board hearing, the veteran reported that he injured his neck during a parachute jump, but that he currently does not experience much pain of his neck. The veteran underwent two VA examinations regarding his cervical spine. At the December 2003 VA examination, the veteran did not experience limitation of motion in his cervical spine. X-rays of the veteran's cervical spine revealed "minimal diffuse cervical spondylosis without disc space narrowing or foraminal compromise." The examiner specifically noted that pain, weakness, lack of endurance, fatigue or incoordination did not impact further on the cervical range of motion. The veteran underwent another VA examination in August 2007. In his lateral extension and lateral flexion, the veteran's motion was limited to 30 degrees out of a normal 45 degrees. Other ranges of cervical motion were normal, and X-ray reflected a normal cervical spine. The medical evidence does not show a limited range of motion of the veteran's cervical spine to warrant a rating in excess of 10 percent under Diagnostic Code 5239. Because there is X- ray evidence of spondylosis, the veteran's cervical disability may be rated under Diagnostic Code 5003. The veteran's limitation of motion as to the cervical spine does not approximate findings consistent with a rating greater than the currently-assigned 10 percent, and the resulting functional impairment is minimal. The Board finds that the evidence of record does not show that the veteran is entitled to a rating in excess of 10 percent for cervical spondylosis under any applicable Diagnostic Code. Therefore, the veteran's claim for an evaluation in excess of 10 percent for cervical spondylosis will be denied. Increased initial evaluation for spondylosis of the lumbar spine, currently evaluated as 10 percent disabling The veteran was initially granted service connection in a May 2004 rating decision, and a 10 percent rating was assigned under Diagnostic Code 5003 for spondylosis of the lumbar spine. The veteran contends a higher disability rating is warranted because his disability has worsened. Since the medical evidence shows that the veteran experiences a compensable limitation of motion in his lumbar spine, a 20 percent rating is granted under Diagnostic Codes 5235-5243. The veteran filed his claim in November 2003. As such, the current regulations of the General Rating Formula for Diseases and Injuries of the Spine are for application. 38 C.F.R. § 4.71a Diagnostic Codes 5235- 5243. Under this formula, a 20 percent evaluation is for assignment when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees or with a combined range of motion not greater than 120 degrees or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis. A 40 percent evaluation is for assignment when forward flexion of the thoracolumbar spine is 30 degrees or less or for favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is for assignment upon a showing of unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent evaluation is for assignment for unfavorable ankylosis of the entire spine. The Board must also consider a veteran's pain, swelling, weakness, and excess fatigability when determining the appropriate evaluation for a disability using the limitation of motion diagnostic codes. 38 C.F.R. §§ 4.40, 4.45; See Johnson v. Brown, 9 Vet. App. 7, 10 (1996); DeLuca v. Brown, 8 Vet. App. 202 (1995). At the August 2005 Travel Board hearing, the veteran reported that his back "goes out" three or four times a year and leaves him incapacitated. In order to alleviate his back condition, the veteran wears a brace and is careful about how he moves his back. In the December 2003 VA examination report, the examiner indicated that the veteran did not experience a limited range of motion in his lumbar spine, and the paraspinal muscles were not in spasm. There was no muscle atrophy noted. The examiner specifically noted that lumbar spine motions were without restriction or pain. X-rays of the veteran's lumbar spine showed "minimal diffuse lumbar spondylosis." Upon subsequent examination, in August 2007, the veteran was found to have limited range of motion in his lumbar spine. Specifically, the following ranges of motion were limited: Type of Motion Veteran (degrees) Normal (degrees) Flexion 60 with pain 90 Extension 20 30 Lateral Flexion, right 25 30 Lateral Flexion, left 20 30 In order to receive a rating in excess of 10 percent based on limitation of motion, findings must approximate forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees or with a combined range of motion not greater than 120 degrees or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis. At the August 2007 VA examination, the motion of the veteran's flexion was limited to 60 degrees with pain. The veteran also has reported that his back interferes with his activities of daily living. The medical evidence as of August 21, 2007 shows a limitation of motion sufficient to warrant a 20 percent rating under the General Rating Formula for the Spine. While the evidence does not show such a sustained limitation of motion or functional impairment, the Board must grant the benefit of the doubt to the veteran under applicable law - the veteran here testifying of a periodic back instability and constant pain which limits functional use. 38 U.S.C.A § 5107(b) (West 2002); Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown, 5 Vet. App. 413, 421 (1993) (Observing that under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the claimant shall prevail upon the issue). Therefore, a 20 percent disability evaluation for the lumbar spine disability is granted. Increased initial evaluation for degenerative arthritis of the feet with bilateral heel spurs, currently evaluated as 10 percent disabling The veteran was initially granted service connection for both feet in a May 2004 rating decision, and a 0 percent rating was assigned under Diagnostic Code 5003. The veteran contends a higher disability rating should be granted because his disability has worsened. In a November 2007 decision, the RO granted the veteran a 10 percent rating for his right foot and a 10 percent rating for his left foot under Diagnostic Code 5003. Since the preponderance of the evidence is against the veteran's claim, the appeal will be denied. The veteran is currently rated as 10 percent disabled under Diagnostic Code 5003 for each foot. Diagnostic Code 5003 provides for degenerative arthritis and mandates that the disability be rated upon the limitation of motion of the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. If the disability is noncompensable under the appropriate diagnostic code provision for the joint involved, a 10 percent disability rating will be for application for such major joint or group of minor joints affected by limitation of motion. Id. Limitation of motion needs to be objectively shown by findings such as swelling, muscle spasm, or painful motion. Id. In the absence of limitation of motion, a 10 percent disability rating is warranted for X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and a 20 percent disability rating is warranted with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joints with occasional incapacitating exacerbations. Id. Crepitation either in the soft tissues such as the tendons or ligaments, or within the joint structures, should be considered as points of contact which are diseased. 38 C.F.R. § 4.59. Although there is not a specific code addressing limitation of motion of the feet, Diagnostic Code 5284 relates to foot injuries. Foot injuries that are moderate warrant a 10 percent disability rating. If moderately severe, a 20 percent disability rating is appropriate. If the foot injury is severe, a maximum 30 percent disability rating is warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5284 (2007). Diagnostic Code 5284 may involve limitation of motion and therefore require consideration under sections 4.40 and 4.45. Separate ratings may be assigned for a foot disability under Diagnostic Codes 5284 and 5010 where there is also X-ray evidence of traumatic arthritis in the affected joint, but only if there is additional disability due to limitation of motion. See VAOPGCPREC 23-97 and VAOPGCREC 9-98. At the August 2005 Travel Board hearing, the veteran reported that he experienced daily pain in his feet. He also stated that he used orthopedic inserts and took Motrin pain relief medication at night to alleviate pain in his feet and ankles. X-rays from the December 2003 VA examination show that the veteran had minimal degenerative arthritic change of the first metacarpal phalangeal joint in both feet. Subsequently, an August 2007 VA examination report shows that the veteran reported pain in both his feet while standing, walking, and at rest. He also reported that he had to limit his daily activities since he could not stand for more than three hours and could not walk over a mile. As to the left foot, there was noted swelling and tenderness of the arch, but no evidence of instability or weakness. The examiner noted that the left foot shoe displayed an "unusual" wear pattern. As to the right foot, there was noted no objective evidence of painful motion, swelling, tenderness, instability, or weakness. An "unusual" shoe wear pattern was noted. The examiner observed that the veteran displayed a normal gait. After physical examination, the veteran was diagnosed with bilateral heel spurs and bilateral pes planus. Upon X- ray, the veteran was found to have "tiny" heel spurs. The veteran's bilateral foot conditions were noted to have a "significant" effect on his occupation. The Board finds that the record shows that the veteran does not have a moderately severe foot injury under Diagnostic Code 5284. Although the veteran experiences pain with his foot conditions, the veteran reported that he can stand for three hours and walk a mile. The Board finds that the veteran's foot conditions are more accurately characterized as moderate and a rating in excess of 10 percent is not warranted under Diagnostic Code 5284 or 5003. Increased initial evaluation for the right and left shoulders, each currently evaluated as 10 percent disabling The veteran was initially granted service connection for both shoulders in a May 2004 rating decision, and a noncompensable rating was assigned under Diagnostic Code 5003. The veteran contends a higher disability rating should be granted because his disability has worsened. In a November 2007 decision, the RO granted the veteran a 10 percent rating for each shoulder under Diagnostic Codes 5003 for the right shoulder and 5024 for the left shoulder. Since the preponderance of the evidence is against the veteran's claim, the appeal will be denied. The veteran's right shoulder disability is currently rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5003, and the veteran's left shoulder disability is currently rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5024, based on pre-military service discharge examination, and evaluated by further reference to Diagnostic Code 5003. The latter code provides that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. If the disability is noncompensable under the appropriate diagnostic code provision for the joint involved, a 10 percent disability rating will be for application for such major joint or group of minor joints affected by limitation of motion. Id. Limitation of motion needs to be objectively shown by findings such as swelling, muscle spasm, or painful motion. Id. In the absence of limitation of motion, a 10 percent disability rating is warranted for X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and a 20 percent disability rating is warranted with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joints with occasional incapacitating exacerbations. Id. Diagnostic Code 5201 provides evaluations for limitation of function of the shoulder and arm. Under 38 C.F.R. § 4.71a, Diagnostic Code 5201, a 20 percent evaluation is warranted for limitation of arm motion of the major extremity at shoulder level. A 30 percent evaluation is warranted for limitation of arm motion of the major extremity when motion is limited to midway between side and shoulder level. A 40 percent evaluation is warranted when the limitation of motion is 25 degrees from the side. The Board must also consider a veteran's pain, swelling, weakness, and excess fatigability when determining the appropriate evaluation for a disability using the limitation of motion diagnostic codes. 38 C.F.R. §§ 4.40, 4.45; See Johnson v. Brown, 9 Vet. App. 7, 10 (1996); DeLuca v. Brown, 8 Vet. App. 202 (1995). At the August 2005 Travel Board hearing, the veteran reported that he experienced weakness in his left shoulder and that it interfered with his occupation in performing repeated overhead activities as a mechanic. As to his right shoulder, he complained of more pain than was present in his left. The December 2003 examination report reflects that the veteran did not complain about his shoulder condition interfering with his activities of daily living. The examiner found the veteran's shoulders to be normal upon physical examination. In particular, the examiner noted that both shoulders were normal in outline and symmetric in form and function. There was no muscle atrophy, and no heat, redness, swelling or effusion. The examiner also noted that sensory perception and power were full and within normal limits, and that the range of motion was without restriction or pain. 4.40, 4.45 The only abnormality was that there was that upon X-ray, the veteran was noted to have mild degenerative arthritic changes in his shoulders. At the August 2007 VA examination, the veteran was found to have limitation of motions in his shoulders as follows: Right Shoulder Type of Motion Veteran (in degrees) Normal (in degrees) External Rotation 80 90 Internal Rotation 50 90 Left Shoulder Type of Motion Veteran (in degrees) Normal (in degrees) Flexion 160 180 Abduction 160 180 External Rotation 80 90 Internal Rotation 50 90 Upon X-ray, the veteran's shoulders were not found to have any abnormalities. While the limitation of motion in both of the veteran's shoulders is not compensable under Diagnostic Code 5201, as to the medical evidence, the Board is of the opinion that the evidence is in equipoise as to both the left and right shoulder level of disability and will grant a 20 percent rating as to each shoulder. Since there is evidence of arthritis established by X-ray findings in both shoulders and there is not evidence of a compensable limitation of motion under Diagnostic Code 5201, the veteran's shoulders should be evaluated under Diagnostic Code 5003 for degenerative arthritis. Under Diagnostic Code 5003, a 20 percent rating is warranted for X-ray evidence of arthritis involving two or more major joints or two or more minor joints groups, with occasional incapacitating exacerbations. X-rays of the veteran's shoulders from the December 2003 VA examination reflect that the veteran has arthritis in both shoulders. However, the veteran has reported near-constant pain of both shoulders in his employment as a mechanic. It is significant in this regard that the veteran reports impairment of overhead work - clearly a movement requiring sustained shoulder functionality. While the VA examinations are clearly relevant, it is the judgment of the Board that the veteran's testimony as to loss of function while doing sustained overhead work is tantamount to findings consistent with limitation of motion of the arm to shoulder level under 38 C.F.R. § 4.71a, Diagnostic Code 5201 and is sufficient to place the evidence in equipoise. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (As to the Board's obligation to assess the credibility and weight of all the evidence, including testimony and medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant). The claimant will be accorded the benefit of the doubt. 38 U.S.C.A. § 5107(b). A 20 percent evaluation will be assigned for both the left and right shoulder. Increased initial evaluation for osteoarthritis of both knees, each currently evaluated as 10 percent disabling The veteran was initially granted service connection for both knees in a May 2004 rating decision, and a noncompensable rating was assigned under Diagnostic Code 5003. The veteran contends a higher disability rating should be granted because his disability has worsened. In a November 2007 decision, the RO granted the veteran a 10 percent rating for each knee. Since the preponderance of the evidence is against the veteran's claim for a rating in excess of 10 percent, the appeal will be denied. The veteran's knee disabilities are currently rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5003. Diagnostic Code 5003 provides that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. If the disability is noncompensable under the appropriate diagnostic code provision for the joint involved, a 10 percent disability rating will be for application for such major joint or group of minor joints affected by limitation of motion. Id. Limitation of motion needs to be objectively shown by findings such as swelling, muscle spasm, or painful motion. Id. In the absence of limitation of motion, a 10 percent disability rating is warranted for X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and a 20 percent disability rating is warranted with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joints with occasional incapacitating exacerbations. Id. For a knee disorder, an evaluation of 20 percent is available where the leg flexion is limited to 30 degrees or the leg extension is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261 (2007). During the August 2005 Travel Board hearing, the veteran reported that he experienced constant pain in both knees and that after driving for over an hour, he would need to stop to flex his knees. At the December 2003 VA examination, the veteran's knees were noted to be normal in outine and symmetric in form and function. There was noted no heat, redness or tenderness and no effusion was noted. There was noted no muscle atrophy and sensory perception was in normal limits. The veteran displayed a full range of motion in both knees without any evidence of recurrent subluxation or locking pain. X-rays of the veteran's knees revealed mild bilateral knee osteoarthropathy. VA treatment records, dated November 2006, reflect that the veteran complained of left knee pain after running and received a knee brace. X-rays of the left knee were taken and revealed degenerative changes in the medial meniscus and a small joint effusion. Most recently, the August 2007 VA examination report shows that the veteran had pain and instability in his knees, but that there were no episodes of dislocation or subluxation. The veteran also had effusion in his left knee. The range of motion in the veteran's knees was within normal limits, and X-rays revealed no abnormalities and no significant degenerative joint disease. The medical evidence does not show that the veteran's knee flexion is limited to 30 degrees and his leg extension is limited to 15 degrees, as required under Diagnostic Codes 5260 and 5261 for a 20 percent rating. Therefore, a rating in excess of 10 percent is not warranted, and the appeal is denied. Increased initial evaluation for degenerative arthritis of both ankles, each currently evaluated as 10 percent disabling The veteran was initially granted service connection for both ankles in a May 2004 rating decision, and a noncompensable rating was assigned under Diagnostic Code 5003. The veteran contends a higher disability rating is warranted because his disability has worsened. In a November 2007 decision, the RO granted the veteran a 10 percent rating for each knee. Since the preponderance of the evidence is against the veteran's claim for a rating in excess of 10 percent, the appeal will be denied. The veteran's ankle disabilities are currently rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5003. Diagnostic Code 5003 provides that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. If the disability is noncompensable under the appropriate diagnostic code provision for the joint involved, a 10 percent disability rating will be for application for such major joint or group of minor joints affected by limitation of motion. Id. Limitation of motion needs to be objectively shown by findings such as swelling, muscle spasm, or painful motion. Id. In the absence of limitation of motion, a 10 percent disability rating is warranted for X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and a 20 percent disability rating is warranted with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joints with occasional incapacitating exacerbations. Id. Limitation of motion of the ankle is rated under Diagnostic Codes 5271, which provides that for moderate limitation of motion of the ankle, a 10 percent disability rating is warranted; and for marked limitation of motion a 20 percent disability rating is warranted. 38 C.F.R. § 4.71a Diagnostic Code 5271 (2007). The standard range of motion of the ankle is from 20 degrees of dorsiflexion to 45 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II (2007). At the August 2005 Travel Board hearing and in an August 2004 statement, the veteran reported that he experiences constant pain in both ankles and that he has to be careful with his activities to prevent his ankles from giving out on him. VA examination report, dated December 2003, shows that the veteran had a full range of motion in both ankles and that upon physical examination, his ankles were normal. Both feet were noted to be normal in outline, and there was no evidence of heat, redness or tenderness, lack of stability or endurance. There were no calluses to indicate unusual pressure points, and movement was noted to be not compromised. There was no sensory or vascular disturbance identified and there was good weight bearing alignment of the Achilles tendon. While x-rays of the veteran's ankles were noted to indicate minimal degenerative arthritic changes, pain, weakness, lack of endurance, fatigue or incoordination did not effect on the range of motion.. VA treatment records from June 2005 show that the veteran complained of bilateral ankle pain. No abnormalities were noted upon physical examination. The veteran was measured for orthopedic support inserts to alleviate his ankle pain. More recently, an August 2007 VA examination report reflects that the veteran complained of chronic pain in both ankles. However, the veteran's range of motion in his ankles was normal, except that his plantar flexion in his left ankle was limited to 30 degrees out of 45 degrees. Upon X-ray, the veteran's ankles were found to have small heel spurs. The medical evidence does not show that the veteran has a marked limitation of motion in either ankle to warrant a 20 percent rating under Diagnostic Code 5271. Therefore, a rating in excess of 10 percent is not warranted, and the appeal is denied. ORDER An evaluation for spondylosis of the cervical spine in excess of 10 percent is denied. An evaluation of 20 percent for spondylosis of the lumbar spine is granted, subject to the statutes and regulations governing the payment of monetary awards. An evaluation for degenerative arthritis of the right foot with a right foot heel spur in excess of 10 percent is denied. An evaluation for degenerative arthritis of the left foot with a left foot heel spur in excess of 10 percent is denied. An evaluation of 20 percent for degenerative arthritis of the right shoulder is granted, subject to the statutes and regulations governing the payment of monetary awards. An evaluation of 20 percent for degenerative arthritis of the left shoulder is granted, subject to the statutes and regulations governing the payment of monetary awards. An evaluation for right knee osteoarthritis in excess of 10 percent is denied. An evaluation for left knee osteoarthritis in excess of 10 percent is denied. An evaluation for degenerative arthritis of the right ankle in excess of 10 percent is denied. An evaluation for degenerative arthritis of the left ankle in excess of 10 percent is denied. ______________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs