Citation Nr: 1313855 Decision Date: 04/25/13 Archive Date: 05/03/13 DOCKET NO. 08-06 142 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to a rating higher than 40 percent for a low back disability, degenerative disc and joint disease of the lumbosacral spine. 2. Entitlement to a rating higher than 30 percent for acquired equinus of both feet. 3. Entitlement to a rating higher than 10 percent for radiculopathy of the right lower extremity prior to May 21, 2012, and to a rating higher than 20 percent since (so including considering whether an earlier effective date is warranted for this higher 20 percent rating for this disability). REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Appellant-Veteran ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The Veteran served on active duty from July 1985 to July 1988. This appeal to the Board of Veterans' Appeals (Board) is from a November 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2010, in support of his claims, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge of the Board, commonly referred to as a Travel Board hearing. During the hearing, the Veteran submitted additional evidence and waived his right to have the RO initially consider it. 38 C.F.R. §§ 20.800, 20.1304(c) (2012). The Board subsequently, in December 2010, remanded the claims to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development and consideration - but especially to obtain additional VA treatment records and to have the Veteran undergo a VA compensation examination to reassess the severity of his disabilities. He had this VA compensation examination in February 2011 and, after considering the results of it, the AMC issued a supplemental statement of the case (SSOC) in March 2012 continuing to deny the claims. That SSOC indicated the AMC also had tried to obtain the additional VA treatment records mentioned in the Board's remand, and that, although there were records in the file dated from October 2007 to September 2010, which were considered, there was no indication VA had treated the Veteran at any time since, so no more recent VA treatment records to obtain. And, indeed, the Veteran had indicated in his March 2012 response to that SSOC that he had no other information or evidence to submit. He therefore had asked the AMC to return his case to the Board for further appellate consideration as soon as possible. Thus, no additional VA treatment records were forthcoming. See 38 C.F.R. § 3.159(c)(2) and (e)(1). Nevertheless, as concerning the VA compensation examinations the Veteran also had had on remand, the examiner unfortunately had not provided responses to all of the questions the Board had posed in its remand, so there had not been compliance with the Board's remand directives. Hence, another remand was required. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (indicating the Veteran is entitled, as a matter of law, to compliance with remand directives, and that the Board itself commits error in failing to ensure this compliance). So, in April 2012, the Board again remanded these claims for still further development and consideration, specifically, for an addendum to the February 2011 VA examination report. This addendum was provided on May 21, 2012, and in compliance with the Board's remand instructions. Based on this additional comment, the AMC issued a November 2012 rating decision granting a higher 20 percent rating for the Veteran's right lower extremity radiculopathy effective May 21, 2012, so as of the date of that addendum medical opinion. The AMC also issued another SSOC later in November 2012 denying an even higher rating for this right lower extremity radiculopathy, meaning a rating higher than 20 percent, and confirming and continuing the previous denials of higher ratings for the low back disability and equinus of both feet. In his December 2012 response to that SSOC, the Veteran waived the right to have VA wait a minimum of 30 days before recertifying his appeal to the Board (BVA), requesting instead that the RO (AMC) go ahead and forward his case on to the Board immediately. He also waived his right to submit additional evidence for consideration by the RO, which meant that, if he located and/or wished to submit additional evidence later, he was waiving his right to have his case again remanded (sent back) to the RO for initial consideration of this additional evidence, requesting instead that the Board consider any new evidence he submitted in the first instance, during its adjudication of his appeal. The AMC therefore recertified his appeal to the Board in January 2013. The Veteran however since has submitted a statement in support of claim (VA Form 21-4138) in February 2013, through his representative, along with an additional statement from the representative, expressing appreciation for the grant of the higher 20 percent rating for the radiculopathy affecting the right lower extremity, but also arguing that an earlier effective date is warranted for this higher rating. Specifically, they assert the higher rating should at least be made retroactive to the date of the actual VA compensation examination the Veteran initially had on remand, which was in February 2011 although he mistakenly indicates it was in March or April 2011, if not even earlier back to when he filed this and his other claims in 2006. In any event, since the issue now before the Board as concerning this claim partly concerns whether he was entitled to a rating higher than 10 percent for this right lower extremity radiculopathy prior to when he effectively received the higher 20 percent rating for this disability as of May 21, 2012, this necessarily also includes considering whether he is entitled to an earlier effective date for this higher 20 percent rating. And the accompanying statement from his representative, reasserting the request for this additional consideration as concerning the effective date of this higher 20 percent rating, also indicates they were waiving their right to have the RO, rather than the Board, initially consider the additional evidence they were submitting, including the representative's memorandum and the Veteran's attached VA Form 21-4138, statement in support of claim. See again 38 C.F.R. §§ 20.800, 20.1304(c) (2012). The Board also sees that, in a November 2007 rating decision issued subsequent to receipt of the Veteran's claim on August 17, 2006, for an increase in the rating for his low back disability, the RO granted service connection for left lower extremity radiculopathy as also associated with this low back disability, assigning a 10 percent rating for this additional disability retroactively effective from February 18, 2005. Service connection and separate ratings therefore are in effect for radiculopathy affecting both lower extremities, left and right. Notably, though, the Veteran did not appeal that decision assigning the 10 percent rating for the radiculopathy affecting his left lower extremity, nor has he since indicated a desire to have this assigned rating reconsidered. Accordingly, the rating for his left lower extremity radiculopathy in not an issue currently on appeal to the Board and resultantly will not be considered in this decision, only instead the ratings for the underlying low back disability, itself, as well as for the radiculopathy affecting the right lower extremity. It additionally warrants mentioning that, when evidence of unemployability is submitted during the course of an appeal concerning a rating assigned for a service-connected disability or disabilities, a derivative claim is raised for a total disability rating based on individual unemployability (TDIU) and will be considered part and parcel of the claim for benefits for the underlying disability or disabilities. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Here, the Veteran affirmatively reported that his service-connected disabilities prevent him from working more than part-time hours at his current job, although he also has reported continuing to earn ongoing commissions from previous work transactions and that, consequently, he would not qualify for a TDIU since his employment, albeit only involving a short number of work hours currently, still amounts to a substantially gainful occupation based on the ongoing income he is receiving. See 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, and 4.19. Given, then, this explicit testimony and his seeming acknowledgment that he is not entitled to a TDIU, the Board is not considering this entitlement as part of this appeal. Id., Rice, 22 Vet. App. at 453-54. FINDINGS OF FACT 1. The Veteran's lumbar spine disability has been manifested by limitation of forward flexion to less than 30 degrees when considering his associated pain; ankylosis and incapacitating episodes are not shown, however. 2. The equinus of his feet has been manifested by marked limitation of motion of both ankles, but pronounced pes planus and severe injury of his feet have not been shown. 3. The radiculopathy of his right lower extremity has been manifested by moderate impairment of the right popliteal nerve; severe impairment has not been shown. CONCLUSIONS OF LAW 1. The criteria are not met for a rating higher than 40 percent for the service-connected low back disability. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DCs) 5235-5243 (2012). 2. Effectively since August 17, 2006, the criteria however are met for a separate 20 percent rating, though no greater rating, for the right acquired equinus based on associated marked limitation of motion of the right ankle. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.14, 4.71a, DC 5271 (2012). 3. Also effectively since August 17, 2006, the criteria are met as well for a separate 20 percent rating, though no greater rating, for the left acquired equinus based on associated marked limitation of motion of the left ankle. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.14, 4.71a, DC 5271 (2012). (Resultantly, then, whereas the Veteran previously had a single or collective 30 percent rating for this disability in the aggregate, he has established his entitlement instead to a separate 20 percent rating for each foot, which in turn results in a higher combined rating of 40 percent. See 38 C.F.R. § 4.25). 4. Also effectively since August 17, 2006, so not just instead as of May 21, 2012, the criteria are met for a 20 percent rating, though no greater rating, for the radiculopathy of the right lower extremity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.124a, DC 8521 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). A September 2006 letter explained the evidence necessary to substantiate these claims and informed the Veteran of his and VA's respective responsibilities in obtaining this supporting evidence. Moreover, consider that, in Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009), the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) vacated the lower decision of the U. S. Court of Appeals for Veterans Claims (Court/CAVC) in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), notably concluding that "generic" notice in response to a claim for an increased rating is all that is required to fulfill the VCAA notification obligation, not also alternative DCs or evidence of how the disability or disabilities affect the Veteran's daily-life experiences and activities. In addition, the letter explained how a disability rating is determined and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). As well, the letter was provided prior to initially adjudicating these claims in the November 2006 decision at issue in this appeal, so in the preferred sequence. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Consider, as well, that the Veteran testified at an October 2010 hearing at the RO before this Traveling Member (Veterans Law Judge (VLJ)) of the Board. According to 38 C.F.R. § 3.103(c)(2), it is the responsibility of the hearing officer, which in this particular instance was the presiding VLJ of the Board, to explain fully the issues and suggest the submission of evidence that the Veteran may have overlooked and that would be advantageous to his position. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that the hearing officer's duties under § 3.103(c)(2) are twofold. First, the hearing officer must explain fully the issues still outstanding that are relevant and material to substantiating the claim by explicitly identifying them for the claimant. Id., at 496. Second, the hearing officer must suggest that the claimant submit evidence on an issue material to substantiating the claim when such evidence is missing from the record or when the testimony at the hearing raises an issue for which there is no evidence in the record. Id., at 496-97. This was done in this instance as, in questioning, the presiding VLJ sought to identify any pertinent evidence not then of record that might have been overlooked or was outstanding that might tend to substantiate the claims. And, indeed, partly based on the testimony provided during that October 2010 Travel Board hearing, including in response to that line of questioning, the Board since has twice remanded these claims for further development - initially in December 2010 and more recently in April 2012. As such, the Board finds that, consistent with Bryant, the presiding VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Veteran has received all required notice and prompting for additionally-needed evidence concerning these increased-rating claims. As for the duty to assist him with these claims, the claims file contains his service treatment records (STRs), VA treatment records, the reports of his VA compensation examinations, and his and his representative's lay statements and testimony, including the transcript of the October 2010 Travel Board hearing. Since the Board's most recent April 2012 remand of these claims, there is nothing in the file suggesting there is any other evidence needing to be obtained and considered. Indeed, to the contrary, the Veteran essentially indicated in his December 2012 response to the SSOC most recently issued in November 2012 that he wanted his claims immediately recertified to the Board, that is, without waiting for expiration of the 30-day grace period he had for submitting additional evidence and/or argument. Hence, no further action is required to comply with the duties to notify and assist him in developing the facts and evidence pertinent to these claims II. Analysis Disability ratings are based on average impairment in earning capacity resulting from a particular disability, and are determined by comparing symptoms shown with criteria in VA's Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations, which are potentially applicable, based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. Functional loss due to pain is rated at the same level as functional loss where motion is impeded. Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40. Also, if a Veteran already has the maximum rating assignable based on limitation of motion, it is not necessary to consider these provisions accounting for his pain, etc. Johnston v. Brown, 10 Vet. App. 80 (1997). Moreover, in Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. This consideration is required irrespective of whether the claims concern initial or, as here, established ratings. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When, however, the Veteran is appealing for increases in already established ratings, rather than initial ratings, the relevant temporal focus in considering the severity of the disabilities is not just from when he filed his claims, rather, even from one year prior. Hart, supra. See also 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). In Harper v. Brown, 10 Vet. App. 125, 126 (1997), the Court discussed the three possible effective dates that may be assigned for a higher rating depending on the facts of the case: (1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1)); (2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2)); or (3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)). See also Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. May 20, 2010) (explaining that the legislative history of 38 U.S.C.A. § 5110(b)(2) was to provide Veterans a one-year grace period for filing a claim following an increase in the severity of a service-connected disability). Where there is a question as to which of two evaluations apply, 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. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, meaning about evenly balanced for and against the claim, with the Veteran prevailing in either event, or whether instead the preponderance of the evidence is against the claim, in which case the claim is denied. 38 C.F.R. § 4.3. See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). A. Low Back Disability Since he has both degenerative joint disease (DJD, i.e., arthritis) and degenerative disc disease (DDD) of his lumbosacral spine, the Veteran's low back disability may be evaluated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on incapacitating episodes. Under the General Rating Formula for Diseases and Injuries of the Spine, forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine is rated as 40-percent disabling. Unfavorable ankylosis of the entire thoracolumbar spine is evaluated as 50-percent disabling, and unfavorable ankylosis of the entire spine (so when additionally considering the adjacent cervical segment) is evaluated as 100-percent disabling. The General Rating Formula specifies that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. Note (2). Provided, however, that, in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion generally recognized by VA. Note (3). The term "combined range of motion" refers to "the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation"; provided, however, that the aforementioned normal ranges of motion for each component of spinal motion, as recognized by VA, are the maximum that can be used for calculation of the combined range of motion, and each range of motion measurement is to be rounded to the nearest five degrees. Id., Notes (2) and (4). Under the Formula for Rating IVDS, i.e., disc disease, based on incapacitating episodes, when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months, a 60 percent evaluation is warranted; with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, a 40 percent evaluation is warranted; and with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, a 20 percent evaluation is warranted. Note (1) of this DC provides defines an incapacitating episode as a period of acute signs and symptoms due to IVDS requiring bed rest prescribed by a physician and treatment by a physician. In his August 2006 claim for increase, the Veteran indicated that he continued to have pain in his lower back that had gotten more intense and had increased in frequency. In an October 2006 letter, the Veteran's employer indicated that over the last several years he had gone from being an exemplary employee to a marginal one. He had missed several days a week of work and the days he was able to come in, he generally could work only 4 to 6 hours due to pain. His position had been modified to lessen his physical activities at work as it was very difficult for him to move around due to extreme pain. His knowledge of the industry and his contacts still did make him a valuable employee. During an October 2006 VA examination, it was noted that he had had a herniated disc at L5/S1 with consequent surgery in 1987. Since then he had experienced pain shooting down both legs into the feet with persistent problems. He was diagnosed with a T10/T11 herniated disk eventually as well. His low back pain was constant and much more intense when he did not take medication. He had pain that shot down the posterolateral calves into the bottoms of both feet and the lateral aspects of both feet on a daily basis. The pain was never relieved. He was then currently working 12 to 15 hours a week and reported that he could not work more than that because of pain. He could not take Vicodin and still be at work. He reported difficulty with standing and walking. His feet would tingle and hurt when he tried to stand or walk. The most he could walk was one block and the most he could stand was between 5 and 10 minutes. This limited his home activities such as taking the garbage out or emptying the dishwasher. He had difficulty doing any home activities when he had to bend at the waist. This limited his work as a customer sales representative. He had been incapacitated once over a 24-hour period, but bedrest was not prescribed by a physician. An X-ray from March 2005 had shown degenerative disk disease at L5/S1. Physical examination showed a reduction in range of motion of the lumbar spine with bilateral paravertebral muscle spasm. Range of motion was 10 degrees flexion, 5 degrees extension, 5 degrees right and left lateral flexion and 5 degrees right and left rotation. These motions all caused pain. He was unable to repetitively move five times because of pain. The pertinent diagnostic assessment was lumbar strain with status postoperative repair with degenerative disk disease of the lumbar and thoracic spine. With regards to Deluca factors pain had a major functional impact. X-rays were consistent with his disability and he was not able to move his spine during the examination for ascertainment of Deluca criteria. In his November 2006 NOD he indicated that he was only working 10 hours per week due to pain from his back, foot and right lower extremity disabilities. A November 2006 VA primary care note shows he was complaining of worsening low back pain, which required escalation of his dose of pain medicine. He reported that he had occasionally missed work due to the pain. In a November 2007 rating decision, the RO granted service connection for left lower extremity radiculopathy and assigned a 10 percent rating retroactively effective from February 18, 2005. In a February 2008 statement, the Veteran indicated he had been having incapacitating episodes due to back pain and taking pain medication totaling approximately 6 months per year for the last several years. It was very difficult for him to function without the pain medication but the medication made him very sleepy and made him feel drugged, also making it difficult for him to function. He then currently was taking 6 Vicodin and 4 Ibuprofen 800 mg tablets per day for pain management. Due to the pain and pain medications, he had been placed on part-time status, only working approximately 8 to 12 hours per week. He indicated that he was ineligible for unemployability because he had negotiated several long-term contracts in the past and still received a commission for those contracts plus the pay for the hours that he did work. During his October 2010 Travel Board hearing he testified that he continued to have problems functioning due to his back pain and the side effects from taking his pain medication, Vicodin. He noted that both of these problems were continuing to interfere with his ability to work as a customer service representative for an aviation repair station, particularly because he had to file paperwork to meet Federal Aviation Administration (FAA) requirements. During his more recent February 2011 VA examination, he reported that his low back pain was constant, sharp and achy. He indicated there was associated weakness, fatigue, lack of endurance, stiffness and instability. There problems were worst with bending, standing and sitting and were improved with rest, heating pads, Vicodin and Motrin. He reported severe flare ups that occurred weekly with incapacitating episodes, lasting from 1 to 3 days, resulting in him having to rest and take medicine. He noted that he was still working part time as a customer service representative. Objective physical examination revealed he was walking with a limp. He was able to dress and undress, albeit with back pain. Active range of motion was 10 degrees flexion with pain, 5 degrees extension with pain, 10 degrees bilateral lateral flexion with pain and 10 degrees bilateral rotation with pain. There was absence of weakness, fatigability, incoordination and instability. The examination was done three times without any additional loss of function. The pertinent diagnostic assessment was lumbar degenerative disc disease status post operative repair of the lumbar spine. In a May 2012 addendum, the February 2011 VA examiner indicated that the Veteran had not exhibited acute signs and symptoms of low back disability requiring bedrest prescribed by a physician. The examiner also clarified that there was no additional loss of motion on repetitive use during the February 2011 VA examination and no ankylosis found during that examination either. As the Veteran is already assigned a 40 percent rating for his low back disability under the General Rating Formula for Diseases and Injuries of the Spine, the only basis for assigning a higher rating would be the presence of ankylosis - either of the thoracic and lumbar (thoracolumbar) segment of his spine, in particular, or of his entire spine when also considering the adjacent cervical segment. However, ankylosis has neither been shown nor alleged. Ankylosis is stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988) (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure."); see also Coyalong v. West, 12 Vet. App. 524, 528 (1999). See, too, Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. As further explained in the amended regulations, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. See Note (5) in DCs 5235-5242. Here, while there certainly is no disputing the extent of the Veteran's pain and discomfort greatly restricts or lessens his range of motion, it has not been shown his motion is so reduced as to be tantamount to ankylosis, in effect meaning absolutely no motion at all. And, indeed, to the contrary, the VA compensation examiner confirmed this is not, in fact, the case. Accordingly, there is no basis for assigning a rating higher than 40 percent under the General Rating Formula. 38 C.F.R. § 4.71a, DCs 5235-42. And as for alternatively rating this low back disability under DC 5243, the Formula concerning IVDS, the Veteran has reported often experiencing what he considers incapacitating episodes because of this disability. But there is no evidence or allegation the episodes, even accepting they have occurred, necessarily have involved bedrest and been prescribed by a physician. So, in a literal sense, they have not met the VA regulatory definition of a truly incapacitating episode. In this regard, the February 2011 VA examiner, in the May 2012 addendum, specifically indicated the Veteran had not exhibited acute signs and symptoms requiring bedrest prescribed by a physician. Nor are there other medical findings of record indicating that such physician-prescribed bedrest was required in response to the Veteran's low back symptomatology. Accordingly, a rating higher than 40 percent based on incapacitating episodes also is not warranted. Id. Additional factors that could provide a basis for an increase also have been considered; however, the evidence does not show the Veteran has functional loss from his low back disability beyond that currently compensated. 38 C.F.R. §§4.40, 4.45, 4.59; Deluca, 8 Vet. App. 202 (1995). Notably, during the February 2011 VA examination, the examiner found that the Veteran showed no additional loss of function based on three repetitions and that he did retain some range of motion, albeit highly limited. During the earlier October 2006 VA examination, the examiner did observe the Veteran was unable to move his spine during the examination for ascertainment of Deluca criteria. But even given that finding does not equate to a level of functional loss compatible to ankylosis (i.e., the spine permanently stuck in a fixed position), a finding that as mentioned would be necessary to assign a higher 50 percent or even greater 100 percent rating based on such loss. Thus, even when explicitly factoring in the Veteran's overall pain on repetitive use, and his inability to perform range-of-motion exercises more than one time during the October 2006 examination, assignment of a rating higher than 40 percent based on functional loss is not warranted. B. Equinus of both feet The Veteran's service-connected acquired equinus has been rated by analogy to flatfoot disability (i.e., pes planus) under DC 5276. Under this Code, severe flatfoot, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities warrants a 20 percent rating if unilateral, and a 30 percent rating if bilateral. Pronounced pes planus, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achilles on manipulation, not improved by orthopedic shoes or appliances warrants a 30 percent rating if unilateral, and a 50 percent rating if bilateral. 38 C.F.R. § 4.71a. Also, however, as the Veteran's equinus involves limitation of motion of the ankle, a rating under DC 5271 additionally must be considered. The assignment of a particular DC is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One DC may be more appropriate than another based on such factors as the Veteran's relevant medical history, his current diagnosis, and demonstrated symptomatology. Any change in DC by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Under DC 5271, moderate limitation of ankle motion warrants a 10 percent rating and marked limitation of motion warrants a 20 percent rating. Id. For VA rating purposes, normal range of motion of the ankle is 20 degrees dorsiflexion and 45 degrees plantar flexion. 38 C.F.R. § 4.71a, Plate II. Other injuries of the foot also may be rated under DC 5284. Under this code, a moderate foot injury warrants a 10 percent rating, a moderately severe foot injury warrants a 20 percent rating and a severe foot injury warrants a 30 percent rating. With actual loss of use of the foot, a 40 percent rating is assigned. The Veteran's claim for increase was received on August 17, 2006. During his initial October 2006 VA examination in response to the claim, he reported that he had experienced pain in both feet for many years. Most of the pain was in the bottom of the feet and the sides of the feet. He did not use any inserts or assistive devices. He reported that his limitations were walking more than a block or standing more than 5 to 10 minutes at a time due to foot pain. He had had epidural injections in the 1990s and a pain injection two years prior which had seemed to help his foot pain somewhat. He had been limping for the past four years favoring the right leg. He primarily complained of pain but also complained of weakness and fatigability with walking more than a block. The primary driver of the disability appeared to be pain. He took Vicodin four times per day for pain in the feet, legs and back, which seemed to help his pain but did not improve his disability. He was using an assistive shoe insert device for his feet, which helped somewhat but no other treatment per se. A casted molded insert was being used on the left and an off the shelf insert was being used on the right. Objective physical examination showed he had mild diffuse weakness of both feet. He had difficulty dorsiflexing or plantar flexing the metatarsophalangeal joints of both toes and had minimal dorsiflexion and plantar flexion of the ankles (3/5 bilaterally). Physical examination additionally revealed he walked with an antalgic gait. He was not able to walk on his toes or his heels. He was not able to move the metatarsophalangeal joints at all. His feet seemed somewhat atrophic. There was tenderness diffusely in the plantar fascia. When the Veteran stood upright, he had a mild inward bowing of the Achilles tendons but there did not appear to be pes planus. There was pain with manipulation of the feet and pain with movement, particularly with palpation of the plantar fascia across the heel at the anterior aspect of the calcaneus attachment. There was also plantar fascia tenderness into the metatarsophalangeal joints of both feet. When he stood upright he had mild right pelvic tilt and dorsiflexion and plantar flexion of the ankles were 3/5 bilaterally. He did not have any edema, instability, calluses or abnormal shoe wear. The pertinent diagnostic assessment was plantar fasciitis. X-rays were consistent with his disability and he was unable to move his metatarsophalangeal joints for assessment of Deluca criteria. October 2006 VA X-rays of the feet resulted in a diagnostic impression of minor degenerative joint disease, i.e., arthritis. In his November 2006 NOD, the Veteran indicated that he was only working 10 hours per week due to pain attributable to his low back, foot and right lower extremity disabilities. In a January 2007 medical opinion, a VA physician found that the Veteran likely had a lumbar strain with status post operative repair with degenerative disc disease of the lumbar spine with a bilateral lower extremity radiculopathy and plantar fasciitis, as the primary drivers of disability in his case. The physician found that it was likely that the Veteran's pain in the leg and back, numbness in the leg on the left side were related to degenerative disk disease and degenerative joint disease. However, the etiology of the weakness in the feet was not known with any degree of medical certainty and did not specifically follow a dermatomal pattern. The inability to move the metatarsophalangeal joints was not likely caused by the lumbar condition as far as could be determined by review of the evidence in the claims file, as this did not really fit a known complication of a single disc pathology. It was not really consistent with an L5 radiculopathy either. During the October 2010 Travel Board hearing the Veteran testified that he continued to wear insoles for support, which were prescribed by his doctor. He noted that he had tried cortisone shots for his feet, which did not work and then he got the arch supports, which were helping. During the additional VA examination he since has undergone in February 2011, he reported that his bilateral foot disability limited him to walking about a 1/4 mile and standing no more than 5 or 10 minutes. The foot problem was relieved by rest and pain medicines. There was constant pain in both feet on standing and walking. Vicodin and Motrin seemed to help the pain somewhat. He reported moderate flare-ups occurring daily with incapacitating episodes requiring him to rest and take his medicines. Physical examination showed that he was walking with a limp. Examination of the feet showed no pes planus or pes cavus. There was equinus deformity but no laxity, crepitus, effusion or pain. There was absent tactile and pinprick sensation bilaterally. Passive range of motion did not elicit tenderness but he was tender to deep palpation of his soles. Active range of motion of the bilateral ankle joints was dorsiflexion to 10 degrees and plantar flexion to 20 degrees. There was an absence of pain, weakness, fatigability, incoordination and instability. There was no additional limitation of function after three repetitions of motion. The pertinent diagnostic assessment was plantar fasciitis. In the May 2012 addendum, the February 2011 VA examiner found that the overall level of impairment from the Veteran's acquired bilateral foot equinus was moderate. Considering DC 5271, the October 2006 VA examiner specifically found that the Veteran had minimal dorsiflexion and plantar flexion of the ankles (3/5 bilaterally). Similarly, the February 2011 VA examiner found that active range of the ankle joints bilaterally was dorsiflexion to 10 degrees and plantar flexion to 20 degrees. As normal dorsiflexion is considered to be 20 degrees and normal plantar flexion is considered to be 45 degrees, the Veteran's limitation of motion (i.e., 1/2 or less of full range of motion found during the February 2011 VA examination and 3/5 full range of motion found during the February 2011 VA examination) reasonably may be considered marked. This is particularly true given the October 2006 VA examiner's description of the motion as "minimal." Accordingly, a 20 percent rating is warranted for limitation of motion of each ankle under DC 5271. As these twin 20 percent ratings, in combination under 38 C.F.R. § 4.25, amount to a rating greater than 30 percent for the bilateral foot disability if rated instead in the aggregate, and as assignment of these ratings in addition to the single 30 percent rating for the equinus as analogous to pes planus would amount to impermissible pyramiding, these twin 20 percent ratings are assigned for the whole rating period in place of the 30 percent rating made by analogy to pes planus. 38 C.F.R. § 4.14. The evaluation of the same disability under several DCs, known as pyramiding, must be avoided. Id. Separate ratings may be assigned for distinct disabilities resulting from the same injury only where the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); see also Amberman v. Shinseki, 570 F.3d 1377, 1381 (2009). Despite the assignment of the separate 20 percent ratings back to the date of receipt of this claim, the Board must still consider whether ratings even greater than this are warranted under any other potentially applicable rating codes. A higher rating is not available under DC 5271. Considering DC 5276, although the Veteran is shown to have some level of tenderness on palpation of the bottom of his feet, he is not shown to have marked inward displacement or severe spasms of the tendo achillis on manipulation. Additionally, in May 2012 addendum, the February 2011 VA examiner found that the overall level of impairment from the service-connected foot disability was moderate. Thus, a higher 50 percent rating for disability analogous to pronounced bilateral pes planus is not warranted. Similarly, as the February 2011 VA examiner found that the overall level of foot disability was moderate, there is no basis for assigning higher than 20 percent ratings for each foot for severe injury under DC 5284. Additional codes for rating the feet and ankles that have ratings available in excess of the twin 20 percent ratings assigned have been considered, but as neither ankle ankylosis nor pes cavus is shown, there is no basis for assigning higher ratings under these codes. Additional factors that could provide a basis for an increase also have been considered; however the evidence does not show the Veteran has functional loss beyond that currently compensated. 38 C.F.R. §§ 4.40, 4.45, 4.59; Deluca, 8 Vet. App. 202 (1995). In this regard the February 2011 VA examiner specifically found that there was no additional limitation of function after three repetitions of ankle motion. In October 2006, the VA examiner did note the Veteran was not able to move the metatarsophalangeal joints for assessment of Deluca criteria. There was no finding that he would not be able to move the ankle joints, at least minimally on repetitive use, however. Consequently, this finding does not form a basis for assigning a higher rating for functional loss equivalent to ankylosis of the ankle. Additionally, given that the November 2011 VA examiner generally assessed the Veteran's overall level of foot disability as moderate and did not find additional limitations on repetitive use, and given that the October 2006 VA examiner did not actually provide a Deluca assessment, the weight of the evidence indicates the twin 20 percent ratings appropriately compensate the Veteran for his functional loss. C. Radiculopathy of the Right Lower Extremity This increased-rating claim also was filed on August 17, 2006. This disability is currently evaluated pursuant to 38 C.F.R. § 4.124, DC 8521. Under this code, a 10 percent disability rating is warranted when there is mild incomplete paralysis of the external popliteal nerve (common peroneal). A 20 percent disability rating is warranted for moderate incomplete paralysis of the external popliteal nerve, and a 30 percent disability rating is warranted for severe incomplete paralysis of the external popliteal nerve. A 40 percent disability rating is warranted when there is complete paralysis of the external popliteal nerve (common peroneal); foot drop and slight drop of first phalanges of all toes, an inability to dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes lost; abduction of foot lost, adduction weakened; or anesthesia covering the entire dorsum of the foot and toes. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to a varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. During the October 2006 VA examination, the Veteran reported that he had had lower extremity radiculopathy since 1987. It seemed to be worse on the right side than on the left. The pain was constant and unremitting and had caused him to limp for the past 4 years. Physical examination showed that the Veteran walked with a mild limp. Straight leg raising bilaterally provoked a sensation of discomfort in the thighs and calves. The Veteran did have an antalgic gait. Sensory examination revealed some decreased sensation to light touch diffusely in the lower extremities in a nondermatomal pattern. The pertinent diagnostic assessment was bilateral lower extremity radiculopathy. The examiner noted that the Veteran had had an EMG study done on April 2005, which had shown a probable left L5 radiculopathy. In his November 2006 NOD, the Veteran indicated that he was only working 10 hours per week due to pain from his low back, foot and right lower extremity disabilities. In a January 2007 medical opinion, a VA physician found that the Veteran likely had a lumbar strain with status post operative repair with degenerative disc disease of the lumbar spine with a bilateral lower extremity radiculopathy and plantar fasciitis, as the primary drivers of disability in his case. The physician found that it was likely that the Veteran's pain in the leg and back, numbness in the leg on the left side were related degenerative disk disease and degenerative joint disease. However, the etiology for weakness in the feet was not known with any degree of medical certainty and did not specifically follow a dermatomal pattern. The inability to move the metatarsophalangeal joints was not likely caused by the lumbar condition as far as could be determined by the claims file, as this did not really fit a known complication of a single disc pathology. It was not really consistent with an L5 radiculopathy either. During the October 2010 Travel Board hearing the Veteran testified that he experienced pain and weakness in the right leg. He had fallen a few times because of the weakness. He had not noticed any muscle atrophy but he felt that his right leg was weaker than his left. During his February 2011 VA examination since provided he reported intermittent numbness and a constant burning sensation in his right lower extremity. He did not have any incontinence or foot drop. He indicated that he had severe flare-ups that occurred weekly with incapacitating episodes, which would last for 1 to 3 days, requiring him to rest and take medicine. Physical examination revealed he walked with a limp. Muscle strength in his lower extremities was normal, however, 5/5, though tactile and pinprick sensation in the lower extremities were absent. There was no muscle atrophy, edema, erythema, pain, tenderness or ankylosis. The pertinent diagnostic assessment was lower extremity radiculopathy. In the May 2012 addendum, the February 2011 VA examiner found that the overall level of impairment of the right popliteal nerve from the Veteran's right lower extremity radiculopathy was moderate. This evidence indicates he has experienced what amounts to moderate impairment of the right popliteal nerve during the entire appeal period. In this regard, in the May 2012 addendum, the February 2011 VA examiner, based on his February 2011 findings, specifically found that the impairment of the right popliteal nerve was moderate in degree. Also, although the earlier October 2006 VA examiner did not specifically characterize the level of impairment, he did find decreased sensation to light touch in the lower extremities and the Veteran indicated the radiculopathy seemed worse on the right side than on the left and that the pain was constant and unremitting. These findings are mostly similar to those from February 2011, which formed the basis for the assessment that the overall impairment from the radiculopathy was moderate in degree. Accordingly, a 20 percent rating for the right lower extremity radiculopathy is warranted for the entire appeal period, not just instead since the provision of the addendum opinion in May 2012. Considering the possibility of assignment of a higher rating, the objective findings of record show wholly sensory impairment. In this regard, although the Veteran has reported some right lower extremity weakness, November 2011 testing specifically showed 5/5 strength in the lower extremity muscles. There also is no other objective evidence of any motor impairment associated with the right lower extremity radiculopathy. Additionally, the February 2011 VA examiner specifically characterized the level of impairment as moderate and, as there are no other objective findings of a severe level of impairment, taken together these factors indicate that a higher 30 percent rating for severe impairment of the polpliteal nerve is unwarranted. D. Extra-schedular Consideration The above determinations are based upon consideration of applicable rating provisions. It should also be pointed out that there is no showing that the Veteran's service-connected low back disability, acquired equines of the feet, and right lower extremity radiculopathy involve so exceptional or unusual a disability picture as to render impractical the application of the regular schedular standards and in turn warrant the assignment of any higher evaluation on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). The symptoms of the low back disability, including pain, reduced range of motion, and muscle spasm, are contemplated by the regular schedular criteria. The symptoms of the bilateral equines of the feet, similarly including pain and consequent limitation of motion (including of the ankles), also are contemplated by the regular schedular criteria. Additionally, the symptoms of the lower extremity radiculopathy, including pain, decreased sensation and a feeling of weakness, are considered by the regular schedular rating criteria. Without sufficient evidence, then, suggesting the Veteran's disability picture is not contemplated by the regular Rating Schedule, referral for a determination of whether any of the disabilities requires the assignment of an extra-schedular rating is unwarranted. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). ORDER The claim for a rating higher than 40 percent for the low back disability, degenerative disc and joint disease of the lumbosacral spine, is denied. However, a 20 percent rating but no higher rating for marked limitation of motion of the left ankle and a 20 percent rating but no higher rating for marked limitation of motion of the right ankle are granted retroactively effective from August 17, 2006, so back to the date of receipt of this claim, in lieu of the previously assigned single 30 percent rating for bilateral foot disability analogous to bilateral pes planus, subject to the statutes and regulations governing the payment of VA compensation. As well, a 20 percent rating but no higher rating for the right lower extremity radiculopathy is granted, also retroactively effective from receipt of this claim on August 17, 2006 (so not just, instead, as of May 21, 2012), subject to the statutes and regulations governing the payment of VA compensation. ____________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs