Citation Nr: 1315958 Decision Date: 05/15/13 Archive Date: 05/15/13 DOCKET NO. 06-14 613 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for service-connected left foot degenerative joint disease. 2. Entitlement to an increased disability rating for the service-connected status post extensor tendon contracture and extensor hallucis longus tendon Z-plasty lengthening times two; status post fusion of interphalangeal joint, left hallus; status post tibial sesamoid planning and screw removal, rated as 10 percent disabling prior to February 7, 2011, and rated as 20 percent disabling on and after that date. 3. Entitlement to an increased disability rating for the service-connected low back strain, rated as 10 percent disabling prior to February 7, 2011 and rated as 20 percent disabling on and after that date. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD L.B. Cryan, Counsel INTRODUCTION The Veteran served on active duty from August 1978 to August 1992. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a December 2004 rating decision of the New Orleans, Louisiana, Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO granted service connection for degenerative joint disease of the left foot and assigned an initial 10 percent rating, effective from August 5, 2004; denied entitlement to service connection for schizophrenia; and confirmed and continued previously assigned 10 percent ratings for the service-connected status post extensor tendon contracture on the left and the service-connected low back strain. The Veteran disagreed with the 10 percent disability ratings assigned for all three service-connected disabilities, and disagreed with the denial of service connection for schizophrenia; and, this appeal ensued. The Veteran testified at a personal hearing before a Decision Review Officer (DRO) at the RO in April 2007. The Veteran subsequently testified at a video conference at the RO in August 2010 before the undersigned Veterans Law Judge sitting at the VA's Central Office, in Washington, DC. Transcripts of both hearings are of record. In November 2010, the Board remanded the case back to the RO for additional development of the record. Before the case was returned to the Board for appellate disposition, the RO issued a rating decision in April 2012 which granted increased ratings to 20 percent for the service-connected status post extensor tendon contracture on the left, and for the service-connected low back strain; both effective from February 7, 2011. As these awards are not a complete grant of the benefits sought, the issues remain in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). In that same decision, the RO confirmed and continued the previously assigned 10 percent rating for the service-connected degenerative joint disease of the left foot, and granted service connection for schizophrenia. The RO assigned a 100 percent schedular disability rating for the service-connected schizophrenia, effective from August 5, 2004. As the grant of service-connection for schizophrenia represents a complete grant of benefits sought on appeal with respect to that claim, it is no longer on appeal or before the Board at this time. A request for a TDIU, whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for increased compensation; there must be cogent evidence of unemployability in the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009), citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). In this case the Veteran has not asserted, and the evidence of record does not show, that his left foot/ankle and back disabilities render him unemployable. In a June 2012 private document/form regarding disability insurance, a physician indicated that the Veteran was unable to work at that time, and his primary diagnoses were cirrhosis of the liver, diabetes mellitus, COPD, and coronary artery disease. This document does not assert, or even suggest, that the Veteran's orthopedic disabilities prevent the Veteran from obtaining or maintaining employment. Accordingly, a claim for TDIU is not properly before the Board. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. During the period covered by this claim that is prior to January 14, 2009, the residuals of the status post extensor tendon contracture on the left were manifested by tender surgical scars, constant pain in the left foot and ankle, limited motion of the left foot due to fusion of the great toe, swelling and normal active and passive range of motion of the left ankle joint, with no changes in range of motion with repetitive movement and no flare-ups. 2. During the period covered by this claim that is prior to January 14, 2009, the Veteran's low back strain was manifested by reports of pain. The evidence does not demonstrate a combined range of motion of 120 degrees or less, motion limited to 60 degrees or less or evidence of spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis. 3. In a statement received at the RO on January 14, 2009, the Veteran reported that his left foot and ankle pain and back pain had worsened; the Veteran's statement as to the severity of his symptoms is considered competent and credible. 4. Objective findings from a February 7, 2011 VA examination report confirm the Veteran's January 14, 2009 statement, by showing that the Veteran's service-connected left foot disability with arthritis was manifested by pain, swelling, weakness, lack of endurance, abnormal weightbearing, decreased range of motion of the great toe, and weekly flare-ups with 60 percent loss of motion. The tarsal manifestations were a total loss of left ankle dorsiflexion, decreased speed of motion, abnormal motion, an antalgic gait with unusual shoe wear pattern, and use of a foot and ankle brace with only fair results; all of which more nearly approximates that of a moderately severe foot injury and moderately severe tarsal disability. 5. Objective findings from a February 7, 2011 VA examination report confirm the Veteran's January 14, 2009 statement, by showing that the Veteran's service-connected low back strain was manifested by limitation of motion to 60 degrees as a result of pain; disc space narrowing at L3-5 suggestive of degenerative disc disease, degenerative joint disease and degenerative facet disease; however, at no time during the period covered by this appeal has the Veteran's service-connected lumbar spine disability been manifested by limitation of motion to less than 60 degrees, to include due to functional impairment on use or during flare-ups; and, intervertebral disc syndrome has never resulted in incapacitating episodes requiring physician-prescribed bed rest. 6. The Veteran reports burning and tingling in his left foot and has been diagnosed as having peroneal atrophy affecting the left lower extremity as a manifestation of the service-connected foot/ankle disability. CONCLUSIONS OF LAW 1. The criteria for the assignment of a disability evaluation in excess of 10 percent for the service-connected status post extensor tendon contracture on the left are not met for any period of time covered by this claim that is prior to January 14, 2009. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.71a, Diagnostic Codes 5283 (2012). 2. The criteria for the assignment of a disability evaluation of 20 percent, but no higher, for the service-connected status post extensor tendon contracture on the left are met as of January 14, 2009. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.71a, Diagnostic Codes 5283 (2012). 3. The criteria for the assignment of a disability evaluation in excess of 10 percent for the service-connected left foot disability with degenerative joint disease have not been met at any time during the period covered by this claim that is prior to January 14, 2009. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.71a, Diagnostic Codes 5003, 5284 (2012). 4. The criteria for the assignment of a 20 percent rating, but no higher, for the service-connected left foot disability with degenerative joint disease are met as of January 14, 2009. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.71a, Diagnostic Codes 5003, 5284 (2012). 5. The criteria for a disability evaluation in excess of 10 percent for the service-connected lumbar spine disability are not met for any period of time covered by this claim that is prior to January 14, 2009. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.71a, Diagnostic Codes 5237 (2012). 6. The criteria for an evaluation of 20 percent for the service-connected lumbar spine disability are met as of January 14, 2009; the criteria for an evaluation in excess of 20 percent for the service-connected lumbar spine disability are not met for any period of time covered by this appeal on or after January 14, 2009. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.71a, Diagnostic Codes 5237, 5242, 5243 (2012). 7. The criteria for the assignment of a separate disability rating for peroneal atrophy affecting the left lower extremity have been met. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012). 8. The criteria for the assignment of a separate disability rating for scars associated with the post-surgical service-connected left foot disability have been met. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Here, the Veteran filed his claim for higher disability ratings for the service-connected left ankle and back disabilities; and, for service connection for degenerative joint disease of the left foot in August 2004. That same month, the RO issued a duty-to-assist letter to the Veteran that provided the Veteran with notice of how to substantiate a claim of service connection and for an increased rating. Notably, service connection was granted for degenerative joint disease of the left foot, and the Veteran is challenging the initial rating assigned. In cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case, with respect to his issue, has been satisfied. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). With regard to the claims for increase, the letter explained that the Veteran needed to show that his service-connected disabilities had worsened in severity. The letter also listed examples of the types of evidence that may show this, such as doctor's statements showing physical and clinical findings, laboratory test results and lay statements from individuals who are able to describe personal observations of how the disability has worsened. The Veteran was notified of what evidence VA would obtain on behalf of the Veteran and what evidence the Veteran should provide. The letter did not specifically notify the Veteran about the assignment of disability ratings and effective dates for all grants of service connection; however, that defect was subsequently cured by sending the Veteran another letter in March 2006 which included notice regarding the assignment of effective dates and disability ratings for service-connected disabilities. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The case was remanded in November 2010 for additional development of the record with respect to the issues on appeal. In connection with these claims, the agency of original jurisdiction was to obtain additional VA treatment records, contact the Veteran for him to provide or identify any additional private treatment records, and conduct a VA examination. On remand, the RO obtained additional VA treatment records relevant to the claims, requested that the Veteran submit or identify any additional relevant records by way of a January 2011 letter and conducted VA examinations. The examinations are adequate as they were based on a review of the history, physical examination and as sufficient information was provided to allow the Board to render an informed determination. As a result, there was substantial compliance with the Board's remand orders and the Veteran has not asserted otherwise. In sum, VA has obtained service treatment records, assisted the Veteran in obtaining evidence, afforded the Veteran physical examinations, and afforded the Veteran the opportunity to give testimony before the Board. The medical examination reports of October 2004 are also adequate as they are based on a review of the history, a physical examination, and as information that was provided is sufficient to allow the Board to render an informed determination. While the examiner noted the claims file had not been provided, the Board does not find that such makes the examinations inadequate, as the purpose of the examination was to report the clinical findings pertaining to the service-connected disabilities, which was accomplished by the examiner. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. As discussed above, the Veteran's claim was previously before the Board in November 2010 and remanded for additional evidentiary development, to include obtaining outstanding service records, VA treatment records and affording the Veteran a VA examination. The requested development was completed as directed, including obtaining up to date VA outpatient treatment records and National Guard pay records which have been added to the Veteran's claims file. D'Aries, 22 Vet. App. at 105; Dyment, 13 Vet. App. at 146-47. In light of the above, VA has complied with the duty-to-assist requirements found at 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c)-(e). II. Increased Rating The Veteran contends that he is entitled to higher disability evaluations for his service-connected left foot degenerative joint disease, status post extensor tendon contracture on the left and the low back strain. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred in or aggravated by military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2012). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2012). It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2012). In a claim for a higher disability rating after an initial award of service connection, all of the evidence submitted in support of the Veteran's claim is to be considered. In initial ratings cases, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Additionally, in all increased rating cases, it is appropriate to consider whether separate ratings should be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has considered staged ratings in this case, and, as will be further discussed below, the evidence shows that the Veteran's ankle and foot disabilities, and lumbar spine disability warrant separate ratings based on distinct facts showing different ratings are warranted for distinct periods of time. While the RO also found that the Veteran's service-connected lumbar spine, and foot and ankle disabilities warranted staged ratings, the Board disagrees with the timing of the staged ratings, as discussed in detail below. When assigning a disability rating, it is necessary to consider functional loss due to flare-ups, fatigability, incoordination, and pain on movements. See DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). The rating for an orthopedic disorder should reflect functional limitation due to pain which is supported by adequate pathology and evidenced by the visible behavior of the Veteran undertaking the motion. Weakness is also as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity, or the like. See 38 C.F.R. § 4.40 (2011). The factors of disability reside in reductions of their normal excursion of movements in different planes. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight bearing are related considerations. See 38 C.F.R. § 4.45 (2012). It is the intention of the rating schedule to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59 (2012). The Veteran filed his initial claim of service connection in December 1992, just 4 months following discharge from service. In September 1993, the RO issued a rating decision granting service connection for: (1) status post extensor tendon contracture and extensor hallucis longus tendon Z-plasty lengthening times two; status post fusion of intrerphalangeal joint, left hallus; status post tibial sesamoid planning and screw removal; and (2) low back strain. The RO assigned a 10 percent rating for the left foot/ankle disability pursuant to 38 C.F.R. § 4.71, Diagnostic Code 5299-5283; and, assigned a 10 percent disability rating for the low back strain pursuant to 38 C.F.R. § 4.71, Diagnostic Code 5295. In August 2004, the Veteran requested an increased rating for the service-connected foot/ankle disability, as well as an increased rating for the low back strain. In a December 2004 rating decision, the RO confirmed and continued the 10 percent ratings previously assigned for the service-connected foot/ankle and low back strain disabilities; however, the RO granted service connection and assigned a separate 10 percent disability rating, effective from August 5, 2004, for degenerative joint disease of the left foot pursuant to 38 C.F.R. § 4.71, Diagnostic Code 5010-5284. The 10 percent ratings for the service-connected left foot/ankle disability and low back strain were increased to 20 percent, effective from February 7, 2011. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis, and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Thus, all possible diagnostic codes will be considered to determine the most appropriate code(s) to rate the Veteran's service-connected disabilities. Disabilities of the foot are rated under Diagnostic Codes 5276 to 5284. 38 C.F.R. § 4.71a. The Veteran's left foot/ankle disability has been rated as 10 percent prior to February 7, 2011 under Diagnostic Code 5283for malunion or non-union of tarsal or metatarsal bones. Under this Diagnostic Code, moderate malunion or non-union is rated at 10 percent, moderately severe is rated at 20 percent, and severe is rated as 30 percent disabling. Foot injuries can also be rated pursuant to Diagnostic Code 5284. A moderate foot injury warrants a 10 percent rating, moderately severe warrants a 20 percent rating, and severe warrants a 30 percent rating. Actual loss of use of the foot is rated at 40 percent. The applicable regulations contain a number of other schedular provisions relating to the toes and feet. Among those generally applicable to the feet, Diagnostic Codes (DC) 5277 (pertaining to weak foot), 5279 (pertaining to metatarsalgia), 5280 (pertaining to unilateral hallux valgus), 5281 (pertaining to hallux rigidus) and 5282 (pertaining to hammer toes) do not provide a basis for a higher rating in this case because the maximum evaluation afforded by each of them is 10 percent. Moreover, these codes are inapplicable as these disabilities are not shown in the Veteran's case. In addition, DC 5278 is not applicable because the evidence does not reflect acquired claw foot. DC 5276 is not applicable because the evidence does not reflect acquired flat foot. 38 C.F.R. § 4.71a, Diagnostic Codes 5276-5282. In considering the applicability of diagnostic codes applicable to the ankle, 5270, 5272, 5273, 5274 are not applicable in this case because the evidence clearly does not show that the Veteran has any of the following associated conditions, respectively: ankylosis of the ankle; ankylosis of the subastragalar or tarsal joint; malunion of the os calcis or astragalus; and astragalectomy. 38 C.F.R. § 4.71a, Diagnostic Codes 5270, 5272-74. For VA purposes, normal range of motion of the ankle includes dorsiflexion to 20 degrees and plantar flexion to 45 degrees. 38 C.F.R. § 4.71a , Plate II. Diagnostic Code 5271 provides for a 10 percent rating where there is moderate limitation of motion of the ankle, and for a maximum 20 percent evaluation for marked limitation of motion of the ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5271. Traumatic arthritis is rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. The Veteran has been awarded a separate 10 percent rating for degenerative joint disease of the left foot. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint involved. When limitation of motion of the specific joint involved is noncompensable under the appropriate diagnostic code, a 10 percent rating will be assigned for each major joint or group of minor joints affected by limitation of motion. A 20 percent evaluation is authorized if there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Disabilities of the spine, including the Veteran's low back strain, are rated based on the General Rating Formula for Diseases and Injuries of the Spine. The Veteran's low back strain was initially rated pursuant to Diagnostic Code 5295; however, before the Veteran filed his August 2004 claim for increase, the criteria for rating disabilities of the spine were amended. As such, the Veteran's low back strain is now rated pursuant to Diagnostic Code 5237 which covers lumbosacral strain. Under the General Rating Formula for Diseases and Injuries of the Spine, (For diagnostic codes 5235 to 5243 unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes), with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease: A 10 percent evaluation is provided for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent of more of the height. A 20 percent evaluation is provided for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, a combined range of motion of the thoracolumbar spine 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 assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is assigned where there is evidence of unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. In addition, several notes outline additional guidance for applying the rating formula. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also, Plate V) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. 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. The 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. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): 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 stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): 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. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Under Diagnostic Code 5243, intervertebral disc syndrome (IVDS) is evaluated either on the total duration of incapacitating episodes over the past 12 months or by using the General Formula, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. An evaluation of 60 percent, the maximum schedular rating, requires IVDS with incapacitating episodes having a total duration of at least six weeks during the past 12 months. An evaluation of 40 percent requires IVDS with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 20 percent evaluation requires IVDS with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 10 percent evaluation requires IVDS with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. In addition, several explanatory notes outline additional guidance for applying the IVDS regulations: Note (1): For purposes of evaluations under diagnostic code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2): If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. Plate V provides a pictorial of the normal range of motion for the thoracolumbar spine. See 38 C.F.R. § 4.71a, Plate V (2012). VA examinations of the left leg, foot and spine were conducted in October 2004. These examination reports reveal that the Veteran fractured his left tibia/fibula during service. As a result of his service-connected left tibia/fibula fracture, the Veteran's left leg is shorter than his right and he had multiple tender and painful scars. The Veteran wore shoe inserts daily to correct the leg length discrepancy, and they helped with the pain somewhat. Nonetheless, the Veteran reported that he has had back spasms ever since the tibia/fibula fracture and has undergone six surgeries on his left leg/foot. The Veteran reported pain in the left leg, left foot, and back all the time, with a pain level of 6. The Veteran reported occasional swelling in the left leg and occasional numbness in the left leg and foot. Standing aggravated the pain, but the Veteran denied flare-ups of pain. There was no evidence of malunion, nonunion, or any loose motion. The Veteran had some mild tenderness on palpation of surgical scars. The Veteran was status post placement of a screw in the first toe of the left foot to help stabilize the fracture of his tibia and fibula. There was no sign of drainage, edema, painful motion, weakness, redness or heat. The Veteran ambulated with a normal steady gate. There was no limping noted. The Veteran had a callus to the medial aspect of his left foot, and he had a positive unusual shoe wear pattern of his right shoe and heel. There was no evidence of ankylosis of any joint. There was no impairment of joint functioning of the knee joint or ankle joint as a result of the tibia/fibular fracture. The Veteran had full range of motion of the left ankle joint, with dorsiflexion from 0-20 degrees and plantar flexion from 0-45 degrees. With respect to the foot, the Veteran reported pain, swelling, fatigability and lack of endurance but no flare-ups. The Veteran had limited motion of the first toe because it was fused. There was no associated pain with the motion and there was no impaired range of motion of the other toes on his left foot. In addition, there was no additional limitation of range of motion of the left foot or ankle as a result of pain, fatigue, weakness or lack of endurance following repetitive use, and the Veteran did not have flare-ups. There was no objective evidence of painful motion, edema, instability, weakness or tenderness; and, there were no signs of functional limitations on standing or walking during the visit. The Veteran had no difficulty standing, squatting, pronating, or rising on the toes or heels. The Veteran did have some difficulty with supination of the left foot only. The Veteran's left leg measured a half centimeter shorter than the right. There were no constitutional signs of bone disease, anemia, weight loss, fever or debility. There were no signs of hammertoes, high arch, flat foot, claw foot, hallux valgus, or other foot deformity. The Veteran had no skin or vascular changes. The Veteran denied the use of a cane, brace or crutches. He reportedly worked as a cook, and had to take frequent breaks to sit down. He also had to leave work early on occasion (two to three times per week) because of back, leg and foot pain. The Veteran did not have any difficult with activities of daily living at home, although sometimes he had difficulty driving because of back spasms. X-rays of the left foot revealed degenerative changes of the foot and post-surgical changes with fusion of the first proximal interphalangeal joint. Also, there were subchondral cystic changes on the tip of the distal phalanx of the big toe. There were mild degenerative changes of the distal interphalangeal joint of the toes. Based on x-rays and clinical evaluation, the diagnosis was status post service-connected tibia/fibula fracture, well healed with chronic pain related to the service-connected tibia/fibula fracture; status post fusion proximal joint first toe left foot; degenerative changes of the left foot with impairment of function. On examination of the spine, the Veteran reported a pain in the lumbar area at a level of 6. The Veteran reported flare-ups with back spasms and sometimes numbness of the low back. The Veteran described the pain as being stabbed by needles, and when the pain comes, he cannot sit down. The Veteran's back pain has occasionally led him to leave work to go home and lay down until the pain subsides. The Veteran ambulated without assistive devices such as a back brace. The Veteran can walk 1/4 of a mile before experiencing back pain, and can drive up to one hour before back pain interferes with his driving. The spine had a normal curvature and the Veteran's gait was normal with an upright posture. Active and passive forward flexion was from 0-90 degrees, extension was from 0-30 degrees, left and right lateral flexion was 0-30 degrees, left and right lateral rotation was 0-30 degrees. There were no changes in the ranges of motion with repetitive movements. There was no pain with movement of the spine. The Veteran's range of motion was not additionally limited by pain, fatigue, weakness or lack of endurance following repetitive use or during flare-ups. There was no objective evidence of painful motion, spasm, weakness, or tenderness elicited by the examiner. There were no postural abnormalities or fixed deformities. Sensory and motor examinations were normal with no signs of atrophy or decreased muscle tone or decreased strength. All reflexes except for the left Achilles were normal. The left Achilles reflex was absent. Lasegue's sign is negative bilaterally and there was no intervertebral disc syndrome. Degenerative changes of the lumbar spine were noted on x-ray. The diagnosis was degenerative joint disease of the lumbar spine; service-connected low back strain; and, leg length discrepancy status post left tibia/fibula fracture. The findings from the October 2004 VA examinations reveal that during that time period, the Veteran had full range of motion of his ankle and all toes except the big toe on the left due to a fusion. The Veteran's main symptom was pain in the foot and ankle, and pain in his low back. These complaints of pain are supported by x-ray findings of arthritis of the foot and arthritis of the lumbar spine. Based on the arthritis of the left foot, with pain, but without any limited motion other than the big toe, the 10 percent disability rating currently assigned for the service-connected left foot degenerative joint disease of the foot is appropriate under Diagnostic Codes 5010 and 5284. The Veteran has not described additional limitations which result in additional disability. Standing and walking resulted in longer lasting pain, there was difficulty with supination and there was fatigability and a lack of endurance, which support the assigned 10 percent evaluation. However, there was no additional impairment on use and the Veteran denied additional functional impairment on flare-ups such that the criteria for a higher, 20 percent rating, are not met for the degenerative arthritis of the left foot based on findings from the October 2004 series of examinations. Moreover, there is no diagnostic code that offers a compensable rating for limited motion of individual toes of the foot or for ankylosis of one or more toes of the foot. Regarding the service-connected ankle/foot disability (other than the degenerative joint disease of the left foot), the RO assigned a 10 percent rating on the basis of malunion or nonunion of the tarsal or metatarsal bones pursuant to Diagnostic Code 5283. Although the examination in October 2004 specifically indicated that there was no malunion or nonunion, the Veteran nevertheless had a fracture with a resulting leg length discrepancy which causes pain, discomfort, fatigability and lack of endurance. Thus, the tarsal pain associated with old fracture and the resulting leg length discrepancy has been rated by analogy to malunion or nonunion of the tarsal or metatarsal bones. Incidentally, the rating criteria specifically include a rating based on shortening of the bones of the lower extremity. See 38 C.F.R. § 4.71a, Diagnostic Code 5275. However, to warrant a compensable rating under that code, the leg length discrepancy must be at least 1and 1/4 inches (3.2 cm.). In this case the leg length discrepancy is only 1/2 a centimeter; and, moreover, it states not to combine such a rating with other ratings for fracture or faulty union in the same extremity. Accordingly, a separate rating is not warranted. Other than Diagnostic Codes 5283 and 5284, pursuant to which the disabilities are rated, the only other potentially applicable diagnostic code is 5271 (limitation of motion of the ankle). As noted above, at the time of the October 2004 examination, there was no limited motion of the ankle; thus, a compensable rating under Diagnostic Code 5271 does not provide the Veteran with a rating in excess of the currently assigned 10 percent under Diagnostic Code 5283. In considering the applicability of Diagnostic Code 5284, the General Counsel for VA, in a precedent opinion dated August 14, 1998, (VAOPGCPREC 9-98) held that if a disability rating was established under DC 5284, the availability of a separate rating under DC 5003/5010 and the applicability of sections 4.40, 4.45, and 4.59 depended upon the manifestations compensated under DC 5284. Diagnostic Code 5284 does not specifically contemplate limitation of motion. However, depending on the nature of the foot injury, Diagnostic Code 5284 (foot injuries) may involve limitation of motion and would require consideration of 38 C.F.R. §§ 4.40, 4.45. See VA General Counsel's opinion VAOPGCPREC 9-98. In the present scenario, the Veteran also has a separate disability rating that stems from an initial fracture to the tibia and fibula, which is rated as noncompensable under Diagnostic Code 5299-5262. Although the evidence demonstrates that the initial tibia/fibula fracture healed, the initial injury caused a leg length discrepancy with tarsal manifestations, and the Veteran has subsequently undergone multiple left foot and toe surgeries. Because the Veteran reports pain in the ankle area, as well as the foot, and because there is fusion of the big toe, as well as objective evidence of arthritis, a separate disability rating pursuant to Diagnostic Code 5283 compensates for the ankle portion of the disability. The manifestations with respect to the foot, including arthritis are most appropriately rated pursuant to Diagnostic Code 5284. This ensures that the assigned ratings compensate for both the foot and tarsal manifestations of the Veteran's disability and that the same manifestations are not considered under multiple ratings. Because the consideration of pain to include on use of the feet is part of the criteria under the diagnostic codes pertaining to arthritis as well as the diagnostic code pertaining to other foot injuries, it would be pyramiding (compensating the Veteran twice for the same pain) to assign a separate rating for the foot arthritis if the Veteran were also compensated under Diagnostic Code 5284. Importantly, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. Based on this analysis, as there is no malunion or nonunion of the tibia and fibula, the tarsal manifestations are most appropriately rated under or analogous to Diagnostic Code 5283. At the time of the October 2004 VA examination, the Veteran had no limitation of motion of the left ankle; thus, a compensable rating under Diagnostic Code 5271 is not warranted. Similarly, as there is no ankylosis, malunion of the os calcis or astragalus, and no astragalectomy, ratings under Diagnostic Codes 5270, 5272, 5273 and 5274 do not apply. A rating in excess of 10 percent is not warranted, however, because the ankle disability is not shown to be more than moderate in degree. The Veteran is able to walk and stand without the use of assistive devices such as a cane or ankle brace. He does not limp. He had no limited motion of the ankle at the time of the October 2004 examination but did report symptoms of pain and swelling. The Veteran does not assert, nor does the evidence show that the ankle is unstable, or that it locks. In short, the October 2004 examination does not reveal any symptomatology of the overall disability picture other than pain, subjective reports of occasional swelling, and a leg length discrepancy with regard to the left leg. Based on these findings, the overall disability picture that results from the leg disability is no more than moderate in degree, when rated by analogy under Diagnostic Code 5283. Similarly, with regard to the Veteran's degenerative joint disease of the lumbar spine, the October 2004 examination report indicates no limitation of motion of the lumbar spine, no pain on motion, and no additional limitations after repetitive use. Although the Veteran reported back spasms on occasion, none were objectively demonstrated on examination in October 2004 and spinal curvatures were normal. Nonetheless, the Veteran's credible, competent and probative reports of back spasm, along with tenderness, reports of flare-ups of pain such that he cannot sit down and objective evidence of arthritis provides a basis to confirm and continue the currently assigned 10 percent rating for the service-connected low back strain at the time of the October 2004 examination. Even assuming that the Veteran does experience back muscle spasms from time to time, there is no indication that they are severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis, such that a higher, 20 percent rating could be assigned under the General Formula for rating disabilities of the spine based on the October 2004 findings. Given the evidence of record, the preponderance of the evidence is against an initial evaluation in excess of 10 percent based on findings from the October 2004 VA examination. As noted above, a 20 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, a combined range of motion of the thoracolumbar spine of 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. See 38 C.F.R. § 4.71a. The Veteran had normal range of motion on examination, however, his reports of functional impairment in the form of interference with sitting down when he has flare-ups, and his reports of muscle spasms warrant the assignment of a 10 percent evaluation, but no higher. The Veteran has never argued that the examination of October 2004 was inaccurate, and the symptoms reported by the Veteran do not cause additional functional impairment that is not accounted for by the assignment of the 10 percent rating assigned pursuant to the October 2004 examination findings. The examination results are therefore adequate. The examiner conducted a physical examination and provided sufficient information to allow the Board to render an informed determination as to the initial disability rating for the service-connected lumbar spine disability. The Veteran is also not entitled to an evaluation of 40 percent, 50 percent, or 100 percent based on the examination findings in October 2004. As noted above, a 40 percent evaluation is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is assigned where there is evidence of unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. There is no evidence of record showing ankylosis of any kind. Although the Veteran's big toe fusion may be considered ankylosis by analogy given that it is fused together by a surgical procedure, as noted previously, there is no rating code which provides ratings for ankylosis of individual digits of the foot. With respect to the lumbar spine, the Veteran has range of motion, therefore, ankylosis is not shown. Moreover, limitation of motion to 30 degrees or less has not been shown. In this regard, the Veteran's credible reports of functional impairment on sitting when he has flare-ups has been fully considered with respect to the 10 percent evaluation assigned above. No additional functional impairment, to include on use or flare-ups, is shown in this case. The Board has also considered whether the criteria set forth in Diagnostic Code 5243 for intervertebral disc syndrome are applicable in this case. The October 2004 examination specifically indicates that the Veteran does not have intervertebral disc syndrome or incapacitating episodes. Therefore, based on the findings from the October 2004 examination, a disability rating pursuant to Diagnostic Code 5243 is not applicable in this case with regard to the Veteran's lumbar spine disability. Although the Veteran appealed the December 2004 rating decision which denied increased ratings for the service-connected lumbar spine disability and the foot/ankle disability, the Veteran did not specifically indicate on his NOD or substantive appeal his specific reasons for his appeal. In other words, he did not indicate why he disagreed with the ratings assigned, and he did not assert any inaccuracies in the October 2004 VA examination. In sum, the evidence obtained from the October 2004 examination report does not support a rating in excess of the currently assigned 10 percent evaluation for the service-connected low back strain, left foot arthritis, and/or left foot/ankle disability. DeLuca, 8 Vet. App. at 206-7. As the remaining record reveals that the Veteran's lumbar spine disability and left foot/ankle disability ultimately worsened, the remaining questions are: (1) at what point did those service-connected disabilities worsen; and, (2) to what degree did they worsen? VA records dated from the time of the October 2004 examination up to the time of the April 2007 personal hearing before a Decision Review Officer at the RO do not provide any basis upon which to assign higher ratings for the service-connected left foot disability with degenerative joint disease, low back strain, or the left ankle disability. Other than sporadic routine podiatry consultation reports which show a callous on the left foot, complaints of pain and a diagnosis of diabetic neuropathy, the outpatient treatment records do not show treatment for the Veteran's left foot and ankle disabilities, or the lumbar spine disability. At a personal hearing before a Decision Review Officer (DRO) at the RO in April 2007, the Veteran testified as to the severity of his disabilities and the functional impairment caused by them. The Veteran testified that he has balance problems because his left big toe does not move. When he walked he had a lot of soreness because his toe did not move. Pain in the foot and ankle limited his ability to stand and walk. The Veteran used a rolling walker due to his left foot. He also indicated that he has a wheelchair which he used at the grocery store. The Veteran testified that he had difficulty walking up and down stairs. He also noted that he had a private family doctor who prescribed Tylenol III and Tramadol for pain. X-rays taken in January 2008 were reviewed. With regard to the left foot, the x-rays revealed a deformity in the great toe from a previous injury and previous surgery. There was fusion of the interphalangeal joint with surrounding bony spur formation. There were small bony spurs with some sclerotic changes noted in the tuft of the great toe. A defect in the tip of the tuft was probably from previous pinning. There was early narrowing of the first metatarsophalangeal joint suggestive of degenerative or posttraumatic osteoarthritis. The remaining bony structures and joint spaces were grossly intact. The spine x-ray from January 2008 revealed no acute vertebral compression. Early disc space narrowing was observed at L3-L5 with sclerosis of the endplates. There were vertebral spurs noted at all levels. Early narrowing of the facet joints was noted in the lower lumbar spine. Sacroiliac joints were normal bilaterally. Early calcifications were noted in the wall of the abdominal aorta. The impression was degenerative changes as described. A November 2008 MRI of the spine indicated that there was no significant disc bulge or herniation, neuroforaminal or spinal stenosis observed at any lumbar level. A November 2008 podiatry note reveals an assessment of dropped foot (peroneal atrophy of the left foot), in addition to tinea pedis, dry skin, and diabetic neuropathy. Significantly, however, while the Veteran's appeal was pending, the Veteran submitted a statement that was received at the RO on January 14, 2009 in which he reported that his left leg, left foot and lower back conditions were worse, and requested VA examinations to support this assertion. Critically, the evidence of record dated since the Veteran reported that his conditions had worsened, support these assertions. Outpatient treatment records from June 2009 show treatment for pain in the left foot and low back. The Veteran reported that the low back pain radiated into the left hip down the left leg and into the foot. The Veteran had tingling in his toes, and described his back pain as stabbing in nature. The Veteran reported some urinary incontinence and some bowel incontinence, although neither the Veteran nor the examiner suggested that the incontinence was related to the back condition. The examiner referred to the results of the November 2008 MRI of the lumbar spine as noted above. The examiner indicated that the Veteran ambulated with a steady gait and pace without assistive device. Deep tendon reflexes were 1+ on the left and not elicited on the right. Lumbar range of motion was within full limits. The impression was "chronic low back pain: DDD." Outpatient records from the VA's Pain Management Clinic from December 2009 and February 2010 show continued treatment for low back pain with prescription medication. At a Board hearing in August 2010, the Veteran reiterated the problems associated with his left foot and back. He testified that he had trouble walking far distances, trouble walking up and down stairs, and began using a walker because of pain in his foot and back. The Veteran reportedly began to soak his foot at least two or three times per week to keep the pain down. He described his foot pain as an ache, which occurs all the time. The Veteran reported that he was taking muscle relaxers, hydrocodone, and arthritis pills, yet he still had pain. He had a special foot brace, and began wearing a back brace as well. The Veteran testified that he worked full-time as a cook assistant, and although he had to take breaks to sit down often, he only had to leave work early on occasion due to back and foot pain. A VA examination conducted on February 7, 2011 provides additional evidence supporting the Veteran's assertions that his low back pain and left foot and ankle pain had worsened. The examiner reviewed the claims file. With regard to his low back, the February 2011 examination reveals that the treatment for his low back pain had progressed to flexeril, hydrocodone, a TENS unit, and a back brace. The Veteran had no urinary or bowel incontinence related to the low back disability. The Veteran reported weakness and stiffness of constant moderate back pain daily. The Veteran was able to walk up to 1/4 mile; he used a brace and a wheelchair. Posture and head position were normal. There was symmetry in appearance of the spine. There were no abnormal spine curvatures and no ankylosis of the spine. Although the Veteran reported muscle spasms, none were elicited on examination. Additionally, there was no atrophy and no guarding. With regard to range of motion of the thoracolumbar spine, flexion was limited to 60 degrees with pain on motion; extension was limited to 20 degrees with pain on motion; left and right lateral flexion was from 0-25 degrees; left and right lateral rotation was also from 0-25 degrees. There was evidence of pain on active range of motion. Although the examiner noted that there was objective evidence of pain on repetitive use, there was no additional limitation after three repetitions of range of motion. Reflex examination findings of the lower extremities were normal bilaterally. Sensory examination findings of the lower extremities were normal bilaterally. With regard to motor function, however, the ankle dorsiflexion on the left was 0; ankle plantar flexion on the left was 3/5 and great toe extension was 0. The examiner specifically indicated that the Veteran's motor dysfunction of the left ankle was due to peroneal atrophy of the left foot, and was not related to a spinal disability. X-rays from February 2011 reveal degenerative changes from L3-L5; and, no significant interval progression. The examination report indicates that the Veteran was employed as a cook, part time, with no time lost from work during the previous 12 month period. The diagnosis of degenerative joint disease and degenerative disc disease of the lumbar spine was continued, and the examiner opined that it was the natural progression of the original service-connected lumbar strain. With regard to occupational functioning, the Veteran had trouble lifting and carrying due to pain. With regard to activities of daily living (ADLs), the Veteran's spinal problems impacted chores, exercise, shopping, sports, recreation, traveling and driving. With regard to the service-connected extensor tendon contracture of the left foot with degenerative joint disease of the left foot (foot and ankle disabilities), the Veteran reported throbbing pain to the medial aspect of the left lower leg and ankle. He reported progressive symptoms with severity of pain walking and standing. He also reported swelling of his left lower leg and ankle. He continued to take Hydrocodone for pain. Symptoms of the left ankle joint included pain, stiffness and weakness. There was no deformity, giving way or instability of the left ankle. There was no incoordination, no locking, dislocation, subluxation or effusions. There were no constitutional symptoms of arthritis of the left ankle joint. The Veteran's walking was limited to 1/4 mile. The examiner noted an antalgic gait abnormality and abnormal shoe wear pattern on the left related to the foot and ankle condition. The examiner noted tenderness at the left ankle joint. He confirmed the tendon abnormality of extensor tendon contracture. The examiner noted objective evidence of pain with motion on the left side. Left dorsiflexion was 0. Left plantar flexion was to 30 degrees. Although there was objective evidence of pain following repetitive motion, there was no additional limitation after three repetitions of range of motion. X-ray studies from February 2011 reveal old healed fractures in the distal shafts of the tibia and fibula remain stable. Ankle mortise was intact. There was no acute bony injury. The diagnosis was degenerative joint disease of the left ankle, status post extensor tendon contracture left foot. This had significant effects on the Veteran's occupation as a cook due to pain. In addition, it had severe effects on some of his activities of daily living such as chores, shopping, exercise, sports and recreation. It had moderate effects on traveling and driving. With regard to the foot, the Veteran reported tingling and burning in his left foot, with a pain level of 8-9. The Veteran reported swelling with walking and standing; weakness, and lack of endurance, both while walking and standing. The symptoms are located on the top and the bottom of the foot. The examiner noted a diagnosis of peroneal atrophy of the left foot with foot drop. The Veteran reported flare-ups of degenerative joint disease of the foot weekly or more often, usually lasting less than one day. Overexertion caused the flares, which the Veteran estimated worsen limitation of motion by 60 percent during the flares. The Veteran used orthotic inserts and a brace; however, they provided only fair relief, as did his prescription medications. As noted with the left ankle examination, there was objective evidence of painful motion, particularly given the decreased motion of the great toe and objective evidence of tenderness, particularly on the bottom of the foot. Finally, objective evidence of abnormal weight bearing came from the Veteran's abnormal shoe wear pattern. As with prior x-rays of the left foot, the February 2011 x-rays of the left foot revealed status post fusion of the DIP of the great toe and posttraumatic deformity of the distal phalanx of the great toe. The examiner opined that the Veteran's peroneal atrophy of the left foot was at least as likely as not caused by or a result of the service-connected degenerative joint disease of the left foot; status post extensor tendon contracture of the left foot. In sum, the February 2011 VA examination confirms that the Veteran's overall disability has worsened. His forward flexion of the thoracolumbar spine, which was normal during the October 2004 examination was shown to be limited to 60 degrees on the February 2011 examination. Furthermore, the Veteran's left ankle dorsiflexion, which was also not limited at the October 2004 examination, was shown to be completely limited in February 2011 - with no dorsiflexion possible. In light of the limited flexion to 60 degrees, the RO increased the disability rating for the service-connected lumbar spine disability to 20 percent, effective from February 7, 2011, the first day on which the objective evidence shows that an increase is warranted. Although the Board agrees that the Veteran is entitled to a 20 percent rating for the service-connected lumbar spine disability based on flexion limited to 60 degrees, the fact that the Veteran reported a worsening of his symptoms as early as January 2009 must be taken into consideration when assigning a staged rating. In this case, the Veteran specifically reported to the RO that his back symptoms had worsened in a statement dated January 14, 2009. During the August 2010 hearing, he testified that he had trouble going up and down stairs and that he had pain in his back and left foot. Outpatient treatment records show that the Veteran's pain had become severe enough that he began seeking treatment from VA's pain management clinic. Although the Veteran's assertions were not objectively demonstrated on examination until February 7, 2011, that examination served to confirm what the Veteran had been consistently reporting since January 14, 2009, that his disability had worsened. Given the competency and credibility of the Veteran's statements regarding his increased level of pain, and the objective supporting evidence that follows showing additional functional impairment as a result thereof, it is appropriate to assign the higher, 20 percent disability rating prior to the date of the February 7, 2011 examination. The Veteran reported that his symptoms had worsened in January 2009 and he requested a VA examination in that regard; yet, it took until February 2011 to examine the severity of the Veteran's service-connected disabilities. It is no fault of the Veteran that he had to wait two years for VA to confirm what the Veteran had been consistently reporting since January 2009. As such, the date on which the increased rating to 20 percent for the service-connected lumbar spine disability should be effective is January 14, 2009. During the pendency of the period covered by this claim prior to January 14, 2009, there was no indication that the Veteran's service-connected lumbar spine disability warranted a rating in excess of 10 percent for the reasons stated above. Similarly, there is no basis on which to assign a disability rating in excess of 20 percent at any time during the period covered by this claim for the service-connected lumbar spine disability. The Veteran's lumbar spine flexion has never been limited to 30 degrees or less, and ankylosis of the spine has never been demonstrated. According to the findings on the February 2011 examination report, the Veteran had an abnormal shoe wear pattern, he had a diagnosis of degenerative disc disease (DDD) per x-ray finding, and he reported flare-ups. With regard to the DDD, there is no evidence of record showing that bed rest was prescribed and that there was treatment by a physician for at least four weeks during any one year period covered by this claim. As such, the criteria for the assignment of a rating in excess of 20 percent pursuant to the regulations governing DDD are not met in this case. Even with consideration of whether there is additional pain on movement, additional limitation with repetitive use, weakness, fatigability and incoordination, the criteria for the next higher rating are not met. The Veteran did not report flare-ups on examination in 2011. He reported stiffness worse with sitting, standing and bending and worsening back pain. The Veteran never alleged that his flexion was limited to 30 degrees or less nor was such shown on examination to include on repetitive use. Therefore, the evidence of record more nearly approximates the criteria for the assignment of a 20 percent rating, and for the reasons stated above, therefore supports the assignment of the 20 percent rating for the period of time covered by the appeal as of January 14, 2009, but not earlier, as an increase in disability is not shown prior to January 14, 2009. See DeLuca, 8 Vet. App. at 206-7. Similarly, with regard to the Veteran's foot and ankle disabilities, the Veteran specifically reported to the RO that his foot/ankle symptoms had worsened in a statement dated January 14, 2009. The Board finds his statement competent, credible and probative and such was confirmed by the February 2011 VA examination. Accordingly, the evidence of record beginning on January 14, 2009 indicates that a 20 percent rating is warranted for the Veteran's left foot degenerative joint disease pursuant to the criteria under Diagnostic Code 5284 for moderately severe foot disabilities. However, the evidence does not show that there was an increase in disability prior to January 14, 2009. As with his back symptoms, his left foot symptoms were not objectively demonstrated on examination until February 7, 2011; however, that examination served to confirm what the Veteran had been consistently reporting since January 14, 2009, that his foot disability had worsened. Given the competency and credibility of the Veteran's statements regarding the increase in disability with his reported additional symptoms on examination of weakness and lack of endurance of the foot on use with weekly flare-ups that resulted in 60 percent additional limitation of motion, it is appropriate to assign the higher disability rating prior to the date of the February 7, 2011 examination. The Veteran reported that his symptoms had worsened in January 2009 and he requested a VA examination in that regard; yet, it took until February 2011 to examine the severity of the Veteran's service-connected disabilities. It is no fault of the Veteran that he had to wait two years for VA to confirm what he reported beginning in January 2009. As such, the date on which the increased rating for the service-connected left foot arthritis should take effect is January 14, 2009. During the pendency of the period covered by this claim prior to January 14, 2009, there was no indication that the Veteran's service-connected left foot arthritis warranted a rating in excess of 10 percent for the reasons stated above. With regard to tarsal manifestations pursuant to Diagnostic Code 5283, the Board finds that the criteria for a 20 percent evaluation are met from January 14, 2009, when the Veteran reported the condition was worse. His report was confirmed by the VA examination of February 2011 which found that he had no dorsiflexion and plantar flexion that was limited to 30 degrees. Pursuant to Diagnostic Code 5271, this would more nearly approximate marked limitation of motion and also warrant a 20 percent evaluation pursuant to that code. However, the Veteran is currently evaluated analogous to Diagnostic Code 5283 which provides for a higher evaluation if severe disability is shown. In this case, severe disability is not shown as the Veteran's reports on examination of pain, stiffness, weakness, and decreased speed of motion without flare-ups, and objective findings of tenderness and abnormal motion which manifest in limitation of motion of the ankle are contemplated by the 20 percent criteria for moderately severe disability. This is appropriate as such findings would not warrant more than a 20 percent evaluation pursuant to Code 5271. With regard to the time period on and after January 14, 2009, the evidence does not show that the assignment of a rating in excess of 20 percent for either the left tarsal disability or the left foot manifestations with arthritis is warranted. With regard to the ankle, the 20 percent rating for moderately severe disability manifested by symptoms ultimately resulting in limitation of motion, albeit with the ability to plantar flex to 30 degrees, adequately compensates the Veteran for tarsal manifestations of disability. Similarly, a 20 percent rating is assigned pursuant to Diagnostic Code 5284 for moderately severe disability resulting from arthritis and other manifestations with respect to the foot. The Veteran's reports of pain, swelling, weakness, lack of endurance, and weekly flare-ups where an additional 60 percent of motion is lost were considered in finding that the higher evaluation of 20 percent is warranted. However, by virtue of those findings the RO and the Board have found that an increased evaluation of 20 percent, but no higher, is warranted. The evidence, therefore, does not support the assignment of a higher evaluation due to severe disability. Accordingly, a 30 percent rating is not warranted under Diagnostic Code 5284. Similarly, with regard to the left foot, the maximum rating available for arthritis pursuant to Diagnostic Code 5010 is 20 percent. Moreover, the manifestations of arthritis were rated under Diagnostic Code 5284 and to assign a separate rating pursuant to Code 5010 would constitute pyramiding. It is also noted that the Veteran does not suffer from the loss of use of his left foot. Although he has an abnormal gait, he is able to walk up to 1/4 mile, he continues to drive, and he can stand and sit without assistance. Therefore, it cannot be said that he has lost the use of his left foot. Consequently, a higher 40 percent rating is not for application under 38 C.F.R. § 4.71a, Diagnostic Code 5167. In addition to the above, the record shows that the Veteran has developed peroneal atrophy of the left foot with foot drop during the appeal period. The examiner in February 2011 confirmed that the peroneal atrophy of the left foot was caused by the service-connected ankle tibia/fibula injury. As such, the assignment of a separate disability rating for peroneal atrophy of the left lower extremity is warranted. In order to ensure that there is no prejudice by virtue of the Board assigning a rating in the first instance, the agency of original jurisdiction will assign the rating and the effective date. Furthermore, the evidence also demonstrates that the Veteran has scars as a result of his service-connected disability. At the October 2004 examination, the examiner found that there was a posterior left leg scar measuring 6.5 cm x .5 cm, a 5 cm x .3 cm anterior left foot scar, a 3.5 cm x .5 cm scar to the dorsum of the left foot above the first toe, and a 1 cm scar on the tip of the toe. The examiner found that there was mild tenderness on palpation of the surgical scars. In light of this finding, the assignment of a separate disability rating for scars associated with the service-connected status post extensor tendon contracture on the left is warranted. While the number of scars found thereafter has differed and tenderness has also not been found thereafter, pursuant to McClain v. Nicholson, 21 Vet. App. 319 (2007), an associated disability manifested by scars is shown during the pendency of the claim. Again, to ensure that there is no prejudice by virtue of the Board assigning a rating in the first instance, the agency of original jurisdiction will assign the rating and the effective date. Finally, in exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The rating criteria contemplate the Veteran's service-connected left foot disability with degenerative joint disease, the left tarsal disability, and the lumbar spine disability, which are productive of pain, limited motion, back spasms, altered gait, fusion of the big toe, a leg length differential of 1/2 inch and an inability to dorsiflex the left ankle. These symptoms are specifically contemplated by the rating criteria. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5237, 5242, 5243, 5271, 5283, and 5284. The rating criteria are therefore adequate to evaluate the Veteran's service-connected left foot and left ankle disabilities, and lumbar spine disability; and, referral for consideration of extraschedular rating is not warranted. With respect to the aforementioned hearings, the Court of Appeals for Veterans Claims held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, both the RO employee and the VLJ noted the current appellate issues at the beginning of the hearing and obtained information concerning symptoms, functional impairment and treatment history. Following the Board hearing, the case was remanded in order to obtain additional treatment records and to afford the Veteran VA examinations. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearings. (CONTINUED ON NEXT PAGE) ORDER An initial disability rating in excess of 10 percent for the service-connected left foot disability with degenerative joint disease, prior to January 14, 2009, is denied. A disability rating in excess of 10 percent for the service-connected status post extensor tendon contracture on the left, prior to January 14, 2009, is denied. A disability rating of 20 percent, but no higher, for the service-connected left foot disability with degenerative joint disease is granted, effective from January 14, 2009. A disability rating of 20 percent, but no higher, for the service-connected status post extensor tendon contracture on the left is granted, effective from January 14, 2009. A disability rating in excess of 10 percent for the service-connected low back strain, prior to January 14, 2009, is denied. A disability rating of 20 percent, but no higher, for the service-connected low back strain is assigned from January 14, 2009; entitlement to a disability rating in excess of 20 percent for the service-connected low back strain is denied. The assignment of a separate disability rating for peroneal atrophy of the left lower extremity is granted. The assignment of a separate disability rating for scars associated with the service-connected status post extensor tendon contracture on the left is granted. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs