Citation Nr: 1327065	
Decision Date: 08/23/13    Archive Date: 08/29/13

DOCKET NO.  07-03 989	)	DATE
	)
	)

Received from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUES

1.  Entitlement to service connection for traumatic brain injury (TBI), manifested by memory loss. 

2.  Entitlement to an initial compensable rating for degenerative joint disease of the right first metatarsal. 

3.  Entitlement to an initial compensable rating from February 1, 2005, and a rating in excess of 10 percent from January 10, 2011, for a right knee disability, status post meniscectomy.

4.  Entitlement to an initial rating in excess of 10 percent for left knee laxity, status post meniscectomy.  

5.  Entitlement to an initial rating in excess of 10 percent for right shoulder impingement syndrome. 

6.  Entitlement to an initial rating in excess of 10 percent for a right wrist sprain with degenerative disease of the right hand. 

7.  Entitlement to an initial rating in excess of 10 percent for an inferior fracture of the right pelvis. 

8.  Entitlement to an initial rating in excess of 10 percent for residuals of recurrent right ankle sprains.  

9.  Entitlement to initial schedular ratings in excess of 10 percent from February 1, 2005, and 20 percent from January 1, 2007, for lumbar spine degenerative disc disease with intervertebral disc syndrome and right lower extremity radiculopathy.

10.  Entitlement to an initial rating in excess of 10 percent for cervical spine degenerative disc disease.

11.  Entitlement to an initial rating in excess of 30 percent for migraine headaches. 

12.  Entitlement to an initial compensable rating for bilateral hearing loss. 

13.  Entitlement to an initial compensable rating for a right hip cyst.

14.  Entitlement to extra-schedular ratings in excess of 10 percent from February 1, 2005, and 20 percent from January 1, 2007, for lumbar spine degenerative disc disease with intervertebral disc syndrome and right lower extremity radiculopathy.


REPRESENTATION

Appellant represented by:	The American Legion



ATTORNEY FOR THE BOARD

N. T. Werner, Counsel


INTRODUCTION

The Veteran served on active duty from October 1984 to October 1987 and from January 1988 to January 2005.  He was awarded the Combat Infantry Badge and a master parachute badge with combat device, among other decorations reflective of his twenty years of service as an infantryman and Army Ranger, including combat tours in Somalia and Panama. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision of the Department of Veterans Affairs Regional Office (RO) in Salt Lake City, Utah.  Jurisdiction over the appeal was since transferred to the RO in Chicago, Illinois.  In November 2010, the Board remanded the above claims for additional development.   

In a December 2006 rating decision, the RO granted the Veteran's migraine headaches a higher 30 percent rating effective from February 1, 2005.  In a March 2009 rating decision, the RO granted the Veteran's lumbar spine degenerative disc disease with intervertebral disc syndrome and right lower extremity radiculopathy a higher 20 percent rating effective from January 1, 2007.  In a May 2012 rating decision, the RO granted the Veteran's right knee disability, status post meniscectomy, a higher 10 percent rating effective from January 10, 2011.  In this regard, because these higher evaluations are not the maximum ratings possible under the law, the Board finds that these issues remain in appellate status.  See AB v. Brown, 6 Vet. App. 35 (1993) (in an appeal in which the veteran expresses general disagreement with the assignment of a particular rating and requests an increase, the RO and the Board are required to construe the appeal as an appeal for the maximum benefit allowable by law or regulation). 

A review of the record on appeal reveals that in January 2006 a healthcare professional opined that the Veteran's lumbar spine degenerative disc disease with intervertebral disc syndrome prevented him from working.  The Veteran is already in receipt of a total disability rating based on individual unemployability (TDIU).  With regard to the lumbar spine disability rating on appeal here, however, the Board finds this 2006 opinion reasonably raises a claim for extra-schedular ratings in excess of 10 percent from February 1, 2005, and 20 percent from January 1, 2007, for this disability.  See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337 (1996); Thun v. Peake, 22 Vet. App. 111 (2008).  The issue has been appropriately included above.

In the November 2010 Remand, the Board referred to the agency of original jurisdiction (AOJ) for appropriate action the Veteran's claims of entitlement to service connection for post-traumatic stress disorder (PTSD) and secondary service connection for kidney and urethra damage or alternatively a claim for compensation for kidney and urethra damage under the provisions of 38 U.S.C.A. § 1151 (West 2002) as well as his claim for special monthly compensation due to the requirement of aid and attendance of another person.  No action was taken on these claims while the appeal was in remand status.  Therefore, these claims are once again referred to the AOJ for appropriate action.  

The claim for an initial compensable rating for a right hip cyst and extra-schedular ratings for lumbar spine degenerative disc disease with intervertebral disc syndrome and right lower extremity radiculopathy are addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  Resolving all reasonable doubt in the Veteran's favor, a chronic disability manifested by memory loss, diagnosed as a residual of a traumatic brain injury, is a result of combat while on active duty. 

2.  At all times during the pendency of the appeal, the Veteran's degenerative joint disease (DJD) of the right first metatarsal is manifested by pain, but with no lost or painful motion, and x-ray evidence of DJD, equating to a moderate foot disability, but no more than moderate.

3.  From February 1, 2005, to January 9, 2011, the Veteran's right knee disability, status post meniscectomy, was manifested by full range of motion with crepitus, but no pain, and no evidence of ankylosis, a dislocated semilunar cartilage, instability, subluxation, impairment of the tibia and fibula, or Genu recurvatum.

4.  From January 10, 2011, the Veteran's right knee disability, status post meniscectomy, is manifested by full extension, limited flexion no worse than 90 degrees and pain, but no evidence of ankylosis, a dislocated semilunar cartilage, instability, subluxation, impairment of the tibia and fibula, or Genu recurvatum.

5.  At all times during the pendency of the appeal, the Veteran's left knee laxity, status post meniscectomy, is manifested by full extension, limited flexion no worse than 110 degrees, mild laxity, and painful motion, but no evidence of ankylosis, a dislocated semilunar cartilage, impairment of the tibia and fibula, or Genu recurvatum.

6.  At all times during the pendency of the appeal, the Veteran's right shoulder impingement syndrome is manifested by limited flexion no worse than 110 degrees, limited abduction no worse than 110 degrees, pain, and tenderness.

7.  At all times during the pendency of the appeal, the Veteran's right wrist disability is manifested by x-ray evidence of degenerative disease of the right hand, pain, and some limitation of motion.

8.  At all times during the pendency of the appeal, the Veteran's residuals of an inferior fracture of the right pelvis is manifested by limited flexion no worse than 50 degrees, limited abduction no worse than 30 degrees and pain, but no evidence of ankylosis, a flail joint, or impairment of the femur.

9.  At all times during the pendency of the appeal, the Veteran's residuals of recurrent right ankle sprains is manifested by limited dorsiflexion no worse than 6 degrees, plantar flexion no worse than 10 degrees, and pain, but with no evidence of ankylosis, amounting to a moderate disability picture.

10.  From February 1, 2005, to December 31, 2006, the Veteran's lumbar spine disability was manifested by pain and limited forward flexion no worse than 70 degrees, but no incapacitating episodes requiring physician prescribed bed rest and no objectively confirmed neurological abnormality.

11.  From January 1, 2007, the Veteran's lumbar spine disability was not manifested by ankylosis, incapacitating episodes requiring physician prescribed bed rest, or objectively confirmed neurological abnormality.  

12.  At all times during the pendency of the appeal, the Veteran's cervical spine degenerative disc disease is manifested by pain and limited flexion no worse than 30 degrees, but no incapacitating episodes requiring physician prescribed bed rest and no objectively confirmed neurological abnormality.

13.  At all times during the pendency of the appeal, the Veteran's migraine headaches are manifested by some characteristic prostrating attacks, but not frequent and prolonged enough as to cause severe economic inadaptability.  

14.  At all times during the pendency of the appeal, audiometric test results obtained during examination by VA audiologists in connection with the Veteran's hearing loss correspond to a numeric designation of no greater than I in the right ear and II in the left ear.






CONCLUSIONS OF LAW

1.  The criteria for entitlement to service connection for a TBI, manifested by memory loss, have been met.  38 U.S.C.A. §§ 1101, 1110, 1111, 1154, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 

2.  The criteria for a 10 percent initial rating, but no higher, for degenerative joint disease of the right first metatarsal have been met at all times during the pendency of the appeal.  38 U.S.C.A. §§ 1155, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5003, 5284 (2012).

3.  The criteria for higher ratings for the right knee disability, status post meniscectomy, have not been met at any time during the pendency of the appeal.  38 U.S.C.A. §§ 1155, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DCs 5256 to 5261 (2012).

4.  The criteria for an initial rating in excess of 10 percent for left knee laxity, status post meniscectomy, have not been met at any time during the pendency of the appeal.  38 U.S.C.A. §§ 1155, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DCs 5256 to 5261 (2012).

5.  The criteria for an initial rating in excess of 10 percent for right shoulder impingement syndrome have not been met at any time during the pendency of the appeal.  38 U.S.C.A. §§ 1155, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5203 (2012).

6.  The criteria for an initial rating in excess of 10 percent for a right wrist sprain with degenerative disease of the right hand have not been met at any time during the pendency of the appeal.  38 U.S.C.A. §§ 1155, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.27, 4.40, 4.45, 4.59, 4.71a, DC 5215 (2012).

7.  The criteria for an initial rating in excess of 10 percent for residuals of an inferior fracture of the right pelvis have not been met at any time during the pendency of the appeal.  38 U.S.C.A. §§ 1155, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.27, 4.40, 4.45, 4.59, 4.71a, DC 5252 (2012).

8.  The criteria for an initial rating in excess of 10 percent for residuals of recurrent right ankle sprains have not been met at any time during the pendency of the appeal.  38 U.S.C.A. §§ 1155, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.27, 4.40, 4.45, 4.59, 4.71a, DC 5271 (2012).  

9. The criteria for higher initial ratings for lumbar spine degenerative disc disease with intervertebral disc syndrome and right lower extremity radiculopathy, including a separate rating for radiculopathy, have not been met at any time during the pendency of the appeal.  38 U.S.C.A. §§ 1155, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.27, 4.40, 4.45, 4.59, 4.71a, 4.123, 4.124, 4.124a, DCs 5235 to 5243 and 8520 (2012).

10.  The criteria for an initial 20 percent rating for cervical spine degenerative disc disease have been met at all times during the pendency of the appeal.  38 U.S.C.A. §§ 1155, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.27, 4.40, 4.45, 4.59, 4.71a, 4.123, 4.124, 4.124a, DCs 5235 to 5243 and 8520 (2012).

11.  The criteria for an initial rating in excess of 30 percent for migraine headaches have not been met at any time during the pendency of the appeal.  38 U.S.C.A. §§ 1155, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.124a, DC 8100 (2012). 

12.  The criteria for an initial compensable rating for bilateral hearing loss have not been met at any time during the pendency of the appeal.  38 U.S.C.A. §§ 1155, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.85, 4.86, DC 6100 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's Duty to Assist and Notify

VA has statutory duties to notify and assist claimants in substantiating a claim for VA benefits.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  

Under 38 U.S.C.A. § 5102 VA has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete.  Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits.  The appellant must also be notified of what specific evidence she is to provide and what evidence VA will attempt to obtain.  Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim.  This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations.  38 U.S.C.A. § 5103A. 

In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (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.  See 38 U.S.C. § 5103(a).  

As to the service connection claim, given the fully favorable decision herein, the Board finds that any failure to provide such notice and assistance is harmless error.  

As to the rating claims, the Board notes that the Veteran is challenging the initial evaluations assigned following the grant of service connection for the disabilities.  In Dingess, the Court also held that in cases where service connection has been granted and initial disability evaluations have been assigned, the service connection claims have been more than substantiated, they have been proven, thereby rendering § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  Dingess, 19 Vet. App. at 490-91; see also Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  

As to the duty to assist, the Board finds that VA has secured all available and identified pertinent in-service and post-service evidence including the Veteran's service treatment records as well as his post-service records from the Hines VA Medical Centers, including all post-2005 treatment records in substantial compliance with the November 2010 Board remand instructions.  See 38 U.S.C.A. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). 

The record also shows that the Veteran was afforded VA examinations in connection with his claims in August 2004, September 2004, December 2005, August 2006, August 2007, January 2011, and April 2012.  The Board finds these examinations are adequate to adjudicate the claims, and that the January 2011 and April 2012 examinations substantially complied with the Board's remand directions, because the examiners either reviewed the record on appeal or took a medical history of the claimant that conforms with the evidence found in the record, conducted in-depth examinations of the claimant, and the examiners thereafter provided medical opinions as to the severity of the disabilities and rationales for the opinions that allows the Board to rate the disabilities under all applicable rating criteria.  Id; also see 38 U.S.C.A. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).  The Board also notes that the December 2005 and August 2006 audiological examiners provided opinions as to the impact the Veteran's hearing loss had on his employability. 

In summary, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A, or 38 C.F.R. § 3.159.  Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the appeal.  See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).  

In adjudicating the claims below, the Board has reviewed all of the evidence in the Veteran's claims file including those found in virtual VA.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Service Connection (TBI/Memory Loss)

The Veteran seeks service connection for a chronic disability manifested by memory loss which he indicates he has had ever since he sustained multiple head injuries while jumping out of helicopters and aircraft in training as well as in combat in Somalia and Panama.

In general, in order to prevail on the issue of service connection the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

As noted in the introduction, the Veteran's military records confirm he is in receipt of, among other things, the combat infantry badge (CIB) for his combat service in Somalia and Panama.  In Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996), the United States Court of Appeals for the Federal Circuit held that under 38 U.S.C.A. § 1154(b), a combat veteran's assertions of an event during combat are to be presumed if consistent with the time, place and circumstances of such service. However, 38 U.S.C.A. § 1154(b) can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to a current disorder. See Libertine v. Brown, 9 Vet. App. 521, 522-23 (1996). Section 1154(b) does not establish service connection for a combat veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service. 

Again, the Veteran claims entitlement to service connection for "memory loss" related to in-service head injuries, concussions, and loss of consciousness.

August 2004 and January 2011 VA examiners confirm that the Veteran has symptoms of memory loss as well as noting his history of in-service head injuries.  The January 2011 VA examiner specifically diagnosed the Veteran with memory loss as a residual of his traumatic brain injuries (TBIs).  No medical opinion indicates a contrary opinion.

While it is clear the medical evidence supports a finding of TBI, manifested by memory loss, related to in-service head injury, the objective evidence does not confirm in-service head injuries.

That is, while service treatment records dated in 2004 indicate a "history" of head injury in 1992 related to a parachute jump, to include loss of consciousness, no records from 1992 confirm this injury.  There are no contemporaneous medical records noting injury or treatment for head injury, concussion, or loss of consciousness.  In contrast, the Veteran at times reported receiving 30 concussions with 11 incidences of loss of consciousness.  Although the Veteran was a parachutist with confirmed combat exposure, it is incredible that the Veteran's voluminous service treatment records would contain nothing but a noted "history" of head injury with loss of consciousness.  

On the other hand, head injury is consistent with the circumstances of the Veteran's combat service as a parachutist.  As an aside, the Board also finds noteworthy that the Veteran is already service-connected for chronic migraine headaches associated with in-service head injury, loss of consciousness, and concussions.  

Resolving all reasonable doubt in favor of the Veteran, the Board concludes the evidence is at least in relative equipoise and, therefore, service connection is warranted for TBI, manifested by memory loss.

Increased Rating Claims

The Veteran alleges that his disabilities are worse than rated and therefore warrant higher evaluations at all times during the pendency of the appeal.

Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes.  38 C.F.R. § 4.27.  When rating the Veteran's service-connected disability, the entire medical history must be borne in mind.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  The Court has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999).

Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

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 location and symptomatology are closely analogous.  38 C.F.R. § 4.20.

When evaluating loss in range of motion, consideration is given to the degree of functional loss caused by pain.  DeLuca v. Brown, 8 Vet. App. 202 (1995) (evaluation of musculoskeletal disorders rated on the basis of limitation of motion requires consideration of functional losses due to pain).  In DeLuca, the Court explained that, when the pertinent diagnostic criteria provide for a rating on the basis of loss of range of motion, determinations regarding functional losses are to be "'portray[ed]' (38 C.F.R. § 4.40) in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups."  Id. at 206.

Under 38 C.F.R. § 4.40, 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.  It is essential that the examination on which ratings are based adequately portray the anatomical damage, and functional loss with respect to all these elements.  The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion.  Weakness is 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.

Additionally, 38 C.F.R. § 4.45 provides, as regards to the joints, that the factors of disability reside in reductions of their normal excursion of movements in different planes.  Inquiry will be directed to these considerations:  (a) Less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.).  (b) More movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.).  (c) Weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.).  (d) Excess fatigability.  (e) Incoordination, impaired ability to execute skilled movements smoothly.  (f) Pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations.  

Likewise, 38 C.F.R. § 4.59 provides that with any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification.  Sciatic neuritis is not uncommonly caused by arthritis of the spine.  The intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability.  It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations.  The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.  In Burton v. Shinseki, 25 Vet. App. 1 (2011), the Court held that 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. 

Right First Metatarsal (Toe) Disability

The February 2005 rating decision granted service connection for DJD of the right first metatarsal (right first toe disability) and assigned a non compensable rating under 38 C.F.R. § 4.71a, DC 5284, effective from February 1, 2005.

38 C.F.R. § 4.71a, Diagnostic Code 5284, provides a 10 percent rating for a moderate foot injury, a 20 percent rating for a moderately severe foot injury, and a 30 percent rating for a severe foot injury.  The terms "mild", "moderate", "moderately severe" and "severe" are not defined in the Rating Schedule.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are equitable and just.  38 C.F.R. § 4.6.  The use of terminology such as mild or moderate by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue.  All evidence must be evaluated in arriving at a decision regarding an increased rating.  38 C.F.R. §§ 4.2, 4.6.

DJD may also be rated under DC 5003, for degenerative arthritis.  A 10 percent rating is assigned for x-ray evidence of arthritis in two or more major joints or two or more minor joint groups with some objective evidence of limitation of motion otherwise noncompensable under the appropriate diagnostic codes.  38 C.F.R. § 4.71a, DC 5003.  A 20 percent rating is awarded where the arthritis also causes occasional incapacitating exacerbations.  These ratings are not to be combined with ratings based on limitation of motion.  Id. at Notes (1) and (2).  Here, although the Veteran has x-ray confirmation of DJD, the afflicted joint is a single, minor metatarsal joint.  Thus, regardless of range of motion findings, this diagnostic code would not warrant a compensable rating here.

The Veteran was afforded VA examinations in 2004, 2006, and 2011.  The objective evidence from these examinations along with VA outpatient treatment records indicates a "moderate" foot disability, warranting a 10 percent rating for the entire time frame, but no higher.  

Specifically, the Veteran was afforded a VA examination in September 2004.  As to the right first toe, he complained of intermittent pain especially with walking and with putting wait on the ball of his foot.  However, he denied having a problem with swelling, incapacitating pain, and with significant flare-ups.  He does not require an assistive device or brace.  It does not significantly affect his ambulatory distance and/or capacity as long as he accepts the pain. On examination, there was slight pain in the first metacarpophalangeal joint as well as in the second and third joints.  However, his gait and station were normal.  There was no significant deformity of the feet.  

At the August 2006 VA examination, the Veteran complained of pain in the plantar aspect of his right forefoot which pain was exacerbated by weight bearing.  However, he denied having problems with pain at rest, stiffness, swelling, inflammation, or fatigue.  The Veteran did not treat his toe with medication, a special shoe, or a devise.  On examination of the right foot, there was mild tenderness as well as callosities over the forefoot as well as mild hallux valgus.  However, there was no fat pad atrophy, the arch was normal, there was no varus deformity of the calcaneus, range of motion was unrestricted, pulses were intact, sensation was preserved, there were no hammer toes or claw foot, and the nail condition was good.  Toe strength was 5/5 and ankle strength was -4/5.  Joint motion was not painful.  X-rays showed an old fracture.  The diagnoses were mild degenerative changes of the right first metacarpophalangeal joint and mild hallux valgus.

Lastly, at the January 2011 VA examination the Veteran complained of daily right foot pain with walking.  He denied having any flare-ups.  He wears gym shoes without an insert.  The Veteran reported that he is able to do all activities of daily living despite his foot complaints.  On examination, there was mild tenderness of the distal portion of the first metatarsal.  However, he does not have any unusual shoe wear and there was no indication of flat foot, a high arch, claw toes, hallux deformity, or a toe deformity.  The Achilles tendon had a normal alignment and did not cause pain when manipulated.  Range of motion studies of the toes did not reveal pain or any lost motion after three repetitions.  Sensory examination was normal.  It was opined that the disability was not a limiting factor as to walking.  X-rays showed small spurs and no recent fracture.  It was opined that there were no flare-ups or change of functional capacity of the joint with repetitive use.  

The Veteran's treatment records as well as the VA examinations document the Veteran's consistent complaints of right first toe pain.  Moreover, all three of his VA examinations were uniform in finding objective evidence of pain.  

In short, the Veteran's right toe disability is mainly manifested by pain, but no other significant abnormality.  In considering the Veteran's consistent complaints of pain in light of 38 C.F.R. § 4.59 as well as 38 C.F.R. §§ 4.40, 4.45, however, the Board finds that with application of the doctrine of reasonable doubt that the clinical evidence of record shows his right first toe disability is manifested by adverse symptomatology that equates to a moderate foot injury.  Therefore, the Board finds that he meets the criteria for a compensable rating under DC 5284.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.71a; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  This is true at all times during the pendency of the appeal and therefore consideration of staged ratings is not warranted.  Fenderson, 12 Vet. App. at 126.

The record does not suggest that the Veteran's disability approximates the degree of severity required for a 20 percent rating under the rating criteria.  In this regard, as reported above, his adverse symptomatology was limited to subjective complaints of pain and objective evidence of this pain with no lost motion or strength.  Therefore, even when considering the Veteran's complaints of pain in light of 38 C.F.R. §§ 4.40, 4.45, 4.59 the clinical evidence of record does not show it is manifested by adverse symptomatology that equates to a "moderately severe" foot disability.  Accordingly, a rating in excess of 10 percent is not warranted under DC 5284.  See 38 C.F.R. § 4.71a.  This is true at all times during the pendency of the appeal and therefore consideration of staged ratings is not warranted.  Fenderson, 12 Vet. App. at 126.

The Board considered the applicability of alternative diagnostic codes, but found no provision in which to award a higher rating.  To that end, the Board finds VA examinations were negative for problems similar to flat feet, weak foot, or malunion or nonunion of the tarsal or metatarsal bones.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5276, 5277, and 5283 (2012).  In fact, the December 2005, August 2006, and/or January 2011 VA examiner specifically opined that he did not have evidence of these disabilities.  In the absence of such adverse symptomatology, the Board will not rate the Veteran's service connected his right first toe disability as one of these other disabilities.  See 38 C.F.R. § 4.20; Butts v. Brown, 5 Vet. App. 532 (1993) (holding that the Board's choice of a diagnostic code should be upheld so long as it is supported by explanation and evidence.).  Thus, the Veteran is entitled to a 10 percent, compensable rating for his right toe disability during the entire appellate time frame, but no higher.

Bilateral Knee Disabilities

The February 2005 rating decision granted service connection for left knee laxity, status post meniscectomy (left knee disorder), and right knee disability, status post meniscectomy (right knee disorder) and rated the left knee disorder as 10 percent disabling and the right knee disorder as non compensable, both from February 1, 2005.  A May 2012 rating decision granted the Veteran's right knee disorder a 10 percent rating effective from January 10, 2011.  The RO rated the Veteran's left knee disorder under 38 C.F.R. § 4.71a, Diagnostic Code 5257 and right knee disorder under 38 C.F.R. § 4.71a, Diagnostic Code 5260.  

As noted above, a compensable rating is warranted under DC 5003 if there is x-ray evidence of arthritis of major joints with limited motion not otherwise compensable under the applicable diagnostic codes.  See 38 C.F.R. § 4.71a, DC 5003.  Here, full range of motion of the knee is from 0 to 140 degrees.  38 C.F.R. § 4.71, Plate II.

The applicable diagnostic codes for range of motion of the knee are DCs 5260 and 5261.  Under DC 5260, a 10 percent rating is awarded if flexion of the knee is limited to 45 degrees; a 20 percent rating is assigned if flexion of the knee is limited to 30 degrees; and a 30 percent rating is assigned for limited flexion to 15 degrees.  38 C.F.R. § 4.71a, DC 5260.  Under DC 5261, if extension of the knee is limited to 10 degrees a 10 percent rating is in order.  If extension of the knee is limited to 15 degrees a 20 percent rating is in order.  If extension of the knee is limited to 20 degrees a 30 percent rating is in order.  If extension of the knee is limited to 30 degrees a 40 percent rating is in order.  Id. at DC 5261.

The left knee was awarded a 10 percent rating under DC 5257, for mild laxity.  Under DC 5257, for recurrent subluxation or lateral instability of the knee, a 10 percent rating is assigned for slight disability, a 20 percent rating is awarded for moderate disability, and a 30 percent rating is awarded for severe disability.  38 C.F.R. § 4.71a, DC 5257. 

Other diagnostic codes applicable to knees include DC 5256 (for ankylosis), DCs 5258 and 5259 (for cartilage disabilities), DC 5262 for impairment of the tibia and fibula, and DC 5263 for Genu recurvatum.

Under 38 C.F.R. § 4.71a, Diagnostic Code 5256, ankylosis of the knee at a favorable angle in full extension or in slight flexion between 0 degrees and 10 degrees warrants a 30 percent rating; ankylosis with flexion between 10 degrees and 20 degrees warrants a 40 rating; ankylosis with flexion between 20 degrees and 45 degrees warrants a 50 rating; and extremely unfavorable ankylosis (flexion at an angle of 45 degrees or more) warrants a 60 percent rating.

Under 38 C.F.R. § 4.71a, Diagnostic Code 5258, dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint warrants a 20 percent rating.  Under 38 C.F.R. § 4.71a, Diagnostic Code 5259, removal of the semilunar cartilage when symptomatic warrants a 10 percent rating.

Under 38 C.F.R. § 4.71a, Diagnostic Code 5262, impairment of the tibia and fibula with slight knee or ankle disability warrants a 10 percent rating; with moderate knee or ankle disability warrants a 20 percent rating; with marked knee or ankle disability warrants a 30 percent rating; and with nonunion (loose motion requiring brace) warrants a 40 percent rating.

Under 38 C.F.R. § 4.71a, Diagnostic Code 5263, Genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated) warrants a 10 percent rating.

In Esteban v. Brown, 6 Vet. App. 259, 261 (1994), that Court held that in cases where the record reflects that the appellant has multiple problems due to service-connected disability, it is possible for an appellant to have "separate and distinct manifestations" from the same injury, permitting separate disability ratings.  The critical element is that none of the symptomatology for any of the conditions is duplicative or overlapping with the symptomatology of the other conditions.  Id.  

In this regard, VA General Counsel has also held that separate ratings may be assigned in cases where a service-connected knee disability includes both a compensable limitation of flexion under Diagnostic Code 5260, and a compensable limitation of extension under Diagnostic Code 5261 provided that the degree of disability is compensable under each set of criteria.  VAOPGCPREC 9-2004; 69 Fed. Reg. 59990 (2004).  The basis for the opinion was a finding that a limitation in planes of movement were each compensable.  Id.

VA General Counsel has also held that separate ratings may be assigned in cases where the service-connected knee disability includes both arthritis and instability, provided of course, that the degree of disability is compensable under each set of criteria. VAOPGCPREC 23-97 (July 1, 1997).

Here, the Board finds the medical evidence does not support an increased rating for the left knee disability or right knee disability. 

The Veteran was afforded VA examinations in September 2004 and January 2011.  In 2004, the Veteran's bilateral knees exhibited full (0 to 140 degrees) range of motion.  The Veteran did not complain of any right knee pain (although the examiner noted crepitus), but did complain of left knee pain with extension. The examiner further noted the right knee did not have any laxity whereas the left knee has "a little bit of laxity."

In January 2011, range of motion testing after repetitive use indicated right knee motion from 0 degrees extension to 90 degrees flexion, with left knee flexion limited to 110 degrees (with full extension).  At that time, the examiner found both knees to be stable with no ligament abnormality.

VA outpatient treatment records merely indicate periodic complaints of knee pain and treatment.

In short, the Veteran's bilateral knees never exhibited range of motion limitations warranting compensable ratings under DC 5260 or DC 5261.  There is some evidence of "a little bit of laxity" in the left knee, but no laxity or instability of the right knee.  The medical evidence does not indicate any other knee abnormality.  

In light of the medical evidence, the Board finds no increased rating for either knee is warranted. 

The right knee was rated non-compensable prior to the January 10, 2011 VA examination findings and 10 percent thereafter.  Prior to 2011, the Veteran exhibited full range of motion in his right knee with no objective evidence of painful motion or any other abnormality. In contrast, in January 2011, the Veteran's flexion was limited to 90 degrees with complaints of pain on repetition.  Although technically non-compensable at all times, as of January 10, 2011, the Veteran exhibited some amount of functional limitations due to pain that he previously did not exhibit.  Thus, a compensable 10 percent rating is warranted effective January 10, 2011 for the right knee in light of functional limitations due to pain, fatigue, lack of endurance, incoordination, and repetitive use.  Cf. 38 C.F.R. §§ 4.40, 4.45, and 4.59.    

The left knee similarly did not exhibit range of motion findings compensable under DC 5260 or DC 5260, but there was objective evidence of pain and "a little bit of laxity" in 2004.  Indeed, the Veteran was awarded a 10 percent rating for "slight" laxity under DC 5257 based on the 2004 VA examination findings and despite the fact that the 2011 VA examiner found stable ligaments.  A higher rating under DC 5257 is not warranted because there is no evidence of subluxation or instability that is moderate.  

The Board finds the medical evidence does not support any separate or higher evaluations under any other knee diagnostic code. None of the medical evidence indicates the Veteran's knees are ankylosed (or frozen).  The Veteran does not have Genu recurvatum or an impairment of the tibia and fibula.  

DCs 5258 and 5259 are similarly inapplicable here as the evidence does not support cartilage dislocation or removal causing frequent episodes of locking, joint effusion, or other symptoms. In this regard, while the Veteran's medical history shows that he had left knee surgery in 1996 and again in 1999 and right knee surgery in 2000, he only had his medial meniscus repaired at those times.  In the absence of such adverse symptomatology, the Board will not grant the Veteran compensable and/or higher evaluations for his bilateral knee disabilities under these rating criteria.  See Butts, 5 Vet. App. 532.  

The Board has considered all applicable and potentially applicable diagnostic codes and found no provision in which to award the Veteran higher ratings or separate ratings for his bilateral knees.  

Right Shoulder Disability

The February 2005 rating decision granted service connection for right shoulder impingement syndrome (right shoulder disability) and granted a 10 percent disability rating under 38 C.F.R. § 4.71a, Diagnostic Code 5299-5203, for impairment of the clavicle or scapula, effective from February 1, 2005.

Initially, the Board notes that the record is uniform in finding that the Veteran is right handed and, therefore, the disability affects his "major" side.  See, for example, April 2012 VA examination.

Under DC 5203, a 10 percent rating is awarded for malunion of the joint whether it affects the major or minor side.  A 10 percent rating is also assigned if the impairment causes nonunion without loose movement on the major or minor side.  A 20 percent rating is assigned if the impairment causes dislocation or, alternatively, nonunion with loose movement on the major or minor side.  See 38 C.F.R. § 4.71a, DC 5203.

Normal range of motion of the shoulder is flexion to 180 degrees, abduction to 180 degrees, external rotation to 90 degrees, and internal rotation to 90 degrees.  See 38 C.F.R. § 4.71a, Plate I (2012).

Limitation of motion of the arm midway between side and shoulder level warrants a 30 percent evaluation (major).  Limitation of motion of the arm to 25 degrees from side warrants a 40 percent evaluation (major).  38 C.F.R. § 4.71a, Diagnostic Code 5201.  

The Veteran was afforded VA examinations in September 2004 and April 2012.  In September 2004, the Veteran was diagnosed with a classic impingement syndrome with pain, flexion limited to 132 degrees and abduction limited to 140 degrees.  The Veteran's muscles and muscle strength were within normal limits.  In April 2012, the examiner complained of right shoulder pain.  Range of motion testing indicated flexion limited to 110 degrees and abduction limited to 110 degree.  Muscle strength testing was within normal limits.  VA outpatient treatment records also show periodic complaints and treatment for right shoulder pain.

In short, the medical evidence indicates the Veteran's right shoulder disability is largely manifested by pain and limited motion, no worse than flexion limited to 110 degrees, abduction limited 110 degrees.

The Board notes DC 5203 was applied by the RO by analogy.  The medical evidence does not, however, support dislocation, nonunion, or malunion of the clavicle or scapula.  For example, the September 2004 VA examiner did not report the Veteran having these problems -instead he opined that the shoulder developed pain classic for an impingement syndrome.  Similarly, while at the April 2012 VA examination the Veteran complained of a daily problem with shoulder pain and instability caused by abduction and external rotation, he denied having a problem with recurrent dislocation.  Moreover, the examiner specifically opined that he did not have a history of recurrent dislocations or a problem with other impairment of the clavicle or scapula including nonunion with loose movement.  Moreover, while a review of the record on appeal reveals the Veteran's periodic complaints and treatment for right shoulder pain nothing in these records show a problem with dislocation or nonunion of the clavicle or scapula with loose movement.  

Therefore, because the most competent and credible evidence if record is against finding that the Veteran's disability is manifested by nonunion with loose movement or dislocation of the clavicle or scapula a higher evaluation is not warranted under Diagnostic Code 5203.  

A higher evaluation is also not warranted under DC 5201, for limited motion of the arm.  As noted above, range of motion testing results of record do not indicate limited motion at shoulder level (90 degrees) or less even taking into account the Veteran's pain and functional loss on repetitive use. Given the above range of motion studies, the Board finds that even when considering functional limitations due to pain and the other factors identified in 38 C.F.R. §§ 4.40, 4.45 and 4.59 the Veteran's functional losses do not equate to the criteria required for a higher rating for his major right shoulder because at its worst his right arm is not limited to midway between side and shoulder level (i.e., 90 degrees) but instead is 110 degrees.  Therefore, the Board finds that the criteria required for a higher, 30 percent rating, are not met.  38 C.F.R. §§ 4.2, 4.3, 4.7, 4.71a.  This is true throughout the period of time during which his claim has been pending and therefore consideration of staged ratings is not warranted.  

As to alternative diagnostic codes, the Board finds them inapplicable here.  DC 5200, for ankylosis, is not inapplicable because the medical evidence does not support a finding of ankylosis. In fact, the April 2012 VA examiner specifically opined that there was no ankylosis.  Similarly, DC 5202 for fibrous union of the humerus, nonunion of the humerus (false flail joint), or loss of head of humerus (flail shoulder), is inapplicable here because the medical records, to include findings at the September 2004 and April 2012 VA examinations as well as the X-rays taken at some of these times, are negative for a diagnosis of any of the above disorders.  

The Board has considered all applicable and arguably applicable diagnostic codes for his right shoulder and found no provision in which a higher rating may be granted.  Entitlement to a rating greater than 10 percent for his right shoulder disability is not warranted.

Right Wrist Disability

The February 2005 rating decision granted service connection for residuals of a right wrist sprain with degenerative disease of the right hand (right wrist disability) and granted a 10 percent disability rating under 38 C.F.R. § 4.71a, Diagnostic Code 5215, for limited motion of the wrist, effective from February 1, 2005.DC 5215 does not provide for a rating greater than 10 percent.  See 38 C.F.R. § 4.71a, DC 5215.

Rather, under DC 5214, a rating greater than 10 percent is warranted where there is evidence of ankylosis of the wrist.  See generally id. at DC 5214.

The medical evidence in this case, however, does not confirm ankylosis of the wrist.  The Veteran was afforded VA examinations in September 2004 and April 2012, which were both negative for a diagnosis of ankylosis. In fact, while the September 2004 VA examiner reported that the Veteran wears a brace to prevent accidental dorsiflexion, the wrist nonetheless had motion.  Moreover, the April 2012 VA examiner specifically opined that there was no ankylosis.  Additionally, while treatment records periodically document the Veteran's complaints and treatment for right wrist problems, nothing in these records contradicts the VA examiner's findings.  In the absence of such a diagnosis, the Board will not rate the Veteran's service connected right wrist disability as ankylosis.  See 38 C.F.R. § 4.20.  Consequently, the Board finds that a higher evaluation is not warranted for the Veteran's service-connected right wrist disability under Diagnostic Code 5214. 

As to rating the Veteran's right wrist disability under one of the Diagnostic Codes used to rate finger disabilities under 38 C.F.R. § 4.71a, Diagnostic Codes 5216 to 5230 (2012), the Board notes that the record, including the findings at the September 2004 and April 2012 VA examinations are negative for ankylosis of any finger on the right hand.  In fact, the September 2004 VA examiner opined that the hand is fully functional with no lost flexion or extension when making a first and other finger function.  In the absence of such adverse symptomatology, the Board will not rate the Veteran's service connected right wrist disability as one of these other disabilities.  See 38 C.F.R. § 4.20.

The Board finds no applicable provision available that provides for a rating greater than 10 percent for the right wrist, and therefore an increased rating is not warranted.

Right Pelvis Disability

The February 2005 rating decision granted service connection for residuals of an inferior fracture of the right pelvis (right pelvis disability) and granted a 10 percent disability rating under 38 C.F.R. § 4.71a, Diagnostic Code 5252, effective from February 1, 2005.

Under all potentially applicable rating criteria, the Veteran will only be entitled to a rating in excess of 10 percent for his right pelvis disorder if it is manifested by hip ankylosis which is "favorable" (in flexion at an angle between 20 degrees and 40 degrees, and slight adduction or abduction) (60 percent), "intermediate" (70 percent), or "unfavorable" (extremely unfavorable ankylosis, the foot not reaching ground, crutches necessitated) (90 percent) (Diagnostic Code 5250); limitation of thigh flexion to 30 degrees (20 percent) or limitation of thigh flexion to 20 degrees (30 percent) (Diagnostic Code 5252); abduction is lost beyond 10 degrees (20 percent) (Diagnostic Code 5253); a flail joint (80 percent) (Diagnostic Code 5254); or impairment of the femur with malunion with moderate knee or hip disability (20 percent), impairment of the femur with malunion with marked knee or hip disability (30 percent), with nonunion, without loose motion, and weight bearing preserved with aid of brace (60 percent), fracture of surgical neck with false joint (60 percent), or fracture of shaft or anatomical neck with nonunion and loose of motion [spiral or oblique fracture] (80 percent) (Diagnostic Code 5255).  See 38 C.F.R. § 4.71a.

As to a higher evaluation under 38 C.F.R. § 4.71a, Diagnostic Codes 5252 and/or 5253, at the September 2004 VA examination the examiner opined that the range of motion of the right hip is normal with flexion to 125 degrees and abduction to 45 degrees with pain with maximum abduction.  

Similarly, at the January 2011 VA examination the Veteran complained of right hip discomfort.  On examination, the range of motion of the right thigh taking into account his complaints of pain and after repetition was flexion to 50 degrees and abduction to 20 degrees.

While a review of the record on appeal reveals the Veteran's periodic complaints and treatment for right hip pain nothing in these records show the range of motion of the right hip less than what was reported at the above VA examinations.  

Given the above range of motion studies, the Board finds that even when considering functional limitations due to pain and the other factors identified in 38 C.F.R. §§ 4.40, 4.45, 4.59 the Veteran's functional losses do not equate to the criteria required for a higher rating for his right pelvis disability because at its worst flexion to is not limited to 20 degrees and/or abduction is not lost beyond 10 degrees but instead flexion is 50 degrees and abduction is 20 degrees.  Therefore, the Board finds that the criteria required for a higher, 20 percent rating, are not met under either Diagnostic Code 5252 or Diagnostic Code 5253.  38 C.F.R. §§ 4.2, 4.3, 4.7, 4.71a.  This is true throughout the period of time during which his claim has been pending and therefore consideration of staged ratings is not warranted.  

A higher rating under another Diagnostic Code is also not warranted. As to a higher evaluation under Diagnostic Code 5250 for ankylosis, the Board notes that the record on appeal, including the findings at the September 2004 and January 2011 VA examinations, is negative for a diagnosis of ankylosis of the right hip.  In the absence a diagnosis of ankylosis, the Board may not rate his service-connected right pelvis disability as ankylosis.  Therefore, a higher evaluation is not warranted under Diagnostic Code 5250.  

As to a higher evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5251, the Board notes that his current rating equals the maximum rating possible for limitation of extension of the thigh.  Accordingly, the Board finds that his claim for a higher evaluation for his right pelvis disability under these rating criteria must be denied as a matter of law.  

As to a higher evaluation under Diagnostic Code 5254 for a flail joint or Diagnostic Code 5255 for impairment of the femur, the Board notes that the record on appeal, including the findings at the September 2004 and January 2011 VA examinations as well as the X-rays taken at some of these times, are negative for a diagnosis of the above disorders.  In the absence of objective evidence of these disabilities, the Board will not rate his right pelvis disability under Diagnostic Code 5254 or Diagnostic Code 5255.  

The Board has considered all potentially applicable diagnostic codes and found none in which to assign the Veteran a higher rating for his right pelvis disability.  An increased rating is not warranted.

Right Ankle Disability

The February 2005 rating decision granted service connection for residuals of recurrent right ankle sprains (right ankle disability) and granted a 10 percent disability rating under 38 C.F.R. § 4.71a, Diagnostic Code 5271, for limited motion, effective from February 1, 2005.

Under DC 5271, a 10 percent rating is awarded for limited motion that is "moderate" and a 20 percent rating is awarded for limited motion that is "marked."  Id.  Normal range of motion of the ankle is 0 to 20 degrees of dorsiflexion and 0 to 45 degrees of plantar flexion.  See 38 C.F.R. § 4.71a, Plate II (2012).  

Under 38 C.F.R. § 4.71a, Diagnostic Code 5270, ankylosis of either ankle warrants a 20 percent evaluation if the ankle is fixed in plantar flexion at an angle of less than 30 degrees. A 30 percent evaluation requires that the ankle be fixed in plantar flexion at an angle between 30 degrees and 40 degrees, or in dorsiflexion at an angle between zero degrees and 10 degrees.  Ankylosis at greater angles, or an abduction, adduction, inversion, or eversion deformity warrants a 40 percent rating.  

Under 38 C.F.R. § 4.71a, Diagnostic Code 5272, ankylosis of the subastragalar or tarsal joint of either ankle warrants a 10 percent evaluation if the joint is fixed in a good weight-bearing position.  A 20 percent evaluation requires that the joint be fixed in a poor weight-bearing position. 

Under 38 C.F.R. § 4.71a, Diagnostic Code 5273, malunion of the os calcis or astragalus of either ankle warrants a 10 percent evaluation if there is moderate deformity.  A 20 percent evaluation requires marked deformity.

Under 38 C.F.R. § 4.71a, Diagnostic Code 5274, an astragalectomy involving either ankle warrants a 20 percent evaluation.  

As to a higher evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5271, the Board notes that at the September 2004 VA examination the right ankle had dorsiflexion from 0 to 6 degrees and plantar flexion from 0 to 46 degrees with maximum passive inversion increased at 40 degrees with no pain, edema, effusion, hyperthermia, or induration.  

Similarly, at the January 2011 VA examination, the Veteran continued to complain of right ankle pain.  The range of motion of the right ankle after repetition was dorsiflexion from 0 to 10 degrees with pain throughout and plantar flexion from 0 to 10 degrees also with pain throughout.

While a review of the record on appeal reveals the Veteran's periodic complaints and treatment for right ankle pain nothing in these records show the range of motion of the right ankle less than what was reported at the above VA examinations.  

Given the above, the Board finds that even when considering the Veteran's complaints of pain in light of 38 C.F.R. §§ 4.40, 4.45, 4.59 the clinical evidence of record, which shows lost dorsiflexion to 10 degrees out of 20 degrees and lost plantar flexion to 10 degrees out of 45 degrees (see Plate II), is not manifested by adverse symptomatology that equates to at least "moderate" limitation of motion of the right ankle.  In this regard, the Board notes that while the January 2011 VA examiner reported that the Veteran had pain with all dorsiflexion and plantar flexion, the Court has explained that there is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion.  Mitchell v. Shinseki, 25 Vet. App. 32 (2011).  In the present case, there is simply no evidence of additional functional loss due to pain beyond the already reduced 10 degrees of motion of sufficient severity to warrant a disability evaluation in excess of 10 percent under Diagnostic Code 5271.  Accordingly, a higher evaluation is not warranted under Diagnostic Code 5271.  See 38 C.F.R. § 4.71a.  This is true throughout the period of time during which his claim has been pending and therefore consideration of staged ratings is not warranted.  

As to rating the Veteran's right ankle disability under Diagnostic Code 5270 and/or 5272 due to ankylosis, the Board notes that the record, including the findings at the September 2004 and January 2011 VA examinations are negative for a diagnosis of ankylosis.  In the absence of ankylosis, the Board may not rate his service-connected right ankle disability as ankylosis.  Consequently, a higher evaluation is not warranted for the Veteran's service-connected right ankle disability under 38 C.F.R. § 4.71a, Diagnostic Codes 5270. 

As to rating the Veteran's right ankle disability under Diagnostic Codes 5273 for malunion of the os calcis or astragalus or 5274 for astragalectomy, the Board notes that the record on appeal, including the findings at the September 2004 and January 2011 VA examinations as well as the X-rays taken at some of these times, are negative for a diagnosis of the above disorders.  In the absence of objective evidence of these disabilities, the Board will not rate his right shoulder disability under Diagnostic Codes 5273 or 5274.  

The Board has considered all potentially applicable diagnostic codes and finds none that warrant a higher rating for his right ankle disability.

Lumbar and Cervical Spine Disabilities

The February 2005 rating decision granted service connection for lumbar spine degenerative disc disease with intervertebral disc syndrome and right lower extremity radiculopathy (low back disability) and cervical spine degenerative disc disease (cervical spine disability) and rated each disability as 10 percent disabling effective February 1, 2005.  A March 2009 rating decision granted the Veteran a 20 percent disability rating for his low back disability effective January 1, 2007.  The RO rated the Veteran's low back disability under 38 U.S.C.A. § 4.71a, Diagnostic Code 5243, for intervertebral disc syndrome, and his cervical spine disability under 38 U.S.C.A. § 4.71a, Diagnostic Code 5242, for degenerative arthritis.

In this regard, the General Rating Formula for Disease and Injuries of the Spine, provides a 10 percent rating if forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees, if forward flexion of the cervical spine is greater than 30 degrees but not greater than 40 degrees, the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees, the combined range of motion of the cervical spine is greater than 170 degrees but not greater than 335 degrees, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or a vertebral body fracture with loss of 50 percent or more of the height; a 20 percent rating if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, if forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees, if the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, if the combined range of motion of the cervical spine is not greater than 170 degrees, or guarding severe enough to result in an abnormal gait, or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis; a 30 percent rating if forward flexion of the cervical spine is 15 degrees or less or there is favorable ankylosis of the entire cervical spine; and a 40 percent rating if there is unfavorable ankylosis of the entire cervical spine or favorable ankylosis of the entire thoracolumbar spine.  38 C.F.R. § 4.71a, Diagnostic Code 5235-5242.  Note(1) also articulates that neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code.  Id.

Moreover, the Formula for Rating Intervertebral Disc Syndrome provides a 10 percent rating if his  adverse symptomatology includes incapacitating episodes having a total duration of at least 1 week during the past 12 months, a 20 percent rating if his  adverse symptomatology includes incapacitating episodes having a total duration of at least 2 weeks during the past 12 months, and a 40 percent rating if his  adverse symptomatology includes incapacitating episodes having a total duration of at least 4 weeks during the past 12 months.  38 C.F.R. § 4.71a, Diagnostic Code 5243.  Diagnostic Code 5243 defines an incapacitating episode as one where the Veteran has physician prescribed bed rest.  Id.

At the September 2004 VA examination, the Veteran complained of low back pain with flare-ups once a day and pain radiating into his right foot.  He also complained that his low back pain prevented him from running.  As to his cervical spine, he complained of neck stiffness with flare-ups once or twice a month which cause lost range of motion.  He does not have radicular symptoms including lost strength in his upper extremities.  

On examination, the range of motion for the thoracolumbar spine taking into account his pain was flexion to 70 degrees, extension to 30 degrees, right tilt to 22 degrees, left tilt to 27 degrees, left rotation to 25 degrees, and right rotation to 25 degrees.  Reflexes in the knees were 2/5.  Straight leg raise testing was positive on the right side.  The thoracolumbar spine showed no evidence of spasms, but he had slight discomfort over the right S1 joint and sciatic notch.  Muscle strength was 5/5.  There was no muscle atrophy.  Cervical spine range of motion was flexion to 54 degrees, extension to 30 degrees, right tilt to 20 degrees, left tilt to 26 degrees, left rotation to 47 degrees, and right rotation to 47 degrees.  While the Veteran had increase stiffness during the range of motion studies, there was no significant pain.  No deep tendon reflexes deficits were noted in the upper extremities.

A November 2005 magnetic resonance imaging evaluation (MRI) of the lumbosacral spine showed degenerative joint disease, degenerative disc disease at L4-L5 and L5-S1, and disc herniations at L4-L5 and L5-S1.  A December 2005 cervical spine X-ray showed degenerative disc disease.  A January 2006 MRI of the cervical spine showed a slight impingement and stenosis at C4-C5 and C5-C6, a sick bulge at C4-C5, and a bone spur at C5-C6. 

At the December 2005 VA neurological/headaches examination, the examiner reported that motor examination revealed no weakness or atrophy as well as a normal tone.  Deep tendon reflexes were, bilaterally, 2.  His toes were down going bilaterally.  Sensory examination was normal to light touch, pin prick, and position.  However, he had reduced vibrations, bilaterally, up to the knees.  As to coordination, bilateral finger to noise and knee to heel were intact.

In January 2006, the VA treatment records show that the Veteran had a lumbar spine fusion with complications.  In this regard, the Board notes that a March 2006 VA treatment record, generated just two months after this failed lumbosacral spine fusion, reported that its range of motion was flexion to 10 degrees, extension to degree, lateral movement to 10 degrees, and rotation to 10 degrees.  

Subsequently, at the August 2006 VA orthopedic examination the examiner opined that the examination could not be performed because of the recent low back surgery, at the present time he had not obtained complete union of the fusion, and therefore an attempt to assess his permanent level of disability would be futile.

At the August 2006 VA neurological/headaches examination, the examiner reported that his motor examination revealed no weakness or atrophy as well as a normal tone.  Deep tendon reflexes were, bilaterally, 2.  His toes were down going bilaterally.  Sensory examination was normal to light touch, pin prick, and position as well as vibration.  As to coordination, bilateral finger to noise and knee to heel were intact.

At the August 2007 VA examination the Veteran complained of chronic low back pain which is worse since his surgery which pain is made worse by sitting, standing, bending, lying on his stomach or side, quick movements, etc.  At that time, however, he denied having any flare-ups.  The Veteran ambulated with a cane or walker and indicated wearing a back brace.  He walked with a slow antalgic gait and he considers himself unsteady even though he has not had any falls. He treats his pain with codeine which helps at times.  He can walk for 10 to 15 minutes/1 block before having to rest.  He will only drive in an emergency due to it causing increased back pain.  His wife helps him dress when his pain is really bad.  He can shower using a seat.  

On examination, the spine and limbs were symmetric without obvious curvature, his head was mid-line, he had stiff and slow spinal motion, his posture was erect, his gait was slow and antalgic and he had no unusual shoe wear pattern.  The range of motion of the thoracolumbar spine taking into account his pain as well as after three repetitions was flexion to 45 degrees, extension to 5 degrees, right lateral flexion to 5 degrees, left lateral flexion to 10 degrees, right rotation to 15 degrees, and left rotation to 10 degrees.  There was no muscle tightness, tenderness, or spasms on palpation.  It was also opined that there was no additional limitations in joint function.  

Neurological examination revealed decreased sensation to light touch over the left lateral lower extremity.  However, sensation was grossly intact to sharp/dull discrimination.  His strength was 4+/5 in both hamstrings and quads, -4/5 in both iliopsoas, and 5/5 in both EHL.  Deep tendon reflexes were 1+/4 in both patella and Achilles.  Straight leg raise testing was negative when sitting bilaterally.  The diagnosis was anterior lumbar fusion with likely pseuodarthrosis L4-L5 and L5-S1 and degenerative disc disease with no evidence of radiculopathy.

At the January 2011 VA lumbar spine examination, the Veteran complained of chronic low back pain exacerbated by prolonged sitting and moving.  He also complained that pain radiates to his left buttocks but not into either lower extremity.  The Veteran treats his symptoms with medication, a TENS unit, and a back brace. He walks using either a cane or walker.  He denied having flare-ups.  The Veteran does not experience any incapacitating episodes.  

On examination, the range of motion of the thoracolumbar spine taking into account his pain as well as after three repetitions was flexion to 40 degrees, extension to 10 degrees, right and left lateral flexion to 15 degrees, and right and left rotation to 15 degrees.  It was opined that weakness, lack of endurance, and incoordination are not factors.  He had spinal tenderness but no spasms or preserved spinal contour.  There was no ankylosis.  He was not in any acute distress.  He stood with some difficulty.  He had a decreased stride length and speed.  Straight leg raise testing was negative.  

Neurological examination revealed 2+ and symmetric deep tendon reflexes in the knees and 1+ and symmetric deep tendon reflexes in the ankles.  Sensation was preserved to light touch.  The muscle strength in the lower extremities was 4+/5.  It was opined that this low grade muscle weakness was caused by deconditioning and not a focal neurological deficit.  Muscle tone was normal and there was no calf or thigh muscle atrophy.  Lastly, it was opined that the Veteran is neurologically intact and does not have intervertebral disc syndrome.

Lastly, at the January 2011 VA cervical spine examination the Veteran complained of chronic daily neck pain that intermittently radiates to his left shoulder.  He denied having flare-ups.  The Veteran does not experience any incapacitating episodes.  He does not use a brace.  

On examination, the range of motion of the cervical spine taking into account his pain as well as after three repetitions was flexion to 30 degrees, extension to 30 degrees, right lateral flexion to 35 degrees, left lateral flexion to 30 degrees, right rotation to 65 degrees, and left rotation to 60 degrees.  Painful motion was noted by guarding.  It was opined that weakness, lack of endurance, and incoordination are not factors.  There was non-reproducible spinal tenderness, no muscle spasm, no trigger points, and Spurling's test was negative.  

Neurological examination revealed 1+ and symmetric deep tendon reflexes in the upper extremities.  Sensation was intact to light touch.  The muscle strength in the upper extremities was 4+/5.  It was opined that this low grade muscle weakness was caused by deconditioning and not a focal neurological deficit.  Muscle tone was normal and there was no muscle atrophy.  Lastly, it was opined that the Veteran is neurologically intact.

While a review of the record on appeal reveals the Veteran's periodic complaints and treatment for low back and cervical spine pain and/or lost motion nothing in these records show the adverse symptomatology due to these disabilities, including lost range of motion, is worse than what was reported at the above VA examinations.  S

Similarly, the Board notes that the Veteran treatment records contain conflicting opinions as to whether his low back disability causes radiculopathy.  However, nothing in these records show adverse symptomatology worst than what was reported in the above VA examinations.  Id.

a. The Low Back Disability from February 1, 2005, to January 1, 2007

As to a rating in excess of 10 percent for the low back disability from February 1, 2005, to January 1, 2007, under the General Rating Formula for Disease and Injuries of the Spine, the Board finds that even when considering functional limitations due to pain and the other factors identified in 38 C.F.R. §§ 4.40, 4.45, 4.59, Burton, supra, and DeLuca, supra, that the Veteran's functional losses do not equate to the criteria required for a rating in excess of 10 percent for his low back disability because the record shows that at its worst forward flexion of the thoracolumbar spine was 70 degrees (not 60 degrees or lees) and the combined range of motion of the thoracolumbar spine was 199 degrees (not 120 degrees or less).  38 C.F.R. §§ 4.2, 4.3, 4.7, 4.71a.  

In reaching the above conclusion, the Board has not overlooked the fact that a March 2006 VA treatment record reported that lumbosacral flexion was only 10 degrees and the combined range of motion of the thoracolumbar spine was 60 degrees.  However, the Board finds, as did the August 2006 VA examiner, that these range of motion studies coming so soon after the Veteran's January 2006 lumbosacral spine fusion are not a reliable indicator as to the severity of his low back disability during this time period.  See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when decision makers give an adequate statement of reasons and bases); Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches....  As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators. . .").

The Board also finds that the Veteran's functional losses do not equate to the criteria required for a 20 percent rating for his lumbar spine disability under the General Rating Formula for Disease and Injuries of the Spine because, while treatment records document problems with pain and the September 2004 VA examiner noted some discomfort, no healthcare professional opined that the Veteran had guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis.  See 38 U.S.C.A. § 4.71a; Also see Colvin, supra.

Consequently, the Board finds that a rating in excess of 10 percent is not warranted for the Veteran's service-connected low back disability at all times from February 1, 2005, to January 1, 2007, under the General Rating Formula for Disease and Injuries of the Spine.  See 38 U.S.C.A. § 4.71a; Also see Fenderson, supra.

As to rating the Veteran's low back disability under the Formula for Rating Intervertebral Disc Syndrome, while the Veteran and his representative claim that the appellant's adverse symptomatology causes him difficulty, there is no competent and credible evidence in the record that it required physician prescribed bed rest for at least two weeks at any time during this time period.  38 C.F.R. § 4.71a, Diagnostic Code 5243; Also see Colvin, supra.  Moreover, as lay persons, neither the Veteran nor his representative can provide such a diagnosis.  See Davidson, supra.  

Consequently, the Board finds that a rating in excess of 10 percent is not warranted for the Veteran's service-connected low back disability at all times from February 1, 2005, to January 1, 2007, under the Formula for Rating Intervertebral Disc Syndrome.  38 C.F.R. § 4.71a, Diagnostic Code 5243; Also see Fenderson, supra.

b. The Low Back Disability from January 1, 2007

As to a rating in excess of 20 percent for the low back disability from January 1, 2007, under the General Rating Formula for Disease and Injuries of the Spine, the Board finds that his functional losses do not equate to the criteria required for a higher 40 percent rating because the record is negative for ankylosis of the entire thoracolumbar spine.  In fact, the January 2011 VA examiner opined that it was not ankylosed.  In the absence of ankylosis, the Board may not rate his service-connected low back disability as ankylosis.  Johnston, supra.  Consequently, a higher evaluation is not warranted for the Veteran's service-connected low back disability under the General Rating Formula for Disease and Injuries of the Spine.  See 38 U.S.C.A. § 4.71a.  This is true at all times from January 1, 2007, and therefore further consideration of staged ratings on this basis is also not warranted.  Fenderson, supra.
 
As to rating the Veteran's low back disability under the Formula for Rating Intervertebral Disc Syndrome, while the Veteran and his representative continue to claim that the appellant's adverse symptomatology causes him difficulty, there is no competent and credible evidence in the record of it requiring physician prescribed bed rest for at least 4 weeks at any time during this time period.  38 C.F.R. § 4.71a, Diagnostic Code 5243.  In fact, at the November 2011 VA examination the examiner specifically reported that it did not.  Consequently, the Board finds that a higher evaluation is not warranted for his service-connected low back disability under the Formula for Rating Intervertebral Disc Syndrome.  Id.  This is true at all times from January 1, 2007, and therefore further consideration of staged ratings on this basis is also not warranted.  Fenderson, supra.

c. The Cervical Spine Disability from February 1, 2005

As to a rating in excess of 10 percent for the cervical spine disability from February 1, 2005, under the General Rating Formula for Disease and Injuries of the Spine, the Board finds that when considering functional limitations due to pain and the other factors identified in 38 C.F.R. §§ 4.40, 4.45, 4.59, Burton, supra, and DeLuca, supra, that the Veteran's functional losses equate to the criteria required for a 20 percent rating for his cervical spine disability because at the January 2011 VA examination forward flexion of the cervical spine was 30 degrees.  38 C.F.R. § 4.71a.

In this regard, the Board finds that the Veteran's adverse symptomatology was, in substance, the same throughout the pendency of the appeal.  The Board also finds that the Veteran should not be penalized because the RO failed to provide him with another VA examination until almost seven years after his September 2004 VA examination.  Accordingly, the Board finds that the Veteran has met the criteria for a 20 percent rating for his cervical spine disability at all times from February 1, 2005.  Fenderson, supra.

As to a rating in excess of 20 percent for the cervical spine disability from February 1, 2005, under the General Rating Formula for Disease and Injuries of the Spine, the Board finds that even when considering functional limitations due to pain and the other factors identified in 38 C.F.R. §§ 4.40, 4.45, 4.59, Burton, supra, and DeLuca, supra, that his functional losses do not equate to the criteria required for a higher rating because at its worst flexion was 30 degrees and not 15 degrees or less.  Consequently, a higher evaluation is not warranted for the Veteran's service-connected cervical spine disability under the General Rating Formula for Disease and Injuries of the Spine.  See 38 U.S.C.A. § 4.71a.  This is true at all times from February 1, 2005, and therefore further consideration of staged ratings on this basis is also not warranted.  Fenderson, supra.

Also as to a rating in excess of 20 percent for the cervical spine disability from February 1, 2005, under the General Rating Formula for Disease and Injuries of the Spine, the record is negative for ankylosis of the cervical spine.  In fact, the January 2011 VA examiner opined that it was not ankylosed.  In the absence of ankylosis, the Board may not rate his service-connected cervical spine disability as ankylosis.  Johnston, supra.  Consequently, a higher evaluation is not warranted for the Veteran's service-connected cervical spine disability under the General Rating Formula for Disease and Injuries of the Spine.  See 38 U.S.C.A. § 4.71a.  This is true at all times from February 1, 2005, and therefore further consideration of staged ratings on this basis is also not warranted.  Fenderson, supra.

As to rating the Veteran's cervical spine disability under the Formula for Rating Intervertebral Disc Syndrome, while the Veteran and his representative continue to claim that the appellant's adverse symptomatology causes him difficulty, there is no competent and credible evidence in the record of it requiring physician prescribed bed rest for at least 4 weeks at any time during this time period.  38 C.F.R. § 4.71a, Diagnostic Code 5243.  In fact, at the November 2011 VA examination the examiner specifically reported that it did not.  Consequently, the Board finds that a higher evaluation is not warranted for his service-connected cervical spine disability under the Formula for Rating Intervertebral Disc Syndrome.  Id.  This is true at all times from February 1, 2005, and therefore further consideration of staged ratings on this basis is also not warranted.  Fenderson, supra.

Radiculopathy

Given the scope of the Veteran's service connected spine disabilities, the argument made by the claimant's representative, the Court's holding in Esteban, supra, and Note 1 to 38 C.F.R. § 4.71a that allows the claimant to receive separate compensable ratings for adverse neurological symptomatology associated with his service connected disabilities, the Board will next consider if he meets the criteria for a separate compensable rating for radiculopathy of the lumbar or cervical spine at any time during the pendency of the appeal. 

In this regard, the Board notes that 38 C.F.R. § 4.124a, Diagnostic Code 8516 provides a 10 percent rating for mild incomplete paralysis of the ulnar nerve in either the major or minor upper extremity.

Similarly, 38 C.F.R. § 4.124a, Diagnostic Code 8520 provides a 10 percent rating for mild incomplete paralysis of the sciatic nerve in either lower extremity.

38 C.F.R. § 4.124a defines the term "incomplete paralysis" as indicating a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration.  When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 

38 C.F.R. § 4.123 provides that neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis.  The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 

38 C.F.R. § 4.124 provides that neuralgia, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis.  Tic douloureux, or trifacial neuralgia, may be rated up to complete paralysis of the affected nerve. 

As to a separate compensable evaluation for radiculopathy caused by his service connected lumbar spine disability, treatment records and VA examinations document the Veteran's complaints of pain radiating into his buttock and/or his lower extremities.  

As to objective evidence as to the severity of this alleged radiculopathy, the September 2004 VA examiner reported that the reflexes in the knees were 2/5 and straight leg raising was positive on the right side.  However, he also reported that muscle strength was 5/5 and there was no muscle atrophy.  

At the December 2005 VA neurological examination, the Veteran had reduced vibrations, bilaterally, up to the knees.  However, the examiner also reported that his motor examination revealed no weakness or atrophy as well as a normal tone, deep tendon reflexes were, bilaterally, 2, his toes were down going bilaterally, and sensory examination was normal to light touch, pin prick, and position.  

At the August 2006 VA neurological examination, sensory examination was normal to light touch, pin prick, and position as well as vibration; motor examination revealed no weakness or atrophy as well as a normal tone; deep tendon reflexes were, bilaterally, 2; and coordination was intact.

However, at the August 2007 VA examination the Veteran had decreased sensation to light touch over the left lateral lower extremity; strength was 4+/5 in both hamstrings and quads, -4/5 in both iliopsoas, but /5 in both EHL; and deep tendon reflexes were 1+/4 in both patella and Achilles.  But, sensation was grossly intact to sharp/dull discrimination and the examiner opined that there was no evidence of radiculopathy despite the above adverse symptomatology.

Similarly, at the January 2011 VA lumbar spine examination, the Veteran had 1+ and symmetric deep tendon reflexes in the ankles and 2+ and symmetric deep tendon reflexes in the knees, but sensation was preserved to light touch, muscle tone was normal, there was no calf or thigh muscle atrophy, and while muscle strength in the lower extremities was 4+/5 it was opined that this low grade muscle weakness was not caused by a focal neurological deficit.  Lastly, it was opined that the Veteran is neurologically intact and does not have intervertebral disc syndrome.

In summary, the above examinations have revealed objective evidence of problems with reduced reflexes and muscle strength in his lower extremity as well as, on occasion, reduced vibration sense.  However, the examinations were also uniform in not finding loose of muscle tone or atrophy in the lower extremities.  Moreover, the August 2007 VA examiner opined that there was no evidence of radiculopathy despite the above adverse symptomatology.  Similarly, the January 2011 VA examiner attributed the Veteran's adverse symptomatology to non-neurological causes and opined that he is neurologically intact.  Accordingly, the Board finds that the most persuasive evidence of record shows that his documented adverse symptomatology is not caused by radiculopathy due to his service connected low back disability.  See Colvin, supra.  

Therefore, the Board finds that the adverse symptomatology attributable to the service connected low back disability do not equate to at moderately incomplete paralysis of the sciatic nerve in either lower extremity.  38 C.F.R. § 4.124a.  The Board therefore finds that a separate compensable rating for adverse neurological symptomatology caused by the claimant's service connected low back disability is not warranted.  This is true for the entire appeal period and therefore consideration of staged ratings is not warranted.  Fenderson, supra.

As to a separate compensable evaluation for any radiculopathy caused by his service connected cervical spine disability, at the most recent VA examination the Veteran complained of pain radiating into his left shoulder.  As to objective evidence as to the severity of this alleged radiculopathy, at the February 2004 VA examination it was opined that he did not have any deep tendon reflex deficits in the upper extremities.  Likewise, at the August 2006 VA neurological examination coordination was intact.  Similarly, at January 2011 VA examination while the Veteran only had 1+ deep tendon reflexes in the upper extremities, they were symmetric.  Moreover, while muscle strength in the upper extremities was 4+/5, it was opined that this low grade muscle weakness was not caused by a focal neurological deficit.  Furthermore, sensation was intact to light touch, muscle tone was normal, there was no muscle atrophy, and it was opined that the Veteran is neurologically intact.

Given the above record, which is negative for any objective evidence of adverse neurological symptomatology except for 1+ deep tendon reflexes and which contains an uncontradicted VA opinion that the Veteran is neurologically intact, the Board finds that the adverse symptomatology attributable to the service connected cervical spine disability do not equate to at moderately incomplete paralysis of the ulnar nerve in either upper extremity.  38 C.F.R. § 4.124a.  Therefore, the Board finds that a separate compensable rating for adverse neurological symptomatology caused by the claimant's service connected cervical spine disability is not warranted.  This is true for the entire appeal period and therefore consideration of staged ratings is not warranted.  Fenderson, supra.

Other Lumbar and Cervical Spine Concerns

Lastly, the Board notes that each of the ways by which the thoracolumbar and cervical spines are ratable, other than some of those described in 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2011), contemplates limitation of motion.  Also see VAOPGCPREC 36-97; 63 Fed. Reg. 31262 (1998).  Therefore, assigning separate ratings on the basis of both a strain and other symptoms, such as those set forth in Diagnostic Code 5242, would be inappropriate.  38 C.F.R. § 4.14 (2012).  

Migraine Headaches 

The February 2005 rating decision granted service connection for migraine headaches and the December 2006 rating decision assigned a 30 percent rating effective from February 1, 2005, under 38 C.F.R. § 4.124a, Diagnostic Code 8100.  

Under 38 C.F.R. § 4.124a, Diagnostic Code 8100, migraine headaches with characteristic prostrating attacks averaging one in two months over the last several months warrants a 10 percent disability rating; with characteristic prostrating attacks occurring on an average once a month over last several months warrants a 30 percent disability rating; and with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability warrants a 50 percent disability rating.

At the September 2004 VA examination the Veteran complained of having significant headaches daily lasting an average of two hours in the frontal temple area and extending to the retrobulbar area since 2002 that are usually set-off by fluorescent lights with photosensitivity and sonosensitivity.  He does not have nausea.  The intensity level of the headaches rises to an 8/10 during their peak and is accompanied by left eye burning.

At the first December 2005 VA headaches examination, the Veteran continued to complain of frontal headaches that are throbbing and associated with photophobia and phonophobia as well as red spots before his eyes.  He has headaches two times a day which last one to two hours and are 10/10 in pain.  The Veteran also claims that the headaches are significantly interfering with his activities of daily living but he is not working due to musculoskeletal problems.  

At the second December 2005 VA headaches examination, the Veteran further complained that his daily frontal headaches radiate towards his scalp, are triggered by loud noise and crowds, last several hours, and are accompanied by nausea, dizziness, blurred vision, and occasional forehead tingling and numbness but no vomiting.  

At the January 2011 VA neurological/headaches examination, the Veteran complained of frontal headaches occasional two to three times a day exacerbated by noise.  He also complained that they significantly interfere with his activities of daily living.  

While a review of the record on appeal reveals the Veteran's periodic complaints and treatment for headaches, nothing in these records show the adverse symptomatology due to this disability that is worse than what was reported at the above VA examinations.  

With the above criteria in mind, the Board finds that the evidence relating to the Veteran's headaches is significant as much for what it does not show as what it does.  In this regard, the Veteran and his representative claim that the appellate has, in substance, very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.  However, the Veteran's treatment records are negative for a medical opinion that his migraine headaches cause severe economic inadaptability.  Likewise, neither the September 2004, December 2005, or January 2011 VA examiner has opined that his migraine headaches cause severe economic inadaptability.  Moreover, while he Veteran is competent and credible to report on what he sees and feels, such as headache pain, and others are competent to report on what they see, the Board finds that they are not credible to provide an opinion to whether a headache is productive of severe economic inadaptability because such an opinion requires medical training which neither the claimant or his representative have. 

Therefore, based on these objective findings the Board finds that the Veteran's migraine headaches do not meet the criteria for a rating in excess of 30 percent.  See 38 C.F.R. § 4.124a, Diagnostic Code 8100.  This is true at all times during the pendency of the appeal and therefore consideration of staged ratings is not warranted.

Bilateral Hearing Loss

The February 2005 rating decision granted service connection for bilateral hearing loss and assigned a non compensable rating under 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100, effective from February 1, 2005.

Under the law and regulations that have been in effect since before the Veteran filed his claim for a compensable rating, the rating assigned for hearing loss is determined by a mechanical application of the rating schedule, which is grounded on numeric designations assigned to audiometric examination results.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).

Specifically, evaluations of hearing impairment range from 0 to 100 percent based on organic impairment of hearing acuity.  Auditory acuity is gauged by examining the results of controlled speech discrimination tests, together with the results of puretone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hz).  To evaluate the degree of disability, the rating schedule establishes 11 auditory acuity levels ranging from level I, for essentially normal acuity, through level XI, for profound deafness.  38 C.F.R. § 4.85 et. seq.  Tables VI and VII as set forth following 38 C.F.R. § 4.85 are used to calculate the rating to be assigned.  38 C.F.R. § 4.85. 

Under 38 C.F.R. § 4.86, when the puretone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral.  38 C.F.R. § 4.86(a).  Additionally, when the puretone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral.  Thereafter, that numeral will be elevated to the next higher Roman numeral.  38 C.F.R. § 4.86(b).

At the August 2004 VA examination, audiometric testing showed puretone thresholds of 10, 15, 30, and 50 decibels in the right ear and puretone thresholds of 15, 25, 45, and 55 decibels in the left ear, at 1000, 2000, 3000, and 4000 Hertz, respectively.  The averages were 26 decibels in the right ear and 35 decibels in the left ear.  Speech recognition ability was 100 percent in the right ear and 100 percent in the left ear.

Thereafter, audiometric testing conducted at the December 2005 VA examination showed puretone thresholds of 15, 20, 40, and 50 decibels in the right ear and puretone thresholds of 15, 20, 45, and 55 decibels in the left ear, at 1000, 2000, 3000, and 4000 Hertz, respectively.  The averages were 33 decibels in the right ear and 33 decibels in the left ear.  Speech recognition ability was 96 percent in the right ear and 96 percent in the left ear.  It was also opined that his hearing loss was not severe enough to interfere with his obtaining or maintaining employment.

Subsequently, audiometric testing conducted at the August 2006 VA examination showed puretone thresholds 15, 25, 45, and 50 decibels in the right ear and puretone thresholds of 15, 25, 45, and 55 decibels in the left ear, at 1000, 2000, 3000, and 4000 Hertz, respectively.  The averages were 34 decibels in the right ear and 35 decibels in the left ear.  Speech recognition ability was 94 percent in the right ear and 98 percent in the left ear.  It was opined that his hearing loss would not prevent gainful employment.

Lastly, audiometric testing conducted at the January 2011 VA examination showed puretone thresholds 20, 30, 55, and 55 decibels in the right ear and puretone thresholds of 25, 35, 55, and 60 decibels in the left ear, at 1000, 2000, 3000, and 4000 Hertz, respectively.  The averages were 40 decibels in the right ear and 43 decibels in the left ear.  Speech recognition ability was 86 percent in the right ear and 84 percent in the left ear. 

With application of the above VA test results to 38 C.F.R. § 4.85, Table VI, Table VII, the Board finds that the Veteran's right ear hearing loss, at its very worst, is assigned a numeric designation of I and the left ear hearing loss, at its very worst, is assigned a numeric designation of II.  These test scores result in the appellant's bilateral hearing loss being rated as noncompensably disabling under Diagnostic Code 6100.  See 38 C.F.R. § 4.85.  Therefore, a compensable evaluation is not warranted under Table VII.  Id.  This is true at all times during the pendency of the appeal and therefore consideration of staged ratings is not warranted.  Fenderson, supra.

Similarly, as is apparent from the results set out above, the Veteran did not have thresholds of 55 decibels or more at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hz).  Consequently, 38 C.F.R. § 4.86(a) is not for application.  Likewise, the Veteran did not have thresholds of 30 decibels or less at 1,000 Hz and 70 decibels or more at 2,000 Hz.  Consequently, 38 C.F.R. § 4.86(b) is not for application.  Moreover, no examiner has indicated that the use of speech discrimination scores is inappropriate because of language difficulties.  38 C.F.R. § 4.85(c).  Therefore, a compensable rating is not warranted under these rating criteria.  This is true at all times during the pendency of the appeal and therefore consideration of staged ratings is not warranted.  

Other Considerations

As to the Veteran's claim that his disorders are worse than rated, under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

With respect to the first prong of Thun, as to all the rating claims except the low back disability, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected disabilities is inadequate.  A comparison between the level of severity and symptomatology of the Veteran's conditions with the established criteria shows that the rating criteria reasonably describe the Veteran's disability levels and symptomatology.  

The Board further observes that, even if the available schedular evaluations for the disabilities were inadequate (which it manifestly is not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms."  There simply is no objective evidence that any of his disabilities, except for his low back disability, acting alone, has resulted in frequent periods of hospitalization or in marked interference with the Veteran's employment.  See Bagwell v. Brown, 9 Vet. App. 337 (1996).  Therefore, the Board finds that the evidence does not demonstrate an exceptional or unusual clinical picture beyond that contemplated by the rating criteria.

In short, there is nothing in the record to indicate that the service-connected disabilities other than his low back disability cause impairment with employment over and above that which is contemplated in the assigned schedular ratings.  See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired).  The Board, therefore, has determined that referral of these issues for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) (2012) is not warranted at any time during the pendency of the appeal (other than for the low back, which is discussed in the remand portion of this opinion). 

As to the various lay statements found in the record, while the Veteran is competent and credible to report on what he can see and feel and others are competent and credible to report on what they can see, the Board finds more competent the opinions provided by the medical experts at the VA examinations as to the severity of his service-connected disabilities than these lay claims.  See Davidson, supra; Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). 

In reaching the above conclusions, the Board also considered the doctrine of reasonable doubt.  38 U.S.C.A. § 5107(b).  However, because the most competent and credible is against the Veteran's claims to the extent outlined above, the doctrine is not for application.  See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  



ORDER

Service connection for TBI, manifested by memory loss, is granted.

An initial 10 percent rating for DJD of the right first metatarsal is granted at all times during the pendency of the appeal subject to the laws and regulations governing monetary awards.  

Higher initial ratings for a right knee disability, status post meniscectomy, are denied at all times during the pendency of the appeal.  

An initial rating in excess of 10 percent for left knee laxity, status post meniscectomy, is denied at all times during the pendency of the appeal.  

An initial rating in excess of 10 percent for right shoulder impingement syndrome is denied at all times during the pendency of the appeal.  

An initial rating in excess of 10 percent for a right wrist sprain with degenerative disease of the right hand is denied at all times during the pendency of the appeal.  

An initial rating in excess of 10 percent for an inferior fracture of the right pelvis is denied at all times during the pendency of the appeal.  

An initial rating in excess of 10 percent for residuals of recurrent right ankle sprains is denied at all times during the pendency of the appeal.  

Higher initial ratings for lumbar spine degenerative disc disease with intervertebral disc syndrome and right lower extremity radiculopathy, including a separate rating for radiculopathy, are denied at all times during the pendency of the appeal.  

An initial rating of 20 percent for cervical spine DDD is granted at all times during the pendency of the appeal subject to the laws and regulations governing monetary awards.

An initial rating in excess of 30 percent for migraine headaches is denied at all times during the pendency of the appeal.

An initial compensable rating for bilateral hearing loss is denied at all times during the pendency of the appeal.


REMAND

As to the claim for an initial compensable rating for a right hip cyst, this issue was remanded in November 2010 to provide the Veteran with a VA examination to ascertain the current severity of the disability.  However, while the post-remand record shows that the Veteran was afforded VA examinations in November 2011 and April 2012, none of these examiners conducted a comprehensive examination of the cyst so as to allow the Board to rate it under 38 C.F.R. § 4.118, Diagnostic Code 7819 (2008) (provides that benign skin neoplasms are rated under  Diagnostic Code 7800 as disfigurement of the head, face or neck or Diagnostic Codes 7801, 7802, 7803, 7804, or 7805 as a scar or based on impairment of function).  Therefore, the Board finds that a remand for the previously ordered VA examination is needed.  See Stegall v. West, 11 Vet. App. 268 (1998) (holding that where the remand orders of the Board are not satisfied the Board itself errs in failing to ensure compliance).  

In this regard, the Board notes that the applicable rating criteria for skin disorders, found at 38 C.F.R. § 4.118, were amended in August 2002 (see 67 Fed. Reg. 49490-99 (July 31, 2002)) and again in October 2008 (see 73 Fed. Reg. 54708 (September 23, 2008)).  The October 2008 revisions are applicable to claims for benefits received by the VA on or after October 23, 2008.  Id.  In this case, the Veteran filed his claim in August 2004.  Therefore, when rating this disability the RO/AMC should be mindful to only apply the post-2002 and pre-October 2008 version of the schedular criteria.  

As explained in the introduction above, the record raises a claim for extra-schedular ratings in excess of 10 percent from February 1, 2005, and 20 percent from January 1, 2007, for the low back disability.  See 38 C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111 (2008).  Accordingly, this issue is remanded for the AOJ to obtain an opinion from the Director, Compensation and Pension, as to whether the Veteran is entitled to an extra-schedular rating for his service connected low back disability at any time from February 1, 2005.

Since the record shows that the Veteran receives ongoing treatment for his low back disability from the Hines VA Medical Center, while the appeal is in remand status his contemporaneous treatment records from this facility should be obtained and associated with the claims file.  38 U.S.C.A. § 5103A(b); Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA adjudicators are deemed to have constructive notice of VA treatment records).

Accordingly, this issue is REMANDED to the RO/AMC for the following actions:

1.  Obtain and associate with the claims file the Veteran's contemporaneous treatment records from the Hines VA Medical Center.  

2.  After undertaking the above development, provide the Veteran with a dermatological examination to ascertain the current severity of the Veteran's residuals of a right hip cyst.  The entire claims file and any pertinent evidence in Virtual VA that is not contained in the claims file must be made available to and reviewed by the examiner.  

After a review of the record on appeal and an examination of the Veteran, the examiner must provide a description of any and all scar(s) found as a residual of the right hip cyst extraction, to include size in square inches.  The examiner is asked to also provide answers to the following questions:

a.  Is(are) the scar(s) deep or cause limited motion in an area or areas exceeding 6 square inches, 12 square inches, 72 square inches, or 144 square inches ?.

b.  Is(are) the scar(s) superficial and cover 144 square inches?

c.  Is(are) the scar(s) superficial and unstable?

d.  Is(are) the scar(s) superficial and painful?

e.  Does(do) the scar(s) cause additional lost motion of the hip?

A complete rationale for each answer should be provided by the examiner and the examiner should reconcile the opinion with any contrary evidence in the record.

3.  Obtain an opinion from the Director, Compensation and Pension, as to whether the Veteran is entitled to an extra-schedular rating for his service connected low back disability at any time from February 1, 2005. 

4.  Then, readjudicate the claims.  As to the claim for a higher evaluation for a cyst, the RO/AMC should be mindful to only apply the post-2002 and pre-October 2008 version of the schedular criteria (38 C.F.R. § 4.118, Diagnostic Code 7801 to 7819 (2007)).   As to the claim for a higher evaluation for a cyst, the RO/AMC should also consider staged ratings.  If any benefit sought on appeal remains denied, the Veteran and his representative should be provided a Supplemental Statement of the Case which includes citation to all evidence added to the claims file since the last Supplemental Statement of the Case was issued in May 2012 as well as citation to the laws and regulations governing extra-schedular ratings.  Allow a reasonable period of time for the Veteran and his representative to respond.  Then, return the appeal to the Board.

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

The claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West  2002 and Supp. 2012).



______________________________________________
SHEREEN M. MARCUS
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs