Citation Nr: 1327107	
Decision Date: 08/23/13    Archive Date: 08/29/13

DOCKET NO.  06-24 194	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUES

1.  Entitlement to an initial rating in excess of 10 percent for right knee degenerative arthrosis status post partial lateral meniscectomy.

2.  Entitlement to an initial rating in excess of 10 percent for left knee degenerative arthrosis.

3.  Entitlement to a rating in excess of 30 percent for cervical spine degenerative arthritis, including C5-C6 radiculopathy of the left side of the neck and left shoulder and torso.

4.  Entitlement to a rating in excess of 20 percent prior to January 11, 2010, and in excess of 40 percent from January 11, 2010, for lumbar spine degenerative arthritis.

5.  Entitlement to a compensable rating prior to August 24, 2010, in excess of 10 percent from October 1, 2010, to February 2, 2013, and in excess of 50 percent from February 2, 2013, for bilateral pes cavus.

6.  Entitlement to a compensable rating for bilateral hearing loss.
7.  Entitlement to a rating in excess of 10 percent for right lower extremity status post operative varicose veins. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

L. Barstow, Counsel


INTRODUCTION

The Veteran had active military service from April 1960 to October 1960 and from October 1963 to April 1984.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision of the VA Regional Office (RO) in Columbia, South Carolina.  In October 2006, the RO assigned a separate 10 percent evaluation for right knee arthrosis and a separate 10 percent evaluation for left knee arthrosis.  In May 2011, the RO increased the evaluation for degenerative arthritis of the lumbosacral spine to 40 percent disabling, effective January 11, 2010.  In June 2013, the Appeals Management Center (AMC) assigned temporary total evaluations for the Veteran's bilateral pes cavus following surgery on August 24, 2010, and for the Veteran's right knee following surgery on July 10, 2012.  For the Veteran's bilateral pes cavus, a 10 percent evaluation was assigned effective October 1, 2010, and a 50 percent evaluation was assigned effective February 2, 2013.  For the Veteran's right knee, the previously assigned 10 percent evaluation was continued from September 1, 2012.  The Board notes that since the increases and assignment of separate evaluations did not constitute a full grant of the benefits sought, the increased rating issues remain in appellate status.  AB v. Brown, 6 Vet. App. 35, 39 (1993).

In June 2008, the Veteran testified at a hearing before the undersigned Veterans Law Judge.  A transcript of the hearing has been associated with the claims file.

The case was remanded in December 2009 and October 2012 to obtain additional treatment records and afford the Veteran VA examinations.  Review of the record indicates substantial compliance.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).

The issues of service connection for a skin disorder and peripheral neuropathy of the upper extremities were granted in a February 2013 rating decision.  As the Veteran has not disagreed with the disability evaluations and/or effective dates assigned, the Board concludes that these issues are no longer before it.


FINDINGS OF FACT

1.  The right knee degenerative arthrosis status post partial lateral meniscectomy does not limit flexion to 30 degrees and does not limit extension to 10 degrees.

2.  The left knee degenerative arthrosis does not limit flexion to 45 degrees and does not limit extension to 10 degrees.

3.  There is no evidence of ankylosis of the bilateral knees; dislocated semilunar cartilage with frequent episodes of locking, pain and effusion into the joint; impairment of the tibia and fibula; genu recurvatum, subluxation or instability.

4.  The cervical spine degenerative arthritis, including C5-C6 radiculopathy of the left side of the neck and left shoulder and torso has not resulted in ankylosis and does not have associated objective neurological abnormalities other than the service-connected bilateral upper extremity radiculopathy for which separate ratings can be granted.

5.  Prior to January 11, 2010, the lumbar spine degenerative arthritis did not limit forward flexion to 30 degrees or less and had not resulted in ankylosis; and did not have associated objective neurological abnormalities for which separate ratings could be granted.  

6.  Since January 11, 2010, the lumbar spine degenerative arthritis has not resulted in ankylosis and does not have associated objective neurological abnormalities for which separate ratings can be granted.  

7.  Prior to February 2, 2013, the bilateral pes cavus resulted in moderate disability in each foot. 

8.  Since February 2, 2013, the bilateral pes cavus has resulted in marked contraction of plantar fascia with dropped forefoot and very painful callosities.

9.  Audiometric testing reveals no worse than Level II hearing acuity in the Veteran's right ear and Level II hearing acuity in his left ear.

10.  The right lower extremity status post operative varicose veins has not resulted in persistent edema, incompletely relieved by elevation of extremity, with or without beginning stasis pigmentation or eczema.  


CONCLUSIONS OF LAW

1.  The criteria for a rating in excess of 10 percent for right knee degenerative arthrosis status post partial lateral meniscectomy have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.71a Diagnostic Codes (DCs) 5003, 5010, 5260, 5261 (2012).

2.  The criteria for a rating in excess of 10 percent for left knee degenerative arthrosis have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.71a Diagnostic Codes (DCs) 5003, 5010, 5260, 5261 (2012).

3.  The criteria for a rating in excess of 30 percent for cervical spine degenerative arthritis, including C5-C6 radiculopathy of the left side of the neck and left shoulder and torso, have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.71a Diagnostic Code (DC) 5242 (2012).

4.  Prior to January 11, 2010, the criteria for a rating in excess of 20 percent for lumbar spine degenerative arthritis have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.71a Diagnostic Codes (DC) 5237 (2012).

5.  Since January 11, 2010, the criteria for a rating in excess of 40 percent for lumbar spine degenerative arthritis have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.71a Diagnostic Code (DC) 5237 (2012).

6.  Prior to February 2, 2013, the criteria for separate 10 percent ratings for bilateral pes cavus for each foot have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.71a Diagnostic Code (DC) 5284 (2012).

7.  Since February 2, 2013, the criteria for a rating in excess of 50 percent for bilateral pes cavus have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.71a Diagnostic Code (DC) 5278 (2012).

89.  The criteria for a compensable rating for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.85, 4.86 Diagnostic Code (DC) 6100 (2012).
9.  The criteria for a rating in excess of 10 percent for right lower extremity status post operative varicose veins have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.104 Diagnostic Code (DC) 7120 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  VA's Duties to Notify and Assist

The VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 & 3.326(a) (2012).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  The notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  Such notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration.  Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing his or her entitlement to increased compensation.  However, the notice required by section 5103(a) need not be specific to the particular veteran's circumstances; that is, VA need not notify a veteran of the specific diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular veteran's daily life.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  

The Veteran was notified in letters dated in September 2004 and May 2008 regarding the type of evidence necessary to establish his claims.  He was instructed that to show entitlement to an increased evaluation for his service-connected disabilities, the evidence must show that the disability has gotten worse.  The Veteran was notified of what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf.  In addition, a March 2006 letter as well as the May 2008 letter notified the Veteran of the criteria for assigning a disability rating and an effective date.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

In addition, the May 2008 letter informed the Veteran that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration.  

The Board notes that the Veteran's claim for higher initial ratings for his bilateral knees arises from his disagreement with the initial rating following the grant of service connection.  Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  Regardless, the March 2006 and May 2008 2010 letters informed the Veteran of the criteria for assigning an effective date.  See Dingess/Hartman, 19 Vet. App. 473.  

Regarding VA's duty to assist, VA obtained the Veteran's service treatment records (STRs), post-service medical records, and also secured examinations in furtherance of his claims.  Pertinent VA examinations were obtained in December 2004, May 2006, June 2006, February 2010 and February 2013.  38 C.F.R. § 3.159(c)(4).  The VA examinations obtained in this case are sufficient, as the examiners conducted complete examinations, recorded all findings considered relevant under the applicable law and regulations, and offered well supported opinions based on consideration of the full history of the disorders.  The Board finds that VA's duty to assist the Veteran with respect to obtaining a VA examination concerning the issues adjudicated herein has been met.  38 C.F.R. § 3.159(c)(4). 

II.  Analysis

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities.  38 C.F.R. Part 4.  The Board determines the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10.  Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings.  Id.  

A distinction must be made between a veteran's dissatisfaction with original ratings and dissatisfaction with determinations on later filed claims for increased ratings.  See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999).  Where there is a question as to which of two ratings should be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  

In determining the degree of limitation of motion, several regulatory provisions are taken into consideration:  the provisions of 38 C.F.R. § 4.40 concerning lack of normal endurance, functional loss due to pain, and pain on use and during flare-ups; the provisions of 38 C.F.R. § 4.45 concerning weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 concerning the effects of the disability on the veteran's ordinary activity.  See DeLuca v. Brown, 8 Vet. App. 202 (1995).  The evaluation of the same disability under various diagnoses is to be avoided.  38 C.F.R. § 4.14.  Here, as noted in the discussion below, the effects of pain on use, functional loss, and incoordination were taken into account in assessing the range of motion of the Veteran's service-connected joint disabilities.

The United States Court of Appeals for Veterans Claims (Court) has held that staged ratings are appropriate for initial rating and increased rating claims when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App 505 (2007).  

	1.  Bilateral Knees

In this case, the Veteran has been diagnosed with right knee degenerative arthrosis status post partial lateral meniscectomy and left knee degenerative arthrosis.  These service-connected disabilities are both currently rated as 10 percent disabling under 38 C.F.R. § 4.71a, DC 5010-5260, with the exception of a temporary total evaluation for the right knee from July 10, 2012, to September 1, 2012, following surgery.  DC 5010 evaluates impairment from arthritis due to trauma that is substantiated by X-ray findings, while DC 5260 evaluates limitation of flexion of the knee.  38 C.F.R. § 4.71a, DCs 5010, 5260 (2012).

DC 5010 calls for the disability to be rated as degenerative arthritis.  Degenerative arthritis is evaluated under 38 C.F.R. § 4.71a, DC 5003.  Pursuant to DC 5003, degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.  When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by the limitation of motion, to be combined, not added under Diagnostic Code 5003.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  In the absence of limitation of motion, involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations shall be rated as 20 percent disabling, and involvement of two or more major joints or two or more minor joint groups without occasional incapacitating exacerbations shall be rated as 10 percent disabling.  The 20 percent and 10 percent ratings based on X-ray findings without limitation of motion will not be combined with ratings based on limitation of motion.  38 C.F.R. § 4.71a, DC 5003 (2012).  The knee is considered a major joint.  38 C.F.R. § 4.45(f) (2012).

Limitation of motion of the knee is evaluated under DC 5260, which evaluates limitation of flexion and DC 5261, which evaluates limitation of extension.  Full range of motion of the knee is flexion to 140 degrees and extension to zero degrees.  38 C.F.R. § 4.71a, Plate II (2012).

Specifically, pursuant to DC 5260, a 10 percent evaluation is warranted when flexion is limited to 45 degrees.  38 C.F.R. § 4.71a, DC 5260.  A 20 percent evaluation is warranted when flexion is limited to 30 degrees.  Id.  

Pursuant to DC 5261, a 10 percent evaluation is warranted when extension is limited to 10 degrees.  38 C.F.R. § 4.71a, DC 5261.  A 20 percent evaluation is warranted when extension is limited to 15 degrees.  Id. 

VA Office of General Counsel has provided guidance concerning increased rating claims for knee disorders.  Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of, or overlapping with, the symptomatology" of the other condition.  See Esteban v. Brown, 6 Vet. App. 259, 262 (1994).  

The General Counsel noted in VAOPGCPREC 9-98 that the removal of the semilunar cartilage may involve restriction of movement caused by tears and displacements of the menisci, but that the procedure may result in complications such as reflex sympathetic dystrophy, which can produce loss of motion.  Therefore, limitation of motion is a relevant consideration under DC 5259, and the provisions of 4.40, 4.45, and 4.59 must be considered.  In addition, the VA General Counsel has held that separate ratings may be assigned under DC 5260 and DC 5261 for limitation of flexion and limitation of extension of the same joint.  VAOPGCPREC 9-2004 (September 17, 2004).

A VA examination in December 2004 shows that the Veteran complained of stiffness of his knees as well as giving-way of his knees.  He had difficulty squatting, kneeling and climbing stairs.  He rode a bicycle for exercise and did not walk.  He had 135 degrees of flexion and zero degrees of extension bilaterally.  There was positive patellofemoral crepitus and apprehension and positive medial joint line tenderness.  The examiner commented that the Veteran had no evidence of decreased range of motion secondary to repetitive motions during examination.

At a May 2006 VA examination, the Veteran reported constant mild pain, rated as three on a scale of one to ten (3/10) in both knees with stiffness.  He reported swelling with flare-ups, but he denied heat, redness, instability or locking.  He reported that aggravating factors included standing more than ten minutes or bending of the knee; that brought severe pain rated as 10/10 that lasted for three hours and affected his occupation as a cook in that he stated he had been unable to work.  Examination revealed active flexion on the right to 40 degrees without pain and to 40-90 degrees with pain; passive flexion was to 130 degrees.  Active flexion on the left was to 90 degrees and to 110 degrees passively.  Extension was to zero degrees midline.  Range of motion was not additionally limited by pain, fatigue, weakness, or lack of endurance following repetitive use.  Examination of the knees was negative for instability, with negative anterior/posterior varus, valgus and Lachman stressing.  It was negative for ballottement and crepitus.

A December 2006 treatment record from W.L., M.D. shows that the Veteran had normal knee range of motion but with pain with effort to bring the knees to the extreme of motion.  He reported that he had considerable difficulty moving from a sitting to a standing position and his walking ability was quite limited as well.  There was no evidence of any specific atrophy, ankylosis or range of motion deficits.

At his June 2008 hearing, the Veteran testified that it was hard to walk.  June 2008 Hearing Transcript (T.) at 7.  He testified that he could not straighten his knees, do sit-ups or squat thrusts.  Id. at 9.

At a February 2010 VA examination, the Veteran reported that both knees had increased pain, increased frequency, duration and intensity of flare-up pain.  Subjective complaints included constant, moderate pain rated as 4/10 without locking or instability, but he had swelling.  The Veteran denied an effect on his occupation or activities of daily living.  He reported flare-up pain every day that was 10/10 in both knees and that lasted all day.  He used the assistive devices of custom shoes and handrails with poor response.  Examination revealed extension to zero degrees neutral bilaterally with pain and flexion to 100 degrees actively and passively with pain.  Range of motion was not additionally limited following repetitive use.  The knees were stable to Lachman's test, drawer test, and varus and valgus stressing.  There was a positive right lateral meniscal derangement with McMurray's sign.  There was grade two crepitus bilaterally.

The February 2013 examination report shows range of motion testing revealed flexion to 90 degrees with objective evidence of painful motion at 90 degrees bilaterally and zero degrees of extension with no objective evidence of painful motion bilaterally.  The Veteran was able to perform repetitive use testing with three repetitions.  Post-repetition, he had 90 degrees of flexion bilaterally and zero degrees of extension bilaterally.  The examiner reported that the Veteran did not have additional limitation in range of motion following repetitive use testing.  He did have functional loss and/or functional impairment; he had bilateral pain on movement and bilateral disturbance of locomotion.  There was no tenderness or pain to palpation for joint line or soft tissues of either knee.  
Muscle strength testing revealed flexion and extension of 5/5 bilaterally.  Anterior stability (Lachman test), posterior stability (posterior drawer test), and medial-lateral stability (valgus/varus pressure) were all normal bilaterally.  There was no evidence or history of recurrent patellar subluxation/dislocation.  The Veteran did not have other conditions.  He did not have any meniscal conditions or meniscal surgery.  He had had arthroscopic or other knee surgery on both legs.  He did not have any residual signs or symptoms due to arthroscopic or other knee surgery.  The Veteran had scars; they were not painful and/or unstable and the total area was not greater than 39 square centimeters (six square inches).  He did not have other pertinent physical findings, complications, conditions, signs and/or symptoms related to any diagnosed conditions.  The Veteran used a cane regularly.  The examiner opined that the Veteran's knee conditions limited his range of motion and ability to do any physical labor.

Review of the Veteran's pertinent treatment records throughout this appeal show bilateral knee treatment.  None of his records show flexion limited to 45 degrees or extension limited to 10 degrees.  They also do not show other knee symptomatology such as ankylosis; recurrent subluxation or lateral instability; dislocated semilunar cartilage with frequent episodes of "locking", pain and effusion into the joint; symptomatic removal of semilunar cartilage; impairment of the tibia and fibula; and genu recurvatum.

Based on a review of the evidence, the Board concludes that initial ratings in excess of 10 percent are not warranted.  A 20 percent rating under DC 5003 is only warranted in the absence of limitation of motion.  Here, both knees have been shown to have limited flexion.  However, the Veteran's limited flexion has not approximated that required for a 20 percent rating under DC 5260, which is 30 degrees.  With regards to the Veteran's right knee, at worst, he was shown to have pain beginning at 40 degrees in May 2006, although he continued to have active motion to 90 degrees at that time.  As a 10 percent rating under DC 5260 contemplates flexion limited to 45 degrees, the Board is unable to conclude that the Veteran's right knee limitation of flexion more nearly approximates that contemplated for by a 20 percent rating.  As for the left knee, at worst, his flexion was 90 degrees in May 2006 and February 2013, even when considering pain on motion.  Therefore, a rating in excess of 10 percent for limitation of flexion of the left knee is not warranted.  

The Board has also considered whether separate ratings are available for limitation of extension for both knees.  In this case, the Veteran's knee extension has been shown to be normal to zero degrees bilaterally throughout this appeal.  As such, a separate rating for limitation of extension is not warranted.  Therefore, the Board concludes that ratings in excess of 10 percent or separate ratings for limitation of flexion and extension are not warranted.

In reaching this conclusion, the Board has considered whether the Veteran's painful motion contributes to the actual limitation of motion such that an increased rating or separate flexion and extension ratings are warranted.  Here, even when taking into account the pain on use experienced by the Veteran, the Board finds that an increased rating for limitation of motion is not warranted, to include separate ratings for limitation of flexion and extension.  See 38 C.F.R. § 4.40 (a little used part of the musculoskeletal system due to pain may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity, or the like).  The evidence reflects constant pain.  The May 2006, February 2010 and February 2013 examination reports all reflect that the Veteran's pain on use and the functional loss it resulted in were taken into account.  None of the examinations or treatment records shows that the Veteran had muscle atrophy or other evidence of disuse.  Accordingly, the criteria for ratings in excess of 10 percent for limitation of motion for the Veteran's service-connected degenerative arthrosis of the bilateral knees have not been met.  38 C.F.R. § 4.71a, DCs 5003, 5010, 5260, 5261.

Furthermore, none of the Veteran's VA examinations or treatment records show knee symptoms such as ankylosis; recurrent subluxation or lateral instability; dislocated semilunar cartilage with frequent episodes of "locking", pain and effusion into the joint; symptomatic removal of semilunar cartilage; impairment of the tibia and fibula; and genu recurvatum.  Therefore, separate ratings for knee symptomatology other than limitation of motion are not warranted.  38 C.F.R. § 4.71a, DCs 5256, 5257, 5258, 5259, 5262, 5263 (2012).  
Moreover, the Board has considered whether separate ratings are warranted for the scars resulting from arthroscopies for these disabilities.  The Board notes amendments were recently made to the rating criteria for skin, effective October 23, 2008.  See 73 Fed. Reg. 54,708 (Sept. 23, 2008).  However, because the Veteran's claim was pending before October 23, 2008, and no request was made for consideration of this issue under the revised criteria (38 C.F.R. § 4.118, after October 23, 2008), a compensable rating for a scar will only be evaluated under the rating criteria in effect prior to October 23, 2008.  Id.  See also 38 C.F.R. § 4.118.

A compensable rating under DC 7801, which evaluates impairment for scars other than the head, face, or neck scar requires that the scar be deep or cause limitation of motion and exceeds 6 square inches (39 sq. cm.).  The Veteran's scars do not meet that criteria.  A compensable rating under DC 7802 for superficial scars that do not cause limitation of motion requires that the scar cover an area of 144 square inches (929 sq. cm.), which has not been shown.  Scars that are unstable warrant a 10 percent rating under DC 7803.  A note under DC 7803 defines an unstable scar as one where, for any reason, there is frequent loss of covering of skin over the scar.  The Veteran's scars have not been shown to be unstable, rendering DC 7803 inapplicable.  The scars were not painful on examination.  So, DC 7804 is also inapplicable.  Lastly, no limitation of function of affected part due to the scars has been shown.  So, a rating pursuant to DC 7805 is not warranted.  38 C.F.R. § 4.118, DCs 7801, 7802, 7803, 7804, 7805 (2008).  As such, separate ratings for scars are not warranted.

For these reasons, the Board finds that the criteria for initial ratings in excess of 10 percent for bilateral knee degenerative arthrosis have not been met.

	2.  Cervical Spine

The Veteran's cervical spine degenerative arthritis, including C5-C6 radiculopathy of the left side of the neck and left shoulder and torso is rated as 30 percent disabling under 38 C.F.R. § 4.71a, DC 5242, which evaluates impairment from degenerative arthritis of the spine.  

Since September 23, 2003, DCs 5235-5243 are rated under the General Rating Formula for Diseases and Injuries of the Spine.  Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes).  Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.  

Under the General Rating Formula, a 30 percent evaluation is for application with forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine.  38 C.F.R. § 4.71a, DC 5242 (2012).  A 40 percent evaluation is for application when there is unfavorable ankylosis of the entire cervical spine.  Id.  

Note (1), which follows the rating criteria, provides for the evaluation of any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.  Id.

At a December 2004 VA examination, the Veteran reported that he had used both physical therapy and assistive devices and apparently he estimated that he got about ten percent help from each.  The neck pain reportedly radiated to the head.  Range of motion did not change with repetitive use.  He had not had any intervertebral disk syndrome in the last 12 months.  As far as the activities of daily living, the Veteran could do almost everything except lifting, bending and cutting the grass.  Range of motion testing revealed flexion to 20 degrees without pain and to 30 degrees with pain; extension to five degrees without pain and to ten degrees with pain; lateral flexion to five degrees without pain and to ten degrees with pain; and rotation to 20 degrees without pain and to 30 degrees with pain.  Range of motion was not additionally limited by pain, fatigue, weakness or lack of endurance.  Examination revealed no spasm or tenderness in the paraspinal muscles.  He had no sensory changes.  

A VA examination in May 2006 shows that the Veteran reported having no injections, physical therapy, medications or assistive devices.  He stated that he had constant severe 7/10 pain; it did not radiate or affect the ability to walk, but any bending or twisting would bring on severe 10/10 pain lasting the rest of the day.  He denied any incapacitating episodes.  Range of motion testing revealed flexion with pain to 18 degrees; extension with pain to 20 degrees; lateral flexion to 22 degrees with pain bilaterally; and rotation to 30 degrees with pain bilaterally.  Range of motion was not additionally limited by pain with fatigue, weakness and repetitive use.  Physical examination revealed positive tenderness throughout the cervical spine.  Motor strength was 5/5 with adequate bulk and tone.  Deep tendon reflexes were 2+ and symmetrical.  

At his June 2008 hearing, the Veteran testified that his condition had worsened since the initial evaluation and that there was not much else that doctors could do.  T. at 9.  

The Veteran was afforded a VA examination in February 2010.  He reported increased constant pain with increased frequency and duration and intensity of flare-up pain since his last disability examination.  His current complaint was constant moderate 5/10 pain that radiated into his upper extremities.  It did not affect his ability to walk and he did not report any prescribed bed rest due to that condition.  His activities of daily living including sleeping, dressing, bathing and food preparation were affected.  He had flare-up pain every day that was severe at 10/10 and would last all day.  Range of motion testing revealed flexion with pain to 10 degrees; extension with pain to 10 degrees; lateral flexion with pain to 12 degrees bilaterally; and rotation with pain to 14 degrees bilaterally.  Ranges of motion were not additionally limited following repetitive use.  

Physical examination was positive for moderate grade two paravertebral muscle spasm and tenderness.  Straight leg raise was negative for neurological complaints.  There was decreased sensory in C2 through C7 dermatomes with decreased motor strength of 4/5 in both triceps and thumbs bilaterally.  Interosseous muscles were without atrophy.  Deep tendon reflexes were diminished at the elbows bilaterally at 1+.  Sensory was diminished and the vibration and light-touch in the C3 through C6 dermatomes.  

At the February 2013 VA examination, the Veteran answered no to flare-ups that impacted the function of the cervical spine.  Range of motion testing revealed flexion to 30 degrees with objective evidence of painful motion at 30 degrees; extension to 20 degrees with objective evidence of painful motion at 20 degrees; lateral flexion to 20 degrees with objective evidence of painful motion at 20 degrees bilaterally; and lateral rotation to 50 degrees with objective evidence of painful motion at 50 degrees bilaterally.  The Veteran was able to perform repetitive use testing.  Following repetition, he had flexion to 30 degrees; extension to 20 degrees; lateral flexion to 20 degrees bilaterally; and lateral rotation to 50 degrees bilaterally.  The examiner indicated that the Veteran did not have additional limitation in range of motion following repetition.  The Veteran also did not have any functional loss and/or functional impairment.  Muscle strength was 5/5 bilaterally throughout the upper extremities.  There was no muscle atrophy.  Deep tendon reflexes were normal of 2+ throughout the bilateral upper extremities.  Sensory examination was normal throughout the bilateral upper extremities.  The Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy.  He did not have any other neurologic abnormalities or IVDS.  Assistive devices consisted of regular use of a cane.  The Veteran had scars that were not painful and/or unstable and were not greater than 39 square centimeters (six square inches) in total area.  He did not have any other pertinent physical findings, complications, conditions, signs or other symptoms.

Although the Veteran's treatment records show continued treatment of his cervical spine and complaints of pain, as well as limited motion, they do not show ankylosis or associated objective neurologic abnormalities other than the already service-connected radiculopathy of the bilateral upper extremities.  

Based on a review of the evidence, the Board concludes that a rating in excess of 30 percent is not warranted at any time during this appeal.  The next higher 40 percent rating requires unfavorable ankylosis of the entire cervical spine.  None of the Veteran's treatment records or VA examinations show ankylosis.  They also do not show that the Veteran's range of motion is more severe than that contemplated for by the currently assigned 30 percent rating.  At worst, the Veteran was shown to have flexion limited to ten degrees in February 2010; a 30 percent evaluation is for application with forward flexion of the cervical spine 15 degrees or less.  Thus, the evidence does not indicate that a rating in excess of 30 percent based on limitation of motion is warranted at any time during this appeal.  

In reaching this conclusion, the Board has considered whether the Veteran's painful motion contributes to the actual limitation of motion such that an increased rating is warranted.  Here, even when taking into account the pain on use experienced by the Veteran, the Board finds that an increased rating for limitation of motion is not warranted.  See 38 C.F.R. § 4.40.  The VA examinations take into account the Veteran's functional impairment, as well as his pain on use and any limitations following repetition.  None of the examinations or treatment records shows that the Veteran had muscle atrophy or other evidence of disuse.  Accordingly, the criteria for a rating in excess of 30 percent for limitation of motion for the Veteran's service-connected cervical spine degenerative arthritis, including C5-C6 radiculopathy of the left side of the neck and left shoulder and torso, have not been met.  38 C.F.R. § 4.71a, DC 5242.

The Board has also considered whether separate ratings are warranted for associated objective neurologic abnormalities.  In this case, the Veteran has been granted service connection for radiculopathy of both upper extremities; the right upper extremity is evaluated as 50 percent disabling and the left upper extremity is evaluated as 40 percent disabling.  No other neurologic abnormalities have been shown; the February 2013 examination report specifically reflects that there were none.  Although the Veteran's cervical spine disability has been characterized as including radiculopathy of the left side of the neck, left shoulder and torso, the 40 percent rating for left upper extremity radiculopathy compensates the Veteran for his upper extremity complaints.  There is no indication that the Veteran has an objective neurologic abnormality of his torso.  

Based on the evidence of record, the Board concludes that associated objective neurologic abnormalities other than the radiculopathy of the bilateral upper extremities for which a separate rating can be granted have not been shown.  In this case, the pertinent medical evidence of record fails to show any other objective neurologic abnormalities.  Therefore, the Board concludes that separate ratings for associated neurologic abnormalities are not warranted.

Lastly, the Board observes that the Veteran has scarring of his cervical spine resulting from multiple surgeries.  However, a separate compensable rating for the Veteran's scars is not warranted as none of the examinations or treatment records have shown that they are deep or cause limited motion and cover areas at least six square inches (39 sq. cm.); are superficial and do not cause limited motion and cover areas of 144 square inches (929 sq. cm.) or greater; are superficial and unstable or painful; or cause other disabling affects.  38 C.F.R. § 4.118, DCs 7801, 7802, 7803, 7804, 7805.  Consequently, a separate rating for scarring is not warranted.

For these reasons, the Board finds that the criteria for a rating in excess of 30 percent for cervical spine degenerative arthritis, including C5-C6 radiculopathy of the left side of the neck and left shoulder and torso have not been met.

	3.  Lumbar Spine

The Veteran's lumbar spine degenerative arthritis is rated as10 percent disabling prior to January 11, 2010, and as 40 percent disabling from January 11, 2010, under 38 C.F.R. § 4.71a, DC 5237, which evaluates impairment from lumbosacral strain.  

Under the General Rating Formula, a 20 percent evaluation is for application with forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  38 C.F.R. § 4.71a, DC 5237 (2012).  Id.  A 40 percent evaluation is for application when forward flexion of the thoracolumbar spine is 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine.  Id.  A 50 percent evaluation is for application when there is unfavorable ankylosis of the entire thoracolumbar spine.  Id.  A 100 percent evaluation is for application when there is unfavorable ankylosis of the entire spine.  Id.

Note (1), which follows the rating criteria, provides for the evaluation of any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.  Id.

The Veteran reported that his back pain was local and affected his ability to walk at a December 2004 VA examination.  Range of motion did not change with repetitive use.  He had not had any intervertebral disk syndrome in the last 12 months.  The Veteran reported that after walking one quarter of a mile, he had a flare-up that might last a couple of hours.  As far as activities of daily living, he could do almost everything except lifting, bending and cutting the grass.  Range of motion testing revealed flexion to 40 degrees without pain and to 50 degrees with pain; extension to five degrees without pain and to ten degrees with pain; lateral flexion to ten degrees without pain and to 15 degrees with pain; and rotation to ten degrees without pain and to 15 degrees with pain.  Range of motion was not additionally limited by pain, fatigue, weakness or lack of endurance.  There was no spasm or tenderness in the paraspinal muscles.  He had bilateral straight-leg raising sign at 45 degrees; absent Achilles reflexes; no sensory changes; and appropriate gait for a 65 year old man.  

The Veteran was afforded a VA examination in May 2006.  He reported constant pain in his low back that was local and did not radiate; he reported constant severe 7/10 pain without radiation.  It affected his ability to walk only a few yards.  Any bending, twisting or sitting more than ten minutes would bring on severe 10/10 pain lasting for two to three hours and he reported that affected his ability to work at his occupation as a cook.  Range of motion testing revealed flexion to 50 degrees with pain; extension to 20 degrees with pain; lateral flexion to 18 degrees with pain; and minimal rotation to 20 degrees with pain.  Range of motion was not additionally limited by pain with fatigue, weakness or repetitive use.  

Physical examination revealed positive tenderness throughout the lumbar spine.  Straight leg raises were positive for complaints at the lower back only without radiation.  Motor strength was 5/5 with adequate bulk and tone.  Sensory examination showed a decrease in sensation to light touch and vibration, which was lost in a stocking pattern bilaterally.  Deep tendon reflexes were 2+ and symmetrical and his gait was antalgic.  

At his June 2008 hearing, the Veteran testified that he did not have much range of motion in his lumbar spine and that he also had a pinched nerve in the lumbar spine.  T. at 10.

At a February 2010 VA examination, the Veteran reported that since the last disability examination, he had increased constant pain and increased frequency, duration and intensity of flare-up pain.  He reported constant severe 7/10 pain that radiated into his legs and up his posterior trunk affecting his ability to walk only a few yards.  He did not report any prescribed bed rest or orthopedic treatment.  His activities of daily living of exercising were limited in pool, doing chores, sleeping, bath and toileting were affected.  He had flare-up pain that was severe at 10/10.  He used the assistive devices of a TENS unit, a walker and a wheelchair with a low response.  Range of motion testing revealed flexion with pain to 30 degrees; extension with pain to ten degrees; lateral flexion to ten degrees with pain bilaterally; and rotation to 20 degrees with pain bilaterally.  Examination was positive for moderate paravertebral muscle spasm and tenderness.  Straight-leg raises were positive at 20 degrees for complaints of nerve pain.  His gait was antalgic.  Neurologic findings were attributed to diabetic polyneuropathy.  

The Veteran was afforded a VA examination in February 2013.  He reported that his back became really painful in 2000 and he was told to start wearing a back brace.  He answered no to flare-ups that impacted the function of the back.  Range of motion testing revealed flexion to 60 degrees with objective evidence of painful motion at 60 degrees; extension to 20 degrees with objective evidence of painful motion at 20 degrees; lateral flexion to 15 degrees with objective evidence of painful motion at 15 degrees bilaterally; and lateral rotation to 20 degrees with objective evidence of painful motion at 20 degrees bilaterally.  Following three repetitions, he had flexion to 60 degrees; extension to 20 degrees; lateral flexion to 15 degrees bilaterally; and lateral rotation to 20 degrees bilaterally.  The Veteran did not have additional limitation in range of motion following repetition but did have functional loss and/or functional impairment.  He had excess fatigability, pain on movement, instability of station and disturbance of locomotion.  

He did not have localized tenderness or pain to palpation for joints and/or soft tissue.  Muscle strength testing was 5/5 throughout his bilateral lower extremities.  There was no muscle atrophy.  Deep tendon reflexes were hypoactive at 1+ for the knees bilaterally and absent at zero for the ankles bilaterally.  Sensory examination was normal for the bilateral upper anterior thighs and thigh/knee, but decreased for the bilateral lower leg/ankle and absent for the bilateral foot/toes.  Straight leg raise testing was positive bilaterally.  The Veteran had radicular pain or other signs or symptoms due to radiculopathy.  He had bilateral mild constant pain and intermittent pain and bilateral moderate paresthesias and/or dysesthesias and numbness.  Both sciatic nerves were involved.  He had no other neurologic abnormalities such as bowel or bladder problems/pathologic reflexes.  He did not have IVDS.  The Veteran used a cane regularly.  He did not have any scars.  The examiner opined that the Veteran's mobility was decreased as well as his ability to perform physical labor.  

The Veteran's pertinent treatment records during this appeal show treatment for his spine, but do not show limitations of motion in ranges of degrees, nor do they show associated objective neurologic abnormalities.

Based on a review of the evidence, the Board concludes that a rating in excess of 20 percent is not warranted prior to January 11, 2010, and a rating in excess of 40 percent is not warranted from January 11, 2010.

Prior to January 11, 2010, at worst, the Veteran's flexion was shown to be 40 degrees with pain at the December 2004 VA examination.  The next higher rating of 40 percent requires that forward flexion is 30 degrees or less or that there is favorable ankylosis of the entire thoracolumbar spine.  The VA examinations and treatment records during this period do not show such limitation nor do they show ankylosis.  There is no indication that the Veteran's lumbar spine symptomatology more nearly approximated the criteria for a 40 percent rating during this time period.  Therefore, a rating in excess of 20 percent is not warranted prior to January 11, 2010.

Since January 11, 2010, the next higher rating of 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine, which has not been shown.  The Veteran's treatment records and VA examinations do not show any diagnosis of unfavorable ankylosis, nor do they show that limitation of motion is tantamount to a rating in excess of 40 percent.  At worst, during this period, the Veteran had forward flexion of 30 degrees, which is contemplated for by the assigned 40 percent rating.  Therefore, the Board concludes that a rating in excess of 40 percent from January 11, 2010, is not warranted.

In reaching this conclusion, the Board has considered whether the Veteran's painful motion contributes to the actual limitation of motion such that increased ratings are warranted.  Here, even when taking into account the pain on use experienced by the Veteran, the Board finds that increased ratings for limitation of motion is not warranted.  See 38 C.F.R. § 4.40.  The VA examinations take into account the Veteran's functional impairment, as well as his pain on use and any limitations following repetition.  None of the examinations or treatment records show that the Veteran had muscle atrophy or other evidence of disuse.  Accordingly, the criteria for a rating in excess of 20 percent prior to January 11, 2010, and in excess of 40 percent from January 11, 2010, for limitation of motion for the Veteran's service-connected lumbar spine degenerative arthritis have not been met.  38 C.F.R. § 4.71a, DCs 5010, 5247.

The Board has also considered whether separate ratings are warranted for associated objective neurologic abnormalities.  In this case, the Veteran has been granted service connection for peripheral neuropathy of the bilateral lower extremities as secondary to his service-connected diabetes.  Although the Veteran has been shown to have neurologic impairment of his bilateral lower extremities, such impairment is associated with his diabetes.  The Board acknowledges the February 2013 examination indicating that the Veteran had sciatic nerve impairment.  However, the examiner did not provide any rationale for why the Veteran had sciatic nerve impairment as opposed to diabetic peripheral neuropathy.  The totality of the evidence does not establish that the Veteran has bilateral lower extremity radiculopathy associated with the lumbar spine disability separate from his already service-connected diabetic peripheral neuropathy.  Indeed, the Veteran has not contended as such.  Therefore, the Board concludes that the Veteran does not have lower extremity neurologic abnormalities associated with his lumbar spine.  The evidence also does not show other neurologic abnormalities such as bowel or bladder impairment. 

Based on the evidence of record, the Board concludes that associated objective neurologic abnormalities for which a separate rating can be granted have not been shown.  In this case, the pertinent medical evidence of record fails to show objective neurologic abnormalities associated with the Veteran's lumbar spine disability.  Therefore, the Board concludes that separate ratings for associated neurologic abnormalities are not warranted.

For these reasons, the Board finds that the criteria for a rating in excess of 20 percent prior to January 11, 2010, and in excess of 40 percent from January 11, 2010, for lumbar spine degenerative arthritis have not been met.

	4.  Bilateral Pes Cavus

The Veteran's bilateral pes cavus is rated as zero percent or noncompensably disabling prior to August 24, 2010; as 10 percent disabling from October 1, 2010, to February 2, 2013; and as 50 percent disabling from February 2, 2013 under 38 C.F.R. § 4.71a, DC 5278, which evaluates impairment from acquired claw foot (pes cavus).  As noted in the Introduction, the Veteran was awarded a temporary total evaluation for surgery for the period from August 24, 2010, to October 1, 2010.  The Board will address the severity of Veteran's disability for the pendency of this appeal excluding the temporary total evaluation.

Pursuant to DC 5278, a 10 percent rating is warranted for bilateral pes cavus with great toe dorsiflexed, some limitation of dorsiflexion at ankle and definite tenderness under metatarsal heads.  38 C.F.R. § 4.71a, DC 5278 (2012).  A 30 percent rating is warranted for bilateral pes cavus with all toes tending to dorsiflexion, limitation of dorsiflexion at ankle to right angle, shortened plantar fascia, and marked tenderness under metatarsal heads.  Id.  A 50 percent rating is warranted for bilateral pes cavus with marked contraction of plantar fascia with dropped forefoot, all toes hammer toes, very painful callosities and marked varus deformity.  Id.

The Veteran was afforded a VA examination in December 2004.  He reported having inserts; pain with standing for prolonged periods of time; and not doing much walking due to his feet.  He stated that his feet swelled and he had pain after ten minutes of standing.  He reportedly had night pain that he related as possibly neuropathic burning type pain.  Examination showed supple claw toe deformities bilateral second through fifth toes; dorsal boss on the talonavicular joint, left greater than right.  He had a positive Silfverskiold test on the right and left side.  Toenails and arches were within normal limits on both feet.  He had 2+ pulses bilaterally; and decreased sensation in bilateral lower extremities to the midshin with lack of normal hair and skin appendages on legs to the proximal tibia.  

At a May 2006 VA examination, the Veteran reported constant moderate 6/10 pain in both feet.  He stated that he was able to stand only for a few minutes without flare-ups to severe 7/10 pain and walk a few yards before that occurred.  Examination revealed that the skin was without corns, calluses or edema.  The toes were midline and nails clear without thickening, and the pulses were 2+.  There was no restricted motion or painful motion.  There was tenderness throughout the feet.  There was also a decrease in sensation to light touch and vibration, which was lost in a stocking pattern bilaterally.  There was abnormal weight bearing of pes cavus bilaterally and his gait was antalgic.  The examiner commented that there was an incidental finding of bilateral polyneuropathy to the lower extremities unrelated to the pes cavus.

At his June 2008 hearing, the Veteran testified needing special shoes, having hammer toes, high arches, and numbness.  T. at 13.  

The Veteran reported to the February 2010 VA examiner that since his last disability evaluation, he had increased constant pain.  The Veteran reported constant, mild 2/10 pain and that he wore custom shoes without surgery.  Activities of daily living of chores and sleeping were affected.  He reported flare-up pain every day that was severe, 10/10, which lasted all day.  He reported that it limited standing to less than ten minutes or walking more than 100 yards.  Examination revealed that the skin was without corns, calluses or edema.  There were no flat feet.  There was pes cavus without callosities; midline Achilles; and no tenderness or change in range of motion.  

The Veteran was afforded a VA examination in February 2013.  He reported that he had to wear special shoes.  The only foot disability shown on examination was pes cavus.  The examiner reported that both great toes dorsiflexed; left toes tended to dorsiflexion; and second through fourth toes on the right foot were surgically repaired to straighten out.  There was marked tenderness under both metatarsal heads and very painful callosities for both feet.  Both feet had shortened plantar fascia and marked contraction of plantar fascia with dropped forefoot.  There was some limitation of dorsiflexion at both ankles.  The Veteran had scars but they were not painful and/or unstable and the total area was not greater than 39 square centimeters (six square inches).  He had no other pertinent physical findings, complications, conditions, signs and/or symptoms.  The Veteran used a cane regularly.  

The Veteran's pertinent treatment records during this appeal show repeated treatment for his feet as well as the prescription of custom shoes and inserts.  Prior to August 24, 2010, the treatment records did not show findings such as great toe dorsiflexed, some limitation of dorsiflexion at ankle and definite tenderness under metatarsal heads.  Following his surgical convalescence period prior to February 1, 2013, the records did not show findings as identified in the rating criteria as warranting 30 percent or 50 percent ratings.  

Based on a review of the evidence, the Board concludes that prior to February 2, 2013, separate 10 percent ratings for each foot under DC 5284 is warranted.  Since February 2, 2013, a rating in excess of 50 percent under DC 5278 is not warranted.

In this case, prior to February 2, 2013, the Veteran's bilateral pes cavus did not meet the rating for higher ratings under DC 5278.  As noted above, a zero percent evaluation was assigned prior to August 24, 2010, and a rating of 10 percent was assigned from October 1, 2010, to February 2, 2013.  The VA examinations and treatment records did not show that prior to August 24, 2010, the Veteran's bilateral pes cavus resulted in great toe dorsiflexed, some limitation of dorsiflexion at ankle and definite tenderness under metatarsal heads.  For the period from October 1, 2010, to February 2, 2013, the evidence did not show all toes tending to dorsiflexion, limitation of dorsiflexion at ankle to right angle, shortened plantar fascia, and marked tenderness under metatarsal heads.  Therefore, the Board concludes that higher ratings under DC 5278 are not warranted.

However, the Board observes that DC 5284, which contemplates other foot injuries is also applicable.  In this case, the treatment records and December 2004, May 2006 and February 2010 VA examinations all show that the Veteran did have symptomatology due to his bilateral pes cavus.  The evidence prior to February 2, 2013, shows that the Veteran required custom shoes and reportedly had constant pain and functional limitations.  Therefore, the Board concludes that separate 10 percent ratings for moderate disability under DC 5284 are warranted prior to February 2, 2013.  38 C.F.R. § 4.71a, DC 5284 (2012).  

The Board also concludes that higher ratings under DC 5284 are not warranted as the next higher rating of 20 percent requires moderately severe disability.  Id.  In this case, despite the Veteran having pain, the VA examinations during this time period did not show limitation of motion or painful motion.  Therefore, the Board concludes that the Veteran's bilateral pes cavus did not more nearly approximate moderately severe disability.  As such, separate ratings of 20 percent for each foot are not warranted.

For the period from February 2, 2013, the Veteran is receiving the highest rating available for foot disabilities.  The Board has considered whether separate ratings under DC 5284 to be combined would provide for a higher rating.  However, the highest rating available under DC 5284 is 30 percent.  Even if the Board was assign separate 30 percent ratings to each foot, such ratings would combine to 50 percent.  38 C.F.R. § 4.25 (2012).  As such, a rating in excess of 50 percent is not warranted from February 2, 2013.  

In reaching these conclusions, the Board has considered whether the Veteran's painful motion contributes to the actual limitation of motion such that increased ratings are warranted.  Here, even when taking into account the pain on use experienced by the Veteran, the Board finds that increased ratings for limitation of motion is not warranted.  See 38 C.F.R. § 4.40.  The VA examinations take into account the Veteran's functional impairment, as well as his pain on use.  None of the examinations or treatment records shows that the Veteran had muscle atrophy or other evidence of disuse.  Accordingly, the criteria for separate 10 percent ratings, but no higher, prior to February 2, 2013, have been met; a rating in excess of 50 percent from February 2, 2013, for limitation of motion for the Veteran's service-connected pes cavus have not been met.  38 C.F.R. § 4.71a, DCs 5278, 5284.

The Board has considered whether higher or separate ratings are warranted under the other diagnostic codes used to evaluate the feet, but find that none apply.  The Veteran has not been shown to have acquired flatfoot, bilateral weak foot, anterior metatarsalgia, hallux valgus, hallux rigidus, hammer toe without claw foot, or malunion or nonunion of tarsal or metatarsal bones.  Therefore, higher or separate ratings under other diagnostic codes are not warranted.  38 C.F.R. § 4.71a, DCs 5276, 5277, 5279, 5280, 5281, 5282, 5283 (2012).  

For these reasons, the Board finds that the criteria for separate 10 percent ratings for each foot prior to February 2, 2013, have been met.  However, the criteria for a rating in excess of 50 percent from February 2, 2013 for the Veteran's service-connected pes cavus have not been met.

	5.  Bilateral Hearing Loss 

Disability evaluations for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  Examinations are conducted using the controlled speech discrimination tests together with the results of the puretone audiometry test.  See 38 C.F.R. § 4.85.

The results are then analyzed using tables contained in 38 C.F.R. § 4.85, DC 6100.  "Puretone threshold average,'' as used in Tables VI and VIa, is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four.  This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIa.  The appropriate rating is then determined by finding the intersection point for the two Roman numeral designations using Table VII.

For exceptional patterns of hearing impairment, 38 C.F.R. § 4.86 provides as follows: (a) When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz ) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral.  Each ear will be evaluated separately. (b) When the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral.  That numeral will then be elevated to the next higher Roman numeral.  Each ear will be evaluated separately.

The average pure tone hearing loss on a VA audiological evaluation in December 2004 was 35 decibels in the right ear and 39 decibels in the left ear.  Speech recognition scores using the Maryland CNC word lists were 100 percent in the right ear and 84 percent in the left ear.  An exceptional pattern of hearing loss was not shown.  The Veteran reported that the situation of greatest difficulty was conversation.  Pursuant to 38 C.F.R. 4.85, Table VI with regards to the Veteran's right ear, his pure tone threshold average and speech discrimination score received a numeric designation of Level I.  Turning to the Veteran's left ear, the foregoing pure tone threshold average and speech discrimination score received a numeric designation of Level II.  Applying the numeric designations to 38 C.F.R. 4.85, Table VII, the Veteran was entitled to a noncompensable rating under DC 6100.  Therefore, a compensable rating is not warranted based on these results.  
The average pure tone hearing loss on a VA audiological evaluation in June 2006 was 41 decibels in the right ear and 45 decibels in the left ear.  Speech recognition scores using the Maryland CNC word lists were 94 percent in the right ear and 94 percent in the left ear.  An exceptional pattern of hearing loss was not shown.  The Veteran reported that the situation that caused the greatest difficulty in terms of hearing loss was watching television and that his wife complained.  Pursuant to 38 C.F.R. 4.85, Table VI with regards to the Veteran's right ear, his pure tone threshold average and speech discrimination score received a numeric designation of Level I.  Turning to the Veteran's left ear, the foregoing pure tone threshold average and speech discrimination score also received a numeric designation of Level I.  Applying the numeric designations to 38 C.F.R. 4.85, Table VII, the Veteran was entitled to a noncompensable rating under DC 6100.  Therefore, a compensable rating is not warranted based on these results.  

The average pure tone hearing loss on a VA audiological evaluation in May 2011 was 60 decibels in the right ear and 55 decibels in the left ear.  Speech recognition scores using the Maryland CNC word lists were 94 percent in the right ear and 92 percent in the left ear.  An exceptional pattern of hearing loss was not shown.  The examiner opined that the Veteran's bilateral hearing loss had significant effects on occupation and other affects on daily activities due to hearing difficulty and difficulty hearing, respectively.  Pursuant to 38 C.F.R. 4.85, Table VI with regards to the Veteran's right ear, his pure tone threshold average and speech discrimination score received a numeric designation of Level II.  Turning to the Veteran's left ear, the foregoing pure tone threshold average and speech discrimination score received a numeric designation of Level I.  Applying the numeric designations to 38 C.F.R. 4.85, Table VII, the Veteran was entitled to a noncompensable rating under DC 6100.  Therefore, a compensable rating is not warranted based on these results.  

The average pure tone hearing loss on a VA audiological evaluation in February 2013 was 61 decibels in the right ear and 58 decibels in the left ear.  Speech recognition scores using the Maryland CNC word lists were 92 percent in the right ear and 92 percent in the left ear.  An exceptional pattern of hearing loss was not shown.  The Veteran reported that he wore hearing aids to help hear conversational speech.  Pursuant to 38 C.F.R. 4.85, Table VI with regards to the Veteran's right ear, his pure tone threshold average and speech discrimination score received a numeric designation of Level II.  Turning to the Veteran's left ear, the foregoing pure tone threshold average and speech discrimination score also received a numeric designation of Level II.  Applying the numeric designations to 38 C.F.R. 4.85, Table VII, the Veteran was entitled to a noncompensable rating under DC 6100.  Therefore, a compensable rating is not warranted based on these results.  

Treatment records during this appeal show a need for hearing aids, but do not show speech recognition scores using the Maryland CNC word lists.

Here, the Veteran has been awarded a noncompensable rating throughout the pendency of this appeal.  For the reasons set forth above, the evidence does not show that he is entitled to a compensable rating for bilateral hearing loss at any time during the pendency of this appeal based on the standard rating criteria.  38 C.F.R. § 4.85, DC 6100.  Therefore, his increased rating claim is denied.

The above determination is based upon consideration of applicable rating provisions.  In Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007), the Court noted that VA had revised its hearing examination worksheets to include the effect of the Veteran's hearing loss disability on occupational functioning and daily activities.  See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Veterans Apr. 24, 2007); see also 38 C.F.R. § 4.10 (2012).  The Court also noted, however, that, even if an audiologist's description of the functional effects of the Veteran's hearing loss disability was somehow defective, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination.

In this case, the Veteran reported functional impairment in hearing conversational speech and in watching television and that his wife complained at the December 2004 and June 2006 examinations, respectively.  The Veteran also reported that he wore hearing aids to hear conversational speech in February 2013.  Additionally, the May 2011 examiner opined as to the effects that bilateral hearing loss had on the Veteran's occupation and daily activity.  As the May 2011 examination described the functional effects of the Veteran's bilateral hearing loss disability, as the Veteran reported his functional effects in December 2004, June 2006, and February 2013, and as the Veteran has not demonstrated any prejudice caused by a deficiency in any examination, the Board reiterates that the evidence does not support a finding of a compensable rating at any time during this appeal.  The evidence does not show that the Veteran's bilateral hearing loss has resulted in marked interference with employment or activities of daily life.  

Accordingly, and based on this evidentiary posture, the Board concludes that the totality of the evidence of record has not shown that the Veteran's bilateral hearing loss warrants a compensable schedular rating at any time during this appeal.  The Board finds, therefore, that the evidence of record does not support the criteria required for a compensable schedular rating at any time during this appeal.  

	6.  Right Lower Extremity 

In this case, the Veteran has been diagnosed with right lower extremity status post operative varicose veins.  This service-connected disability is currently rated as 10 percent disabling under 38 C.F.R. § 4.104, DC 7120, which evaluates impairment from varicose veins with the following findings attributed to the effects of varicose veins.

Pursuant to DC 7120, a 10 percent rating is warranted for intermittent edema of extremity or aching and fatigue in leg after prolonged standing or walking, with symptoms relieved by elevation of extremity or compression hosiery.  38 C.F.R. § 4.104, DC 7120 (2012).

A 20 percent rating is warranted for persistent edema, incompletely relieved by elevation of extremity, with or without beginning stasis pigmentation or eczema.  Id.  A 40 percent rating is warranted for persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration.  Id.  A 60 percent rating is warranted for persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration.  Id.  A 100 percent rating is warranted for massive board-like edema with constant pain at rest.  Id.

The Veteran was afforded a VA examination in December 2004.  He reported that his legs and feet throbbed all of the time, especially if he lay down; and if he stood more than ten minutes, he had to sit down because the pain was so great.  He reported aching and fatigue and abnormal sensation in the legs after prolonged standing and walking.  Symptoms, he reportedly got no significant edema, but symptoms were suppressed when the Veteran was lying flat and elevated his legs.  He did not wear compression stockings.  Effects on his usual activities would be related to poor ability to stand for long times or walk long distances.  Examination revealed scars on his right leg from harvesting vein graft surgery.  He had bilateral varicose veins in his lower extremities.  Sensation was not intact to touch to his feet, but was intact at the level of his legs.  Proprioception was intact.  Reflexes were 2+ and strength was 5/5.

At a May 2006 VA examination, the Veteran complained of constant pain, which he described as a burning sensation.  He stated that he had no relief with support stockings.  His symptoms were reportedly exacerbated by prolonged standing and walking.  He described numbness in his feet.  He stated that the condition had severely limited recreational activities.  Examination revealed bilateral 1+ dorsalis pedal pulses.  He had medial scars on the right calf from stripping of veins for treatment of varicose veins.  There were no gross focal motor deficits.  He had loss of light-touch sensation.  The Veteran stated that he was unable to detect a monofilament when the examiner tested his feet for light-touch sensation.  The examiner commented that the Veteran's complaints and his symptoms were out of proportion to the surgical scars.  The discomfort in his legs was not limited to the general area of the surgical scars.  His symptoms involved the entire distal lower extremities bilaterally.  The examiner believed that it was more likely than not that his leg pain was secondary to idiopathic peripheral neuropathy.  It was unlikely that varicose vein stripping would result in neuropathic pain and paresthesias in his feet.

The Veteran testified at his June 2008 hearing that he had pain and less feeling that he had before his in-service surgery.  T. at 11.  

The Veteran was afforded a VA skin examination in February 2010.  He did not report any pain.  His exercise was limited.  He had a scar that measured one by five centimeters.  It was tender to touch without adherence to underlying tissue.  Texture was smooth, the scar was stable without elevation or depression.  It was superficial without inflammation, edema or cheloid formation.  Color of the scar was hypopigmented throughout its entire dimension without gross distortion.  Induration and flexibility with limitation of motion caused by the scar in and of itself.  

The Veteran failed to report for a May 2011 VA examination specifically for his varicose veins. 

He was afforded a VA examination in February 2013.  The examiner reported that the Veteran had bilateral asymptomatic palpable varicose veins; bilateral asymptomatic visible varicose veins; bilateral aching and fatigue in leg after prolonged standing or walking; and bilateral constant pain at rest.  No assistive devices were used.  The Veteran's scars were not painful and/or unstable, and the total area was not 39 square centimeters (six square inches) or greater.  

His treatment records throughout this appeal do not show symptoms such as persistent edema, incompletely relieved by elevation of extremity, with or without beginning stasis pigmentation or eczema.  

Based on a review of the evidence, the Board concludes that a rating in excess of 10 percent is not warranted at any time during this appeal.  The next higher rating of 20 percent requires persistent edema, incompletely relieved by elevation of extremity, with or without beginning stasis pigmentation or eczema.  In this case, the Veteran reported that he did not have significant edema at the December 2004 VA examination.  None of his VA examinations or treatment records shows symptoms equating to a 20 percent rating for varicose veins.  Rather, the actual symptoms shown are contemplated for by the currently assigned 10 percent rating.  Therefore, the Board concludes that a rating in excess of 10 percent is not warranted at any time during this appeal.

Lastly, the Board observes that the Veteran has scarring resulting from surgery.  However, a separate compensable rating for the Veteran's scars is not warranted as none of the examinations or treatment records have shown that they are deep or cause limited motion and cover areas at least six square inches (39 sq. cm.); are superficial and do not cause limited motion and cover areas of 144 square inches (929 sq. cm.) or greater; are superficial and unstable; or cause other disabling affects.  38 C.F.R. § 4.118, DCs 7801, 7802, 7803, 7805.  

The Board acknowledges that the scar was shown to be painful at the February 2010 VA examination.  However, the other examinations do not indicate that the Veteran's scar was painful; the May 2006 examiner opined that the Veteran's complaints and his symptoms were out of proportion to the surgical scars.  In this case, although one examination showed that the scar was painful, the other examinations as well as the Veteran's treatment records fail to show painful scarring.  Therefore, the Board concludes that a separate rating for painful scars under DC 7804 is not warranted.  Consequently, a separate rating for scarring is not warranted. 

For these reasons, the Board finds that the criteria for a rating in excess of 10 percent for right lower extremity status post operative varicose veins have not been met.

	7.  Extraschedular Consideration

Furthermore, the rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations.  Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the disability.  38 C.F.R. § 4.1.  The Board notes that in exceptional cases where evaluations provided by the rating schedule are found to be inadequate, an extraschedular evaluation may be assigned which is commensurate with the veteran's average earning capacity impairment due to the service-connected disorder.  38 C.F.R. § 3.321(b).  However, the Board believes that the regular schedular standards applied in the current case adequately describe and provide for the Veteran's bilateral knee, cervical and lumbar spines, bilateral feet, hearing loss and right lower extremity symptoms and disability level.  Marked interference with employment beyond that contemplated by the schedular criteria has not been shown.  The record does not reflect a disability picture that is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the Veteran for his service-connected disabilities.  The evidence does not show that the Veteran's bilateral knee, cervical and lumbar spines, bilateral feet, hearing loss and right lower extremity disabilities have resulted in interference with employment or activities of daily life which would warrant increased ratings for each disability.

Moreover, as the Veteran is already in receipt of a 100 percent disability rating, the Board need not address whether the issue of a total disability rating based on individual unemployability has been raised by the record.  


ORDER

Entitlement to an initial rating in excess of 10 percent for right knee degenerative arthrosis status post partial lateral meniscectomy is denied.

Entitlement to an initial rating in excess of 10 percent for left knee degenerative arthrosis is denied.

Entitlement to a rating in excess of 30 percent for cervical spine degenerative arthritis, including C5-C6 radiculopathy of the left side of the neck and left shoulder and torso is denied.

Entitlement to a rating in excess of 20 percent prior to January 11, 2010, and in excess of 40 percent from January 11, 2010, for lumbar spine degenerative arthritis is denied.

Separate 10 percent ratings are granted for bilateral pes cavus for each foot prior to February 2, 2013.  To this extent only, the appeal is allowed.
Entitlement to a rating in excess of 50 percent from February 2, 2013, for bilateral pes cavus is denied.

Entitlement to a compensable rating for bilateral hearing loss is denied.

Entitlement to a rating in excess of 10 percent for right lower extremity status post operative varicose veins is denied. 



____________________________________________
MILO H. HAWLEY 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs