Citation Nr: 1329421 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 09-03 647 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for peripheral neuropathy of the right lower extremity. 2. Entitlement to an evaluation in excess of 20 percent for degenerative joint disease of the right ankle. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C.L. Krasinski, Counsel INTRODUCTION The Veteran had active service from January 1970 to December 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in April 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that granted service connection for peripheral neuropathy of the right lower extremity and assigned a 10 percent rating and denied entitlement to an increased rating for the right ankle degenerative joint disease. In July 2009, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A hearing transcript has been added to the record. This matter was remanded to the RO in March 2010 for further development of the evidence, including obtaining updated VA treatment notes and obtaining a VA examination. The RO/AMC obtained the VA treatment records and obtained the requested medical opinion in June 2010. A supplemental statement of the case was issued to the Veteran and his representative in May 2011. As the requested development has been completed to the extent possible, no further action to ensure compliance with the remand directives is required. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the Veteran's file on the "Virtual VA" system to ensure a complete assessment of the evidence. The Virtual VA file contains two VA treatment records that were not part of the file at the time the May 2011 supplemental statement of the case was issued. However, the VA treatment records are not pertinent to the issues on appeal and do not address the current severity of the service-connected right ankle disability and the peripheral neuropathy of the right lower extremity. The Board finds that the solicitation of a waiver and/or remand for the RO's initial consideration of this evidence is not required. 38 C.F.R. § 20.1304(c). The record reflects that the Veteran has raised a claim of entitlement to an increased rating for his service-connected peripheral neuropathy of the left lower extremity in October 2009. This issue has not been adjudicated and is referred to the RO for appropriate action. FINDINGS OF FACT 1. For the entire appeal period, the service-connected peripheral neuropathy of the right lower extremity is manifested by numbness and decreased sensation in the right foot with no loss of function or functional impairment, tremor, atrophy, fasciculations, or imbalance which more closely approximates mild impairment. 2. For the entire appeal period, the service-connected right ankle degenerative joint disease is manifested by pain, stiffness, tenderness, weakness, and flare-ups of severe pain; x-ray findings of mild degenerative changes in the right ankle joint; dorsiflexion from zero degrees to 8 to 10 degrees; plantar flexion from zero degrees to 35 to 45 degrees; and painful motion with no instability, ankylosis, or additional limitation of motion or functional loss due to pain, weakness, fatigability, lack of endurance, or incoordination, which more closely approximates marked limitation of motion. CONCLUSIONS OF LAW 1. For the entire appeal period, the criteria for an initial disability evaluation in excess of 10 percent for the service-connected peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.7, 4.123, 4.124, 4.124a, Diagnostic Code 8521 (2012). 2. For the entire appeal period, the criteria for the assignment of a disability evaluation in excess of 20 percent for the service-connected right ankle degenerative joint disease have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5271 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As provided for by VCAA, 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 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, 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). Proper notice from VA 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 in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ), in this case the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The VCAA duty to notify was satisfied by way of a letters sent to the Veteran in September 2007 and November 2007, prior to the initial adjudications of the claims. The letters fully addressed all three notice elements and informed the Veteran of what evidence was required to substantiate the claims and of the Veteran's and VA's respective duties for obtaining evidence. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service- connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, notice consistent with the Court's holding in Dingess was provided in the September 2007 and November 2007 letters. The Courts have held that were the underlying claim of service connection has been granted and there is disagreement as to downstream questions, the claim has been substantiated and there is no need to provide additional VCAA notice nor is there prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The record establishes that the Veteran has been afforded a meaningful opportunity to participate in the adjudication of his claims. Therefore, the Board finds the duty to notify provisions of VCAA have been fulfilled. VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained all pertinent treatment records identified by the Veteran. All available service treatment records are associated with the record. VA treatment records dated from 2003 to March 2012 are associated with the claims folder. The RO afforded the Veteran VA examinations in 2007, 2008, and 2010 in order to obtain medical evidence of the nature and severity of the service-connected right ankle disability and the peripheral neuropathy of the right lower extremity. The examinations were adequate. The evaluations were performed by medical professionals based on either a review of claims file or solicitation of history and symptomatology from the Veteran, and examination of the Veteran. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008). Neither the Veteran nor representative has challenged the adequacy of the examinations obtained. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). The VA examination findings are accurate and fully descriptive and address the rating criteria in the rating schedule. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U.S. Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, during the July 2009 Board hearing, the Veterans Law Judge specifically noted the issues on appeal. Then, having heard the Veteran's evidence, the Veterans Law Judge sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claims. Both the Veterans Law Judge and the Veteran's representative specifically queried the Veteran regarding any evidence the Veteran might have showing that the service-connected disabilities are more severe than currently rated. In this case, the Veterans Law Judge substantially complied with the requirements of Bryant. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C.A. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2012). Where there is a question as to which of two evaluations (ratings) shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. The Board must analyze the credibility and probative value of the evidence, account for the persuasiveness of the evidence, and provide reasons for rejecting any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308- 09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202, 205 (1995). It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. Id. 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 or evidenced by visible behavior of the claimant undertaking the motion. Id. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id. The factors involved in evaluating, and rating disabilities of the joints include weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); excess fatigability; incoordination (impaired ability to execute skilled movements smoothly); more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); or pain on movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. Under 38 C.F.R. § 4.59, 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 the affected joints. The intent of the rating schedule is to recognize painful motion with joint or periarticular 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. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In Fenderson v. West, 12 Vet. App. 119 (1999), the United States Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. Cf. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In Fenderson, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127. See also Hart v. Mansfield, 21 Vet. App. 505 (2007) (where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible). In DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court held that for disabilities evaluated on the basis of limitation of motion, VA was required to apply the provisions of 38 C.F.R. §§ 4.40, and 4.45, pertaining to functional impairment. The Court instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, or incoordination. Such inquiry was not to be limited to muscles or nerves. These determinations were, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, or incoordination. Diagnostic Codes 8520-8730 address ratings for paralysis of the peripheral nerves affecting the lower extremities, neuritis, and neuralgia. 38 C.F.R. § 4.124a, Diagnostic Codes 8520-8730. Diagnostic Codes 8520, 8620, and 8720 provide ratings for paralysis, neuritis, and neuralgia of the sciatic nerve. 38 C.F.R. § 4.124a. Disability ratings of 10, 20, and 40 percent are warranted, respectively, for mild, moderate, and moderately severe incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8520. A disability rating of 60 percent is warranted for severe incomplete paralysis with marked muscle atrophy. Id. An 80 percent rating is warranted with complete paralysis of the sciatic nerve. Id. The term "incomplete paralysis," with respect to peripheral nerve injuries, indicates 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 lesion or to partial regeneration. Where the involvement is wholly sensory, the rating should be for mild, or at the most, moderate symptomatology. 38 C.F.R. § 4.124a (2012). Arthritis due to trauma is rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Degenerative arthritis established by x-ray findings is rated according to limitation of motion for the joint or joints involved. Where limitation of motion is noncompensable, a rating of 10 percent is assigned for each major joint or group of minor joints affected by 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 a 10 percent rating is assigned where there is x-ray evidence of involvement of two or more major joints, or two or more minor joint groups; and a 20 percent evaluation is assigned where there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012). Under Diagnostic Code 5271, limited motion of the ankle, a 10 percent disability rating is warranted for moderate limitation of motion of the ankle, and a 20 percent disability rating is warranted for marked limitation of motion of the ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2012). 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 (2012). It should also be noted that use of descriptive terminology such as "mild" by medical examiners, 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 U.S.C.A. § 7104(a) (West 1991); 38 C.F.R. §§ 4.2, 4.6 (2012). Full range of motion of the ankle is measured from zero to 20 degrees in dorsiflexion, and zero to 45 degrees in plantar flexion. 38 C.F.R. § 4.71, Plate II (2012). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the veteran. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), it was observed that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis Peripheral Neuropathy of the Right Lower Extremity The Board has carefully reviewed the lay and medical evidence of record and finds that the preponderance of the evidence is against the assignment of an initial evaluation in excess of 10 percent for the service-connected peripheral neuropathy of the right lower extremity for the entire appeal period. The weight of the lay and medical evidence of record, including VA treatment records and reports of VA examinations, shows that the service-connected peripheral neuropathy of the right lower extremity is manifested by neuralgia, not paralysis. The evidence of record shows that the nerve involvement has been wholly sensory. The March 2008 VA peripheral nerves examination indicates that the Veteran reported having decreased sensation and numbness in the right foot and it was progressively worse. Sensory examination revealed normal vibration and decreased light touch in the right foot. Physical examination revealed that the right knee reflex was 2/2 and the right ankle reflex was 2/2. There was no muscle atrophy, abnormal muscle tone, tremors, or abnormal movement. The function of the joints of the right lower extremity were not affected. Gait and balance were normal. The examiner indicated that the nerve dysfunction was neuralgia, moderate, and it was sensory only. The examiner indicated that there was no nerve paralysis or neuritis. The June 2010 VA peripheral nerve examination indicates that there was decreased sensation to pinprick and fine touch on the entire right foot, plantar and dorsal. Reflexes in the right knee and ankle were 2/2. Vibratory senses was equal. Motor examination was 5/5. There was normal muscle tone. There were no findings of atrophy, abnormal gait, tremors, imbalance, or fasciculations. A disability rating in excess of 10 percent is not warranted for the service-connected peripheral neuropathy of the right lower extremity for the entire appeal period. The medical evidence shows that the peripheral neuropathy of the right lower extremity is manifested by numbness and sensory loss in the right foot. The Board finds that the disability picture more closely approximates mild incomplete paralysis or mild impairment. The Board notes that in rating diseases of the peripheral nerves, when the nerve involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. Words such as "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 (2012). The use of terminology such as "severe" by VA examiners and others, although 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. As discussed above, the weight of the lay and medical evidences shows that the service-connected peripheral neuropathy of the right lower extremity is manifested by wholly sensory manifestations affecting the right foot. The sensory changes are decreased sensation and numbness to the right foot. The March 2008 VA nerve examination report indicates that the examiner opined that the nerve dysfunction was moderate neuralgia. However, the Board finds that the weight of the lay and medical evidence demonstrates that the disability picture more closely approximates mild impairment. The examination reports show that there is no muscle atrophy, gait abnormality, tremors, or imbalance. The decreased sensation due to the peripheral neuropathy of the right lower extremity only affects the right foot. At the hearing in July 2009, the Veteran testified that the right leg condition results in symptoms of constant pain, tingling, numbness, and loss of sensation from his feet to his ankles. The weight of the lay and medical evidence does not show that the service-connected peripheral neuropathy of the right lower extremity causes moderate or severe impairment. As such, the Board concludes that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent under Diagnostic Code 8520 for radiculopathy of the right lower extremity, and the claim for a higher rating is denied. Right Ankle Degenerative Joint Disease The RO rated the Veteran's right ankle degenerative joint disease as 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5271, limitation of motion of the ankle. Under Diagnostic Code 5271, a 20 percent disability rating is warranted for marked limitation of motion of the ankle and the 20 percent rating is the highest schedular rating available under Diagnostic Code 5271. Thus, a disability rating in excess of 20 percent is not possible under Diagnostic Code 5271. A disability evaluation in excess of 20 percent is possible under Diagnostic Code 5270, ankylosis of the ankle. See 38 C.F.R. § 4.71a, Diagnostic Code 5270 (2012). However, ankylosis of the right ankle has not been demonstrated. The VA examination reports dated in December 2007 and June 2010 indicate that the Veteran was able to actively move his right ankle, although movement was limited. The evidence demonstrates that, despite pain, the Veteran has always had some motion of his right ankle. Therefore, a rating on the basis of ankylosis is not appropriate. A disability evaluation in excess of 20 percent is not warranted under Diagnostic Code 5270. The Board also has considered the other diagnostic code criteria pertaining to the ankle. A rating higher than 20 percent is not available under Diagnostic Codes 5272, ankylosis of subastragalar or tarsal joint, Diagnostic Code 5273, malunion of the os calcis or astragalus, or Diagnostic Code 5274, astragalectomy as none of these disabilities are shown. See 38 C.F.R. § 4.71a. Where a diagnostic code is predicated on loss of motion, VA must also consider 38 C.F.R. § 4.40, regarding functional loss due to pain, and 38 C.F.R. § 4.45, regarding weakness, fatigability, incoordination, or pain on movement of a joint. DeLuca, 8 Vet. App. at 204-207. However, since a 20 percent evaluation has been granted for the Veteran's service-connected right ankle disability, and since this is the maximum available schedular rating under Diagnostic Code 5271, the Veteran is not entitled to a higher rating pursuant to 38 C.F.R. §§ 4.40 and 4.45. See the Court's holding in Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The Court clarified that, although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that, pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The Board finds that during the entire period of appeal, the right ankle disability is not shown to produce functional impairment that would warrant a rating higher than 20 percent and the currently assigned 20 percent rating contemplates the current level of functional impairment of the right ankle. The December 2007 and the June 2010 VA examination reports indicate that there was no additional limitation of motion due to pain, fatigue, weakness, lack of endurance, or incoordination including following repetitive use; there was no objective evidence of painful motion on the right or objective evidence of pain following repetitive motion. At the hearing before the Board in July 2009 and upon VA examination in June 2010, the Veteran reported having increased pain due to the right ankle disability. At the hearing before the Board in July 2009, the Veteran indicated that the right ankle pain was an 8 or 9 out of 10 (10 the worst pain). He stated that in the mornings, the pain was a 10. He indicated that the pain increased as he used his right ankle. The Veteran reported that same degree of pain upon VA examination in January 2005; he reported that the right ankle disability was an 8 to 9 out of a 10 and at times, it was a 10 out of 10. He reported that the pain was daily and he was unable to walk more than a block. The Board finds that the degree of functional impairment of the right ankle due to pain has not changed since the 20 percent rating was initially assigned. Further, the June 2010 VA examination report indicates that the Veteran started taking medication for the pain and he had a good response to treatment. The June 2010 VA examination report indicates that dorsiflexion of the right ankle increased 2 degrees and plantar flexion only decreased by 10 degrees; the Veteran had full plantar flexion of the right ankle upon VA examination in December 2007. The June 2010 VA examination report also indicates that the Veteran reported that he was only able to walk 50 years but it was further noted that this was due to a left foot condition. The June 2010 VA examination report also indicates that the Veteran reported that he missed four months of work in the past 12 months due to the right ankle pain. The Board finds that the 20 percent rating contemplates the pain due to the right ankle degenerative joint disease. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In summary, a disability evaluation in excess of 20 percent for the service-connected right ankle disability is not warranted at any time during the appeal period, for the reasons and bases described above. The Board concludes that the preponderance of the evidence is against the Veteran's claim for a disability evaluation in excess of 20 percent for the service-connected right ankle disability. The benefit sought on appeal is accordingly denied. Extraschedular Finally, the Board has considered whether referral for an extraschedular evaluation is warranted. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). If the criteria reasonably describe the veteran's disability level and symptomatology, then the veteran's disability picture is contemplated by the rating schedule and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate a veteran's level of disability and symptomatology and is found inadequate, it must determine whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has 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 for completion of the third step, a determination of whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. As discussed, the Veteran's service-connected right ankle disability has been manifested by pain, painful motion, and limitation of motion of the right ankle. These symptoms or impairments due to the right ankle disability are contemplated by the rating schedule, and the assigned schedular evaluations, therefore, are adequate. The rating criteria reasonably describe his disability level and symptomatology, and provide for higher ratings for additional or more severe symptoms than currently shown by the evidence. The rating criteria for right ankle disabilities contemplate limitation of motion of the ankle including due to pain and other orthopedic factors which are incorporated into the schedular rating criteria (see 38 C.F.R. §§ 4.21 , 4.40, 4.45, 4.59; DeLuca). Hence, as the schedular rating reasonably describes the Veteran's disability picture, referral for extraschedular consideration is not warranted. The Veteran's service-connected peripheral neuropathy of the right lower extremities is manifested by wholly sensory changes or manifestations. These symptoms or impairments are contemplated by the rating schedule, and the assigned schedular evaluation, therefore, is adequate. The rating criteria reasonably describe his disability level and symptomatology, and provide for higher ratings for additional or more severe neuropathy symptoms than currently shown by the evidence. The rating criteria for peripheral neuropathy contemplate different degrees of paralysis including complete paralysis of the nerve in question. Hence, as the schedular rating reasonably describes the Veteran's disability picture, referral for extraschedular consideration is not warranted. A comparison between the level of severity and symptomatology of the Veteran's right lower extremity peripheral neuropathy with the established criteria found in the rating schedule for diseases of the peripheral nerves shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. For this reason, the disability picture is contemplated by the Rating Schedule, and the assigned schedular ratings are, therefore, adequate. The Board therefore has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted. ORDER Entitlement to an initial disability evaluation in excess of 10 percent for peripheral neuropathy of the right lower extremity is denied. Entitlement to a disability evaluation in excess of 20 percent for degenerative joint disease of the right lower extremity is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs