Citation Nr: 1331067	
Decision Date: 09/26/13    Archive Date: 09/30/13

DOCKET NO.  09-03 579	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Entitlement to an initial compensable disability rating for status post hammertoe deformity of the left little toe.

2.  Entitlement to an initial compensable disability rating for status post hammertoe deformity of the right little toe.

3.  Entitlement to an initial compensable disability rating for status post plantar fasciotomy of the left foot with arthritis prior to November 3, 2010, and a disability rating in excess of 10 percent since.

4.  Entitlement to an initial compensable disability rating for status post Brostrom reconstruction of the lateral ligaments of the right ankle prior to June 20, 2007, and a disability rating in excess of 10 percent since.

5.  Entitlement to an initial disability rating in excess of 10 percent for chondromalacia of the right knee with arthritis. 

6.  Entitlement to an initial compensable disability rating for carpel tunnel syndrome of the right hand prior to April 2, 2010, a disability rating in excess of 10 percent from April 2, 2010 to August 3, 2012, and a rating in excess of 30 percent from August 4, 2012, forward.

7.  Entitlement to an initial compensable disability rating for carpel tunnel syndrome of the left hand prior to April 2, 2010, and a disability rating in excess of 10 percent since.

8.  Entitlement to an initial noncompensable disability rating for arthritis of the acromioclavicular (AC) joint of the right shoulder prior to January 28, 2008, and a disability rating in excess of 10 percent since.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

A. Spector, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the military from September 1985 until retiring in October 2005.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which granted service connection for chondromalacia, status post right knee surgery with arthritis, and assigned a 10 percent disability rating; right shoulder AC joint arthritis and assigned a noncompensable rating; status post Brostrom reconstruction of lateral ligaments, right ankle and assigned a noncompensable disability rating; status post hammertoe of the little toe of the left and right feet and assigned a noncompensable rating; carpel tunnel of the left and right hands and assigned noncompensable ratings; and status post plantar fasciotomy, left foot with arthritis and assigned a noncompensable disability rating.  All grants of service connection were made effective November 1, 2005.  The Veteran filed a notice of disagreement (NOD) with these determinations in September 2006.  In a September 2006 rating decision, the RO increased the Veteran's disability rating for a right ankle disability to 10 percent, effective June 20, 2007.  The Veteran timely perfected her appeal in October 2007.  The RO in Nashville, Tennessee currently holds jurisdiction over the claims.

In a May 2008 rating decision, the RO increased the Veteran's disability rating for right shoulder AC joint arthritis to 10 percent, effective January 28, 2008; continued noncompensable disability ratings for status post hammertoe of the little toe of the left and right feet, carpel tunnel of the left and right hands, and status post plantar fasciotomy, left foot with arthritis; and continued a 10 percent disability rating for chondromalacia, status post right knee surgery with arthritis.

In January 2010, the Veteran provided testimony before the Board limited to the issue as to whether she had filed a timely substantive appeal with regard to the initial rating issues listed on the title page.  A Board decision in February 2012 ultimately decided that the Veteran had timely appealed her initial rating claims.  At that time, the case was remanded to accommodate the Veteran's request for a Travel Board hearing regarding the merits of her claims.

In a July 2010 rating decision, the RO increased the Veteran's disability ratings for carpel tunnel of both the left and right hands to 10 percent, effective April 2, 2010, and continued noncompensable disability ratings for status post hammertoe of the little toe of the left and right feet.

In a March 2011 rating decision, the RO increased the Veteran's disability rating for status post plantar fasciotomy, left foot with arthritis to 10 percent, effective November 3, 2010. 

In March 2012, the Veteran testified before the undersigned Veterans Law Judge regarding the merits of her claims.  A copy of the hearing transcript is associated with the claims folder.  As the prior Board hearing did not involve any testimony regarding the merits of the claims, the claims may be decided by a single VLJ.  38 U.S.C.A. § 7102.  There is no need for additional hearing before another VLJ.  See generally Arneson v. Shinseki, 24 Vet. App. 379 (2011).

In July 2012, the Board remanded this case for further examination.  This development has now been completed and the issues of increased ratings for a right ankle disability, right knee disability, carpel tunnel of the left and right hands, and a right shoulder disability on appeal are ready for review.  Regrettably, as outlined below, the issues of increased ratings for hammertoes of the right and left little toes and status post plantar fasciotomy of the left foot with arthritis are remanded for additional development.

In a March 2013 rating decision, the Appeals Management Center (AMC) increased the Veteran's disability rating for carpal tunnel syndrome of the right hand due to median nerve neuropathy to 30 percent, effective August 4, 2012. 

The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the above claims.  A review of the documents in such file reveals that there are additional VA treatment records related to the Veteran's claims on appeal.  These records have been reviewed and considered by the Board.

The issues of increased ratings for hammertoes of the right and left little toes and status post plantar fasciotomy of the left foot with arthritis are addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  Throughout the course of the appeal, the Veteran's status post Brostrom reconstruction of the lateral ligaments of the right ankle has been manifested by pain and limitation of motion that amounts to no more than a moderate ankle disability.

2.  Throughout the course of the appeal, the Veteran's right knee disability has been manifested by degenerative changes of the joint shown on x-ray. 

3.  At no point during the appeal has the Veteran's right knee been ankylosed; nor has there been objective evidence of dislocated semilunar cartilage with frequent episodes of "locking," pain and effusion, recurrent subluxation or lateral instability, flexion limited to less than 110 degrees, extension limited to more than 5 degrees, or evidence of malunion of the tibia or fibula or genu recuvatum.

4.  Throughout the entire period of appeal, i.e., since November 1, 2005, the Veteran's service-connected carpal tunnel syndrome of the right hand is shown to be productive of no more than moderate incomplete paralysis of the median nerve, as shown on electromyography (EMG) studies, with complaints of hand numbness, pain, weakness, and tingling.

5.  Throughout the entire period of appeal, i.e., since November 1, 2005, the Veteran's service-connected carpal tunnel syndrome of the left hand is shown to be productive of no more than mild incomplete paralysis of the median nerve, as shown on EMG studies, with complaints of hand numbness, pain, weakness, and tingling.

6.  Prior to January 28, 2008, the Veteran's right shoulder disability was manifested by degenerative changes of the joint shown on x-ray, but no evidence of painful or limited motion.  

7.  Since January 28, 2008, the Veteran's right shoulder disability was manifested by degenerative changes of the joint shown on x-ray, with satisfactory evidence of painful and limited motion.

8.  Throughout the course of the appeal, the Veteran's arthritis of the AC joint of the right shoulder did not display any ankylosis of the scapulohumeral articulation, arm limitation of motion at shoulder level, impairment of the humerus, or impairment of the clavicle or scapula.

9.  The competent and probative medical evidence of record does not show that the Veteran's service-connected right ankle disability, right knee disability, carpal tunnel of the left and right hands, and right shoulder disability are so exceptional or unusual that referral for extraschedular consideration by designated authority is required.


CONCLUSIONS OF LAW

1.  The criteria for an initial disability rating of 10 percent, but no higher, for status post Brostrom reconstruction of the lateral ligaments of the right ankle since November 1, 2005, have been met.  38 U.S.C.A. §§ 1155 , 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 , 3.159, 4.71a, Diagnostic Code 5271 (2012).

2.  The criteria for an increased disability rating in excess of 10 percent for status post Brostrom reconstruction of the lateral ligaments of the right ankle have not been met.  38 U.S.C.A. §§ 1155 , 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 , 3.159, 4.71a, Diagnostic Code 5271 (2012).

3.  The criteria for an initial disability rating in excess of 10 percent for chondromalacia of the right knee with arthritis have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, Diagnostic Code 5003 (2012).

4.  The criteria for an initial disability rating of 30 percent, but no higher, for carpal tunnel of the right hand since November 1, 2005, have been met.  38 U.S.C.A. §§ 1155 , 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.321 , 4.1, 4.3, 4.7, 4.120, 4.123, 4.124, 4.124a, Diagnostic Code 8515 (2012).

5.  The criteria for an increased disability rating in excess of 30 percent for carpal tunnel of the right hand, have not been met.  38 U.S.C.A. §§ 1155 , 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.321 , 4.1, 4.3, 4.7, 4.120, 4.123, 4.124, 4.124a, Diagnostic Code 8515 (2012).

6.  The criteria for an initial disability rating of 10 percent, but no higher, for carpal tunnel of the left hand since November 1, 2005, have been met.  38 U.S.C.A. §§ 1155 , 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.321 , 4.1, 4.3, 4.7, 4.120, 4.123, 4.124, 4.124a, Diagnostic Code 8515 (2012).

7.  The criteria for an increased disability rating in excess of 10 percent for carpal tunnel of the left hand, have not been met.  38 U.S.C.A. §§ 1155 , 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.321 , 4.1, 4.3, 4.7, 4.120, 4.123, 4.124, 4.124a, Diagnostic Code 8515 (2012).

8.  The criteria for an initial compensable disability for arthritis of the AC joint of the right shoulder prior to January 28, 2008, have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, 4.73, Diagnostic Codes 5003, 5200-5203 (2012).

9.  The criteria for an increased disability rating in excess of 10 percent for arthritis of the AC joint of the right shoulder since January 28, 2008, have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, 4.73, Diagnostic Codes 5003, 5200-5203 (2012).

10.  Application of the extraschedular rating provisions is not warranted in this case.  38 C.F.R. § 3.321(b) (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duty 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; 38 U.S.C.A. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her 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).  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).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

The Veteran's claims arise from her disagreement with the initial evaluation assigned following the grant of service connection for her claimed disabilities noted above.  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), Goodwin v. Peake, 22 Vet. App.  128, 134 (2008), Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  Therefore, no further notice is required for these claims.   

VA must also make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claim for the benefit sought unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  This duty includes assisting with the procurement of relevant records, including pertinent treatment records, and providing an examination when necessary.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

The VA has also done everything reasonably possible to assist the Veteran with respect to her claims for benefits, such as obtaining private and VA medical records and providing the Veteran with VA examinations in September 2005, June 2007, May 2008, May 2010, June 2010, November 2010, August 2012, and January 2013.  In April 2013, the Veteran indicated that she did not have any additional evidence regarding her appeal.  As the Veteran has not indicated that she has received additional treatment for the issues on appeal, the Board thus concludes that there are no additional treatment records outstanding with respect to these claims.  Consequently, the duty to notify and assist has been satisfied as to the claim now being finally decided on appeal.  Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). 

II. Initial Increased Ratings

Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012).  Where there is a question as to which of two ratings shall 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 (2012).

Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity.  Separate diagnostic codes identify the various disabilities.  38 C.F.R. § Part 4 (2012).  Where there is a question as to which of two ratings shall 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 (2012).

In Fenderson v. West, 12 Vet. App 119 (1999), the Court emphasized the distinction between a new claim for an increased evaluation of a service-connected disability and a case (such as this one) in which the Veteran expresses dissatisfaction with the assignment of an initial disability evaluation where the disability in question has just been recognized as service-connected.  VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim-a practice known as "staged rating."

Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided.  38 C.F.R. § 4.14.  It is possible, however, for a Veteran to have separate and distinct manifestations attributable to the same injury, which would permit a rating under several diagnostic codes.  The critical element permitting the assignment of multiple ratings under several diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition.  Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

The Board has reviewed all of the evidence in the Veteran's claims file, including her VA treatment records, private treatment records, VA examination reports, and statements submitted in support of her claims.  In this regard, the Board notes that, although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, all of the extensive evidence of record.  Indeed, it has been held that while the Board must review the entire record, it need not discuss each piece of evidence in rendering a decision.  See Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007); Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board's analysis will focus specifically on the evidence that is needed to substantiate the Veteran's claims for increased disability ratings for post hammertoe deformity of the left and right little toe, plantar fasciotomy of the left foot with arthritis, status post Brostrom reconstruction of the lateral ligaments of the right ankle, chondromalacia of the right knee with arthritis, carpel tunnel syndrome of the left and right hands, and arthritis of the AC joint of the right shoulder.  

A. Brostrom reconstruction of the Lateral Ligaments of the Right Ankle

The Veteran was initially granted service connection and assigned a noncompensable disability rating for Brostrom reconstruction of the lateral ligaments of the right ankle, effective November 1, 2005, in accordance with the criteria set forth in the Schedule for Rating Disabilities, 38 C.F.R. Part 4.71a, Diagnostic Code (DC) 5271 (2012).  The Veteran's disability rating was subsequently increased to 10 percent, effective June 20, 2007.

Diagnostic Code 5271 provides ratings based on limitation of motion of the ankle.  A 10 percent rating is warranted for moderate limitation of motion.  A 20 percent rating is warranted for marked limitation of motion.  38 C.F.R. § 4.71a , DC 5271. 

Normal range of motion for the ankle is from 0 to 20 degrees dorsiflexion, and from 0 to 45 degrees plantar flexion.  38 C.F.R. § 4.71a , Plate II.

The words "moderate" and "marked" are not defined in the Schedule for Rating Disabilities.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence to arrive at an equitable and just decision.  38 C.F.R. § 4.6.  Of assistance in this regard is the fact "moderate" is generally defined as "tending toward the mean or average amount or dimension."  See Merriam-Webster 's at 798. "Marked" is generally defined as "having a distinctive or emphasized character."  Id. at 760.

Ankle disabilities may also be rated under Diagnostic Codes 5270, 5272, 5273, and 5274 (2012).  Under Diagnostic Code 5270, ankylosis of the ankle in plantar flexion less than 30 degrees, warrants a 20 percent rating; in plantar flexion between 30 degrees and 40 degrees, or in dorsiflexion between 0 degrees and 10 degrees, warrants a 30 percent rating; and in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion or eversion deformity, warrants a 40 percent rating.  Under Diagnostic Code 5272, ankylosis of the subastragalar or tarsal joint in good weight-bearing position warrants a 10 percent rating, and in poor weight-bearing position, warrants a 20 percent rating.  Under Diagnostic Code 5273, malunion of the os calcis or astragalus with moderate deformity warrants a 10 percent rating, and with marked deformity, warrants a 20 percent rating.  Finally, Diagnostic Code 5274 provides a 20 percent for astragalectomy.

Consideration of a higher rating for functional loss, to include during flare ups, due to these factors accordingly is warranted for Diagnostic Codes predicated on limitation of motion.  38 C.F.R. §§ 4.40 , 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).  Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse.  38 C.F.R. § 4.45.  Pain itself does not constitute functional loss, and painful motion does not constitute limited motion for the purposes of rating under Diagnostic Codes pertaining to limitation of motion.  Mitchell v. Shinseki, 25 Vet. App. 32 (2011).  Pain indeed must affect the ability to perform normal working movements with normal excursion, strength, speed, coordination, or endurance in order to constitute functional loss.  Id.  

Turning to the evidence of record, the Veteran was first afforded a VA examination in September 2005.  She reported such symptoms as swelling and pain, which occurred constantly.  Her condition did not cause incapacitation.  There was no functional impairment resulting from her ankle condition.  Range of motion testing showed dorsiflexion of 15 degrees with pain, and plantar flexion of 45 degrees.  Joint function was additionally limited by pain after repetitive use.  The joint function was not additionally limited after repetitive use testing by fatigue, weakness, lack of endurance, or incoordination.  The examiner noted that the Veteran was limited by 10 degrees on the right side because she suffered from persistent pain and loss of stability of the right ankle secondary to chronic pain in the lateral malleolus and instability of the right anterior fibulotalar ligament.  Right ankle x-rays were within normal limits.  The examiner noted that there was no right ankle diagnosis at that time.  

The Veteran was afforded a VA examination for her right ankle in June 2007.  She had a history of Brostrom reconstruction, which was reconstruction for ankle instability, in 2005 prior to discharge from service.  She currently reported having pain in the ankle of 4 out of 10, which was present everyday for several hours at a time.  She also had a history of popping and swelling.  The pain increased and flared up to a 10 when she twisted her ankle.  She did not have an assistive device and could walk several blocks without difficulty.  She did not have any problems with activities of daily living.  She worked both in office work, as well as a cashier where she had to stand.  She said that her ankle had gotten to the point where she had to sit down to answer the phone.  She had not seen an orthopedic doctor in more than a year.  There were no other flare-ups other than the ones described.    

Upon examination, the Veteran had normal strength in all muscle groups to include ankle plantar flexion, dorsiflexion, inversion and eversion.  Ankle range of motion was dorsiflexion of 10 degrees and plantar flexion of 40 degrees.  The active and passive ranges of motion were the same.  There was no change with repetition and no pain with motion.  There was no tibotalar crepitus on range of motion.  She was mildly tender to palpation over the lateral malleolus.  There was a 5 cm longitudinal incision over the lateral malleolus.  It appeared well-healed, no sign of infection, and no fixed to underlying tissue.  There was no erythema, edma, or discharge.  There was no crepitus or instability.  She was nontender to palpation at the medial aspect of the ankle.  She had negative talar tilt.  There was very good stability with talar tilt.  The anterior drawer test was negative as well.  The posterior tibialis tendons were intact and nontender to palpation.  The axis of the Achilles tendon was in line with the axis of the tibia.  There was no evidence of abnormal weight bearing.  There were no callosities present.  There were no other gross abnormalities noted.  X-rays of the ankle revealed no fracture, dislocation or bony destructive lesion.  There was a metallic anchor in the distal aspect of the lateral malleolus.  The ankle was well reduced and the joint space was well maintained.  The assessment was noted to be ankle instability, status post Brostrom reconstruction of the right ankle, with good ankle stability and continued pain with minor residual deficit.  To address the DeLuca provisions, there was mild discomfort associated with examination of the right ankle.  It was conceivable that pain could further limit function as described, particularly with repetition.   It was not feasible to attempt to express this in terms of any additional limitation of motion, as these matters cannot be determined with any degree of medical certainty.  

May 2008 x-rays of the right ankle show that her suture anchor on the tip of the lateral malleolus consistent with previous Brostrom procedure.  There were no joint space abnormalities or arthritis noted.  

The Veteran was afforded a VA examination in August 2012.  The Veteran reported repeated ankle sprains while playing softball in the military, and now had continued ankle pain and swelling.  She underwent ankle surgery in 2005.  The Veteran reported flare-ups with prolonged walking or standing.  Range of motion testing showed right ankle plantar flexion of 30 degrees with pain and dorsiflexion of 10 degrees with pain.  The Veteran was able to perform repetitive-use testing with three repetitions, without additional limitation of motion.  The Veteran was noted to have function loss of the right ankle due to limited movement and pain on motion.  She was also noted to have localized tenderness or pain on palpation of joints/soft tissue.  Additionally, the Veteran had normal muscle strength.  She did not display joint instability or ankylosis.  Additionally, the Veteran has not been shown to have shin splints, stress fractures, Achilles tendonitis, Achilles tendon rupture, malunion of calcaneus or talus, or talectomy.  The Veteran did not have a total ankle joint replacement, but had a Brostrom reconstruction in September 2005.  The Veteran did not have any surgical scars.  The Veteran reported regular use of an ankle brace.  X-rays of the right ankle show hardware is intact from previous surgery.  The Veteran reported that her right ankle impacts her ability to work because she is unable to perform activity that required prolonged standing or walking.

After a review of the evidence of record, the Board finds that the Veteran's right ankle disability has been found to display the criteria contemplated by a 10 percent rating under DC 5271: moderate ankle limitation of motion.  

The Veteran reported persistent pain and loss of stability of the right ankle, along with limitation of motion.  Additionally, the Veteran reported flare-ups with prolonged walking or standing.  Therefore, the preponderance of the evidence shows that the Veteran has moderate ankle limitation of motion.

While she meets the criteria for a 10 percent rating, the Board has determined that she does not meet the criteria for the next higher 20 percent rating under DC 5271 for ankle limitation of motion.  The Veteran's right ankle manifests limitation of motion most appropriately characterized as moderate rather than marked pursuant to Diagnostic Code 5271.  Even taking into account DeLuca, Mitchell and associated regulations, throughout range of motion testing, the Veteran's dorsiflexion has not been limited to less than 10 degrees and plantar flexion has not been limited to less than 30 degrees.  As noted above, normal range of motion for the ankle is from 0 to 20 degrees dorsiflexion, and from 0 to 45 degrees plantar flexion.  38 C.F.R. § 4.71a , Plate II.  

While the Veteran does experience ankle pain, the pain does not raise to the level of a marked limitation of motion of the ankle under Diagnostic Code 5271.  See Mitchell v. Shineski, 25 Vet. App. 32, 43 (2011) (pain must affect some aspect of normal movement in order to constitute functional loss under 38 C.F.R. § 4.40 ).  Further, joint function was not additionally limited by fatigue, weakness, lack of endurance, or incoordination after repetitive use testing.  

The Board has also considered the additional diagnostic codes pertaining to ankle disabilities.  Diagnostic Codes 5270 and 5272 concern ankylosis, which was not noted upon examination.  See Dorland's at 94 (defining ankylosis as immobility and consolidation of a joint).  As discussed in the VA examination reports, the Veteran demonstrated range of motion in both directions.  Additionally, the August 2012 VA examiner specifically noted that the Veteran did not have right ankle ankylosis.  DC 5273 pertains to malunion of os calcis or astragalus, which the evidence also shows the Veteran does not have.  Her x-rays of the right ankle showed no significant degenerative change or acute fracture.  The final DC is for astragalectomy, a surgical procedure for which there is no indication the Veteran has undergone.  Therefore, the Veteran is not entitled to an increased rating under DC 5270, 5272, 5273, or 5274.

Additionally, at the most recent August 2012 VA examination, the VA examiner noted that the Veteran did not have any surgical scars.  However, the Board acknowledges that at the June 2007 VA examination, the Veteran was found to have a 5 cm longitudinal incision over the lateral malleolus.  The Board recognizes that under certain circumstances, assigning a separate rating for a scar would not violate the rule against pyramiding.  Esteban, 6 Vet. App. 259.  Nevertheless, as stated in the June 2007 VA examination report, the Veteran's scar appeared well-healed, there was no sign of infection, and was not fixed to underlying tissue.  Additionally, the scar had not been shown to be at least 144 square centimeters, or at least 39 square centimeters and deep and nonlinear, or unstable.  Therefore, the Board finds that the relevant diagnostic criteria do not provide for a separate compensable rating for post surgical scars on the right ankle.  38 C.F.R. § 4.118, DCs 7801, 7802, 7804. 

The Veteran's right ankle symptoms justify assigning a higher disability rating of 10 percent throughout the entire period of appeal.  Mauerhan v. Principi, 16 Vet. App. 436 (2002).  The Veteran has had ongoing right ankle symptoms since her service connection claim was granted, and has continued to receive treatment for this disability.  Therefore, it is reasonable to conclude that her right ankle disability has not changed over the years since service.  The Board has considered staged ratings under Hart v. Mansfield, 21 Vet. App. 505 (2007), but concludes that they are not warranted.  

All reasonable doubt has been resolved in favor of the Veteran in making this decision.  The evidence is for the assignment of a higher 10 percent rating throughout the entire period of appeal for the Veteran's right ankle disability.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  To the extent that the Veteran has contended that her right ankle disability is more severely impaired than the rating assigned, the preponderance of the evidence is against the claim; and the benefit of the doubt doctrine is not applicable.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

B. Chondromalacia of the Right Knee with Arthritis

The Veteran was initially granted service connection and assigned a 10 percent disability rating for chondromalacia of the right knee with arthritis, effective November 1, 2005, in accordance with the criteria set forth in the Schedule for Rating Disabilities, 38 C.F.R. Part 4.71a, Diagnostic Code (DC) 5003 (2012).  

Diagnostic Code 5003 provides that degenerative arthritis that is established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.

When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate diagnostic codes, Diagnostic Code 5003 provides a rating of 10 percent for each such major joint (like the knee, see 38 C.F.R. § 4.45) 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.

When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under these codes.  38 C.F.R. § 4.71a.

That said, Diagnostic Code 5260 provides ratings based on limitation of flexion of the leg.  Flexion of the leg limited to 60 degrees is rated noncompensably (0 percent) disabling; flexion of the leg limited to 45 degrees is rated 10 percent disabling; flexion of the leg limited to 30 degrees is rated 20 percent disabling; and flexion of the leg limited to 15 degrees is rated 30 percent disabling.  38 C.F.R. § 4.71a.

Diagnostic Code 5261 provides ratings based on limitation of extension of the leg.  Extension of the leg limited to 5 degrees is rated noncompensably (0 percent) disabling; extension of the leg limited to 10 degrees is rated 10 percent disabling; extension of the leg limited to 15 degrees is rated 20 percent disabling; extension of the leg limited to 20 degrees is rated 30 percent disabling; extension of the leg limited to 30 degrees is rated 40 percent disabling; and extension of the leg limited to 45 degrees is rated 50 percent disabling.  38 C.F.R. § 4.71a.

Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion.  38 C.F.R. § 4.71, Plate II.

The Board points out that separate ratings may be granted based on limitation of flexion (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261) of the same knee joint).  See VAOPGCPREC 09-04 (September 17, 2004).

When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse.  38 C.F.R. § 4.45.

Diagnostic Code 5256 provides ratings for ankylosis of the knee.  Favorable ankylosis of the knee, with angle in full extension, or in slight flexion between zero degrees and 10 degrees, is rated 30 percent disabling.  Unfavorable ankylosis of the knee, in flexion between 10 degrees and 20 degrees, is to be rated 40 percent disabling; unfavorable ankylosis of the knee, in flexion between 20 degrees and 45 degrees, is rated 50 percent disabling; and extremely unfavorable flexion at an angle of 45 degrees or more, is to be rated 60 percent disabling.  38 C.F.R. § 4.71a.

Diagnostic Code 5257 provides ratings for other impairment of the knee that includes recurrent subluxation or lateral instability.  Slight recurrent subluxation or lateral instability of the knee is rated 10 percent disabling; moderate recurrent subluxation or lateral instability of the knee is rated 20 percent disabling; and severe recurrent subluxation or lateral instability of the knee is rated 30 percent disabling.  38 C.F.R. § 4.71a.  

Separate disability ratings are possible for arthritis with limitation of motion under Diagnostic Code 5003 and instability of a knee under Diagnostic Code 5257.  See VAOPGCPREC 23-97.  When x-ray findings of arthritis are present and a Veteran's knee disability is rated under Diagnostic Code 5257, the Veteran would be entitled to a separate compensable rating under Diagnostic Code 5003 if the arthritis results in noncompensable limitation of motion or objective findings or indicators of pain.  See VAOPGCPREC 9-98.

Diagnostic Code 5258 provides a 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint.  38 C.F.R. § 4.71a.

Diagnostic Code 5259 provides a 10 percent rating for removal of semilunar cartilage that is symptomatic.  38 C.F.R. § 4.71a.

Diagnostic Code 5262 provides ratings based on impairment of the tibia and fibula.  Malunion of the tibia and fibula with slight knee or ankle disability is rated 10 percent disabling; malunion of the tibia and fibula with moderate knee or ankle disability is rated 20 percent disabling; and malunion of the tibia and fibula with marked knee or ankle disability is rated 30 percent disabling.  Nonunion of the tibia and fibula with loose motion, requiring a brace, is rated 40 percent disabling.  38 C.F.R. § 4.71a.

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

Turning to the evidence of record, the Veteran was first afforded a VA examination in September 2005.  She reported such symptoms as swelling and pain in the middle joint of the knee, which occurred constantly.  She stated that her condition did not cause incapacitation.  She did not have any current treatment, but had two ACL surgeries and 3 arthroscopic procedures of the knees.  She had a prosthetic implant of the right knee, which she had since 2005.  There was weakness of the implanted joint.  The symptoms were weakness, pain, and swelling.  Her functional impairment included pain with certain movements and the inability to run.  Range of motion testing showed flexion of 140 degrees, with pain beginning at 120 degrees, and extension of 0 degrees.  The joint function was additionally limited by pain after repetitive use testing.  The joint function on the right was not additionally limited by fatigue, weakness, lack of endurance, or incoordination after repetitive use testing.  The drawer test and McMurray's test of the right knee were within normal limits.  Right knee x-rays showed degenerative arthritic changes, mild degenerative change in the medial compartment of the knee.  The examiner diagnosed the Veteran with bilateral chondromalacia, status post right knee surgery with arthritis. 

The Veteran was afforded a VA examination in May 2008. She reported knee pain that was 7 out of 10.  She stated that occasionally her knee would lock up on her.  She occasionally would wear a neoprene knee sleeve, which did give her some relief.  She could walk approximately 15 minutes and one to two blocks prior to having to stop secondary to knee pain.  Flare-ups were related to walking, standing for prolonged periods, or running.  Treatment included physical therapy, injections, and medicine.  Her knee did not affect her activities of daily living as she was able to take care of herself.  It did affect her current job as an administrative assistant and a cashier if she had to stand for prolonged periods of time.  Range of motion testing showed right knee extension of 0 degrees and flexion of 120 degrees, with mild pain.  She had no increased pain or decreased motion with repetitive motion testing.  Additionally, she had palpable crepitation of her knee with range of motion.  Knee ligaments were stable to testing.  She also had well healed scars from previous knee surgeries.  

December 2009 x-rays of the right knee show postsurgical and degenerative changes of the knee.  

The Veteran was afforded a VA examination in August 2012.  The examiner noted a diagnosis of right knee osteoarthritis and patellofemoral syndrome.  She reported knee pain with going up and down stairs or prolonged sitting.  She reported flare-ups with activity and prolonged walking or standing.  Upon range of motion testing, the Veteran had right knee flexion of 110 degrees with painful motion and extension of 5 degrees with painful motion.  The Veteran was able to perform repetitive use testing with three repetitions.  The examiner noted that after repetitive use testing the Veteran had additional limitation of range of motion and pain with motion.  The Veteran had post-test flexion of 110 degrees and extension of 5 degrees.  The Veteran had tenderness or pain to palpation for joint line or soft tissue of the knee.  Additionally, she had normal muscle strength.  The anterior (Lachman test), posterior (posterior drawer test), and medial-lateral (valgus/varus test) stability tests were found to be normal.  The Veteran did not have a history of recurrent patellar subluxation/dislocation, shin splints (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment.  The examiner noted a history of a right knee meniscal tear, frequent episodes of joint pain and effusion, resulting in a meniscectomy.  The residual symptoms of the meniscectomy were continued pain and swelling.  The Veteran was noted to have no scars related to her right knee condition.  The Veteran wore an assistive brace constantly for her right knee.  Imaging studies documented arthritis, however there was no patellar subluxation seen.  The Veteran's knee impacted her ability to work due to the fact she was unable to perform activities that required prolonged walking or standing.  

In light of the evidence, the Veteran is not entitled to an increased disability rating in excess of 10 percent for chondromalacia of the right knee with arthritis.  The Veteran's chondromalacia of the right knee with arthritis is rated under Diagnostic Code 5003.  As stated above, when there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate diagnostic codes, Diagnostic Code 5003 provides a rating of 10 percent for each such major joint (like the knee, see 38 C.F.R. § 4.45) 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.

At all relevant points of the claims period, the Veteran has not had motion limited to less than 110 degrees of her right knee.  However, to receive a 20 percent rating, the Veteran's flexion must be limited to 30 degrees, by pain or otherwise.  Her motion has not been shown to be so limited.  Similarly, under Diagnostic Code 5261, limitation of extension to 15 degrees is required for a 20 percent rating.  However, the Veteran's extension of the right knee has showed no limitation higher than 5 degrees, due to pain or otherwise.  The Veteran's limitations of flexion and extension would be considered noncompensable under the appropriate diagnostic codes.  See 38 C.F.R. § 4.71a, DC 5260, 5261.

The Board has considered whether there is additional functional loss due to fatigability, incoordination, pain on movement, deformity, or atrophy of disuse, and notes that, throughout the appeal, the Veteran has reported having knee problems affecting her ability to stand for prolonged periods, walk distances, or climb stairs.  In this regard, the Board acknowledges that the Veteran experiences recurrent pain and swelling as a result of her right knee disability.  However, the severity of her right knee disability is contemplated in the current disability rating.  Moreover, even when considering pain and functional impairment, the Veteran's flexion of the right knee was only limited 110 degrees, and as such, her range of motion findings do not approach the criteria for a compensable rating under DC 5260 (i.e., 45 degrees of flexion).  

Accordingly, the Board finds that the current 10 percent rating for the Veteran's chondromalacia of the right knee with arthritis appears to be based upon painful motion.  See 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995).  As such, the pain experienced on motion has been considered in assigning the 10 percent evaluation and there is no additional documented range of motion lost that would warrant a higher rating due to pain.  Furthermore, while range of motion studies discussed above would result in noncompensable evaluations under the limitation of motion codes (i.e. Diagnostic Codes 5260 and 5261), motion of the knee is nevertheless limited, and there was evidence of degenerative disease on X-ray.  As such, a 10 percent evaluation is appropriate for the Veteran's right knee disability.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5003 (2012).

In addition to the ratings based on limitation of motion, a separate rating may be assigned for instability of the knee.  The Board has considered whether the Veteran is entitled to a separate rating for recurrent subluxation or lateral instability under DC 5257; however, there is no objective evidence of subluxation or instability.  The Board acknowledges that at the May 2008 VA examination, the Veteran reported that her knee would lock up on her and she would occasionally wear a neoprene knee sleeve.  However, the VA examiner noted that the knee ligaments were stable to testing.  Additionally, at the September 2005 VA examination the drawer and McMurray's tests of the Veteran's right knee were within normal limits. The August 2012 VA examiner noted that the anterior (Lachman test), posterior (posterior drawer test), and medial-lateral (valgus/varus test) stability tests of the Veteran's right knee were found to be normal.  Accordingly, a separate rating for instability or subluxation under DC 5257 is not warranted in this case.

The Board has also considered whether the Veteran is entitled to an increased rating for bilateral knee ankylosis, dislocation of the semilunar cartilage, symptomatic removal of the semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum.  

The Veteran is not entitled to an increased disability rating for removal of semilunar cartilage under DC 5259 or genu recurvatum under DC 5263.  The Board notes that the maximum rating allowed under DC 5259 and 5263 is a 10 percent rating.  Therefore, the Veteran would not be subject to a higher disability rating under these diagnostic codes. 

Additionally, the evidence of record fails to demonstrate such symptomatology as knee ankylosis, dislocation of the semilunar cartilage, or impairment of the tibia or fibula.  Specifically, the August 2012 VA examiner noted that the Veteran did not have a history of recurrent patellar subluxation/dislocation, shin splints (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment.  Additionally, VA examination reports and x-rays did not document any right knee ankylosis.  Therefore, the Veteran is not entitled to an increased rating under DC 5256, 5258, or 5262.

The Board acknowledges that, at the most recent August 2012 VA examination, the Veteran was not found to have any surgical scars. However, the May 2008 VA examiner noted that the Veteran had well healed surgical scars on the right knee.  The Board recognizes that, under certain circumstances, assigning a separate rating for a scar would not violate the rule against pyramiding.  Esteban, 6 Vet. App. 259.  Nevertheless, as stated in the May 2008 VA examination report, the Veteran's scar has not been shown to be at least 144 square centimeters, or at least 39 square centimeters and deep and nonlinear, or unstable.  Therefore, the Board finds that the relevant diagnostic criteria do not provide for a separate compensable rating for a right knee surgical scar.  38 C.F.R. § 4.118, DCs 7801, 7802, 7804. 

For the reasons and bases provided above, the preponderance of the evidence in this case is against the Veteran's claim for a disability rating in excess of 10 percent for chondromalacia of the right knee with arthritis.  See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997).  Accordingly, the Veteran's claim for an increased rating for chondromalacia of the right knee with arthritis is denied.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable.  Ortiz v. Principi, 274 F. 3d. 1361, 1365 (Fed. Cir. 2001). 

C. Carpel Tunnel Syndrome of the Left and Right Hand

The Veteran was initially granted service connection and assigned noncompensable disability ratings for carpel tunnel syndrome of the left and right hands, effective November 1, 2005, in accordance with the criteria set forth in the Schedule for Rating Disabilities, 38 C.F.R. Part 4.124a, Diagnostic Code (DC) 8515 (2012).  Subsequently, the Veteran's disability ratings for carpel tunnel syndrome of the left and right hands were increased to 10 percent, effective April 2, 2010.  Additionally, the Veteran's disability rating for carpel tunnel syndrome of the right hand was increased to 30 percent, effective August 4, 2012.  

The record here indicates that the Veteran is right handed.  Thus, the rating for the service-connected bilateral carpal tunnel syndrome is based on the right upper extremity being the major hand and the left upper extremity being the minor hand. 

Under Diagnostic Code 8515, mild incomplete paralysis warrants a 10 percent rating for the major and minor hands, moderate incomplete paralysis warrants a 30 percent rating for the major hand and 20 percent for the minor hand; and severe incomplete paralysis warrants a 50 percent rating for the major hand and 40 percent for the minor hand.  Additionally,  complete paralysis of the median nerve of the major hand with the hand inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand (ape hand); pronation incomplete and defective, absence of flexion of index finger and feeble flexion of middle finger, cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of thumb, defective opposition and abduction of the thumb at right angles to palm; flexion of wrist weakened; pain with trophic disturbances warrants a 70 percent rating for the major hand and a 60 percent rating for the minor hand.  38 C.F.R. § 4.124a, Code 8515. 

In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory disturbances.  38 C.F.R. § 4.120. 

A note in the Rating Schedule pertaining to "Diseases of the Peripheral Nerves" provides that the term "incomplete paralysis" indicates a degree of lost or impaired function which is substantially less than that which results from complete paralysis of these nerve groups, whether the loss is due to the varied level of the nerve lesion or to partial nerve regeneration.  When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a .

The words "slight," "moderate," and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities.  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 terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating.  38 C.F.R. §§ 4.2, 4.6 (2012). 

Turning to the evidence of record, VA and private treatment records show that the Veteran was receiving ongoing treatment for her bilateral carpel tunnel syndrome.  There were consistent reports of weakness, numbness, and tingling in her hands.  

The Veteran was first afforded a VA examination in September 2005.  She reported such symptoms as tingling and numbness in her fingers, which occurred constantly.  She was currently being treated w physical therapy and braces.  There was no functional impairment resulting from this condition.  Neurological testing of the upper extremities revealed motor and sensory function within normal limits.  Right and Left upper extremity reflexes revealed normal biceps and triceps jerks.  Right and left hand and wrist x-rays were within normal limits.  The examiner diagnosed the Veteran with bilateral carpel tunnel syndrome.  The examiner noted that there was no clinical symptomatology noted at the examination.  There was no overt loss in sensation, the group in both hands was normal, there was no evidence of carpal tunnel tenderness, and there was no augmentation with full flexion workstation of the wrist. An EMG study was not performed at that time.

The first EMG study of record throughout the appeals period was performed in December 2006.  The Veteran complained of hand numbness and tingling, which awakened her at night.  Additionally, her hands were weak and she had tenderness in her left elbow.  The test results showed moderate carpal tunnel syndrome on the right and mild on the left.  There was no evidence of ulnar nerve compression across the elbow in either upper extremity. 

A February 2007 private orthopedic record noted that the Veteran returned for reassessment of her hands.  The physician noted that the results of her EMG nerve conduction studies showed moderate carpal tunnel syndrome on the right and mild on the left.  This was consistent with her history and physical examination.  She did have positive Tinel's and Phalen's bilaterally, without atrophy.  She was provided with carpal tunnel braces. 

The Veteran was afforded a VA examination in May 2008.  She reported hand pain of 7 out of 10.  She noticed that she dropped things occasionally.  Additionally, she occasionally wore wrist splints, which provided minimal relief.  Flare-ups were related to using her hands for prolonged periods, especially typing and using her computer.  The examiner noted a diagnosis of mild bilateral carpal tunnel syndrome.  

The Veteran was afforded a VA examination in May 2010.  The Veteran reported numbness and tingling in her distal fingers, roughly in a median nerve distribution since early 2000.  She stated that her left hand had pain of 8 out of 10, and her right hand had pain of 9 out of 10.  She used wrist splint, which minimally helped her pain on the right and did not help her pain at all on the left.  She had flare-ups with any kind of repetitive hand motion.  She had physical therapy, as well as steroid injections into her carpal tunnels in the past.  She stated that the pain in her hands negatively affected her daily activities, as well as her ability to perform her job as a human resource assistant at the Naval Base in Millington.  She stated that her job required significant amounts of typing and that this became difficult.  She had an EMG nerve conduction study of her bilateral upper extremities in April 2010, which revealed mild carpal tunnel syndrome on the right and minimal carpal tunnel syndrome on the left.  Upon examination, there was no thenar wasting bilaterally.  Additionally, there were no gaps with grip between her fingertips or proximal palmar crease bilaterally.  She had a positive Tinel's at her carpal tunnel and pain on carpal tunnel compression test.  X-rays of the bilateral hands were within normal limits.  The examiner diagnosed the Veteran with bilateral carpal tunnel syndrome.  

The Veteran was afforded a peripheral nerves VA examination in June 2010.  She reported numbness and tingling in both of her hands for approximately seven to ten years.  She worked as a typist and stated that keeping her hands in the same position for prolonged periods of time caused a worsening of the pain and numbness.  To alleviate the pain, she had to stop doing the aggravating activity.  She also reported weakness in her hands with grip and holding items.  She did not describe particular flare-ups, but instead reported pain with certain activities.  She reported numbness that was worse at nighttime.  She noted that the pain in her hands was severe and a 6 to 8 out of 10.  She reported past treatment of physical therapy.  Night splints moderately helped her hands.  At times she had paresthesias in her median nerve distribution in her hands.  Her hands affected her daily activities such as difficulty combing her hair and holding household objects.  It also affected her at work, as typing caused a worsening of her symptoms.  

Upon examination, there were no gross deformities noted of the left and right wrists.   There was no noted thenar or hypothenar atrophy of both wrists.  She maintained good strength to resisted opposition, as well as thumb flexion at the IP joint for both wrists.  On sensory examination she reported that she was sensate in the median, ulnar, and radial nerve distributions.  On provocative testing, she had negative Tinel's and a mildly positive Phalen's on carpal tunnel compression test on both wrists.  She had a 2+ palpable radial pulse.  On two point discrimination testing, she maintained normal 2 point discrimination testing in her median nerve distribution.  X-rays of her bilateral hands were taken in December 2009, which showed no fractures, dislocations, degenerative or destructive lesions.  An April 2010 EMG study was performed and showed bilateral median neuropathies, mild on the right and minimal on the left.  The examiner concluded with a diagnosis of carpal tunnel, mild by EMG study.  

VA treatment records noted a right carpel tunnel release scheduled for September 2010.  VA records show a history of the right carpal tunnel release being performed. 

The Veteran was afforded another peripheral nerve VA examination in August 2012.  The examiner noted a diagnosis of carpal tunnel syndrome.  The Veteran reported mild symptoms of intermittent pain of the right and left upper extremities, moderate paresthesias and/or dysesthesias of the right upper extremity, mild paresthesias and/or dysesthesias of the left upper extremity, mild numbness of the right and left upper extremities, and no constant pain of the upper extremities.  Elbow flexion and extension, wrist flexion  and extension, and pinch strength were listed as normal, but her grip on the right and the left were rated 4 out of 5, which indicated active movement against some resistance.  Reflex examinations of the biceps, triceps, and brachioradialis were listed as normal.  Sensation testing for light touch was normal for the shoulder area, inner/outer forearm, but decreased on the right and left hands/fingers.  The Veteran did not display trophic changes attributable to peripheral neuropathy.  Radial nerve, ulnar nerve, musculocutaneous nerve, circumflex nerve, long thoracic nerve, upper radicular group, middle radicular group, and lower radicular group testing were all normal on both the right and left sides.  Median nerve testing showed moderate incomplete paralysis of the right hand and mild incomplete paralysis of the left hand.  The Veteran did not report the use of any assistive device for her carpal tunnel syndrome.  The examiner noted that Veteran's abnormal right and left upper extremity EMG studies.   The Veteran's carpal tunnel impacted her ability to work due to the fact she was unable to perform activities that required prolonged gripping and heavy lifting.  

a. Right Hand

After a review of the evidence of record, the Board finds that the Veteran's right hand carpal tunnel symptoms have been found to display the criteria contemplated by a 30 percent rating under DC 8515: moderate incomplete paralysis of the major hand.  

The Veteran consistently reported weakness, numbness, and tingling in her hands, which occurred constantly.  The Board notes that the May 2008 and June 2010 VA examiners diagnosed the Veteran with mild carpal tunnel syndrome and the April 2010  EMG nerve conduction study of her bilateral upper extremities revealed mild carpal tunnel syndrome on the right.  However, the first EMG study of record performed in December 2006 showed moderate carpal tunnel syndrome on the right.  The private February 2007 orthopedic record also noted that these test results were consistent with her history and physical examination.  She did have positive Tinel's and Phalen's bilaterally, without atrophy.  Additionally, May 2010 VA examiner noted that the Veteran had a positive Tinel's at her carpal tunnel and pain on carpal tunnel compression test.   Additionally, the August 2012 VA examiner noted that median nerve testing showed moderate incomplete paralysis of the right hand.  Therefore, the preponderance of the evidence shows that the Veteran has had moderate incomplete paralysis of the right hand throughout the appeals period.

While she meets the criteria for a 30 percent rating, the Board has determined that she does not meet the criteria for the next higher 50 percent rating, as her right hand carpal tunnel symptomatology does not reveal severe incomplete paralysis.  As discussed above, the Veteran's EMG studies have not shown incomplete paralysis of the median nerve.  Additionally, VA examination reports consist of diagnoses of mild and moderate incomplete paraylysis, but not severe.  Therefore, such findings do not warrant a 50 percent evaluation when all the manifestations are considered.  See Mauerhan, 16 Vet. App. at 443.

The Veteran's right hand carpal tunnel symptoms justify assigning a higher disability rating of 30 percent throughout the entire period of appeal.  Mauerhan v. Principi, 16 Vet. App. 436 (2002).  The Veteran has had ongoing right hand carpal tunnel symptoms since her service connection claim was granted, and has continued to receive treatment for this disability.  Therefore, it is reasonable to conclude that the right hand carpal tunnel symptoms have not changed over the years since service.  The Board has considered staged ratings under Hart v. Mansfield, 21 Vet. App. 505 (2007), but concludes that they are not warranted.  

All reasonable doubt has been resolved in favor of the Veteran in making this decision.  The evidence is for the assignment of a higher 30 percent rating throughout the entire period of appeal for the Veteran's right hand carpal tunnel syndrome.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  To the extent that the Veteran has contended that her right hand carpal tunnel is more severely impaired than the rating assigned, the preponderance of the evidence is against the claim; and the benefit of the doubt doctrine is not applicable.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

b. Left Hand

After a review of the evidence of record, the Board finds that the Veteran's left hand carpal tunnel symptoms have been found to display the criteria contemplated by a 10 percent rating under DC 8515: mild incomplete paralysis of the minor hand.  

The Veteran consistently reported weakness, numbness, and tingling in her hands, which occurred constantly.  The first EMG study of record performed in December 2006 showed mild carpal tunnel syndrome on the left.  The private February 2007 orthopedic record also noted that these test results were consistent with her history and physical examination.  The May 2008 and June 2010 VA examiners diagnosed the Veteran with mild carpal tunnel syndrome and the April 2010  EMG nerve conduction study of her bilateral upper extremities revealed minimal carpal tunnel syndrome on the left.  She did have positive Tinel's and Phalen's bilaterally, without atrophy.  Additionally, May 2010 VA examiner noted that the Veteran had a positive Tinel's at her carpal tunnel and pain on carpal tunnel compression test.   Additionally, the August 2012 VA examiner noted that median nerve testing showed mild incomplete paralysis of the left hand.  Therefore, the preponderance of the evidence shows that the Veteran has had mild incomplete paralysis of the left hand throughout the appeals period.

While she meets the criteria for a 10 percent rating, the Board has determined that she does not meet the criteria for the next higher 20 percent rating, as her left hand carpal tunnel symptomatology does not reveal moderate incomplete paralysis.  As discussed above, the Veteran's EMG studies have not shown incomplete paralysis of the median nerve.  Additionally, VA examination reports consist of diagnoses of mild and minimal incomplete paraylysis, but not moderate.  Therefore, such findings do not warrant a 20 percent evaluation when all the manifestations are considered.  See Mauerhan, 16 Vet. App. at 443.

The Veteran's left hand carpal tunnel symptoms justify assigning a higher disability rating of 10 percent throughout the entire period of appeal.  Mauerhan v. Principi, 16 Vet. App. 436 (2002).  The Veteran has had ongoing left hand carpal tunnel symptoms since her service connection claim was granted, and has continued to receive treatment for this disability.  Therefore, it is reasonable to conclude that the left hand carpal tunnel symptoms have not changed over the years since service.  The Board has considered staged ratings under Hart v. Mansfield, 21 Vet. App. 505 (2007), but concludes that they are not warranted.  

All reasonable doubt has been resolved in favor of the Veteran in making this decision.  The evidence is for the assignment of a higher 10 percent rating throughout the entire period of appeal for the Veteran's left hand carpal tunnel syndrome.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  To the extent that the Veteran has contended that her left hand carpal tunnel is more severely impaired than the rating assigned, the preponderance of the evidence is against the claim; and the benefit of the doubt doctrine is not applicable.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

D. Arthritis of the Acromioclavicular (AC) joint of the Right Shoulder

The Veteran was initially granted service connection and assigned a noncompensable disability rating for arthritis of the AC joint of the right shoulder, effective November 1, 2005, in accordance with the criteria set forth in the Schedule for Rating Disabilities, 38 C.F.R. Part 4.71a, DC 5003 (2012).  Subsequently, the Veteran's disability rating was increased to 10 percent, effective January 28, 2008. 

Diagnostic Code 5003 provides that degenerative arthritis that is established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.  When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate diagnostic codes, Diagnostic Code 5003 provides a rating of 10 percent for each such major joint (like the shoulder, see 38 C.F.R. § 4.45) 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.  However, for degenerative arthritis that is established by x-ray findings, when there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, Diagnostic Code 5003 provides a 20 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints, with occasional incapacitating exacerbations, and a 10 percent rating when there are no incapacitating episodes.

Additionally, the Board can assess and rate the Veteran's right shoulder disability under Diagnostic Codes 5200 to 5203, which discuss the shoulder and arm.  See 38 C.F.R. § 4.71a, 5200-5203.  The Veteran has been noted to be right hand dominant; therefore, the rating criteria listed below is in relation to the Major (dominant) side.  Under DC 5200, ankylosis of scapulohumeral articulation, that is favorable, abduction to 60 degrees, can reach mouth and head warrants a 30 percent rating; intermediate, between favorable and unfavorable warrants a 40 percent rating; and unfavorable, abduction limited to 25 degrees from the side warrants a 50 percent rating.  

Under DC 5201, limitation of motion to shoulder level (i.e. 90 degrees) warrants a 20 percent rating.  Motion limited midway between the side and shoulder level (i.e. less than 90 degrees but more than 25 degrees shoulder motion) warrants a 30 percent rating.  Motion limited to 25 degrees or less from the side is rated at 40 percent.  

In assessing the severity of limitation of shoulder motion, it is necessary to consider both forward flexion and abduction.  See Mariano v. Principi, 17 Vet. App. 305, 317-18 (2003).  Additionally, under Plate I of 38 C.F.R. § 4.71a, normal range of motion of the shoulder is forward elevation (flexion) and abduction to 180 degrees, and internal and external rotation to 90 degrees.

When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under these codes.  38 C.F.R. § 4.71a.

Under DC 5202, other impairment of humerus, warrants a 20 percent rating for malunion of the humerus with moderate deformity, and a 30 percent rating for malunion of the humerus with severe deformity.  A 20 percent rating is warranted for recurrent dislocations of the humerus at the scapulohumeral joint with infrequent episodes and guarding of movement only at the shoulder level, and a 30 percent for frequent episodes and guarding of all arm movements.  A 50 percent rating is warranted for fibrous union of the humerus; a 60 percent rating for nonunion (false flail joint) of the humerus; and an 80 percent rating for loss of head (flail shoulder) of the humerus.  38 C.F.R. § 4.71a, Diagnostic Code 5202 (2012).

Under DC 5203, impairment of clavicle or scapula, warrants a 10 percent rating for malunion, a 10 percent rating for nonunion without loose movement, a 20 percent rating for nonunion with loose movement, and a 20 percent rating for dislocation.  Or, impairment of the clavicle or scapula may be rated based on impairment of function of the contiguous joint.  38 C.F.R. § 4.71a, Diagnostic Code 5202 (2012).

When evaluating joint disabilities rated on the basis of limitation of motion, VA may consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; Mitchell v. Shinseki, No. 09-2169 (Vet. App. Aug. 23, 2011); see also DeLuca v. Brown, 8 Vet. App. 202 (1995).  Functional loss due to pain is rated at the same level as functional loss where motion is impeded.  Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991).  Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in.  See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995).

Turning to the evidence of record, the Veteran was first afforded a VA examination in September 2005.  Right shoulder range of motion showed flexion of 180 degrees, abduction to 180 degrees, extension rotation to 90 degrees, and in rotation to 90 degrees.  The joint function was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use.  Right shoulder x-rays showed minimal degenerative change in the AC joint.  There was mild degenerative change in the right acromioclavicular joint, which was likely secondary to arthritic change. 

The Veteran was afforded a VA examination in May 2008.  Since the in-service shoulder injury, the Veteran reported pain of 6 out of 10.  She did not use a brace.  She was noted to be right hand dominant.  Flare-ups of her shoulder were related to prolonged periods of using her right arm and overhead activities.  She had some physical therapy back in 2005 with minimal relief.  Her shoulder disability did not affect her activities of daily living; however, it did affect her job as a cashier as she did have pain in her should towards the end of her shift.  Right shoulder range of motion testing showed forward flexion of 180 degrees, extension of 45 degrees, abduction of 100 degrees, and internal rotation and external rotation of 80 degrees.  She had very mild pain with range of motion testing and had no increased pain or decreased motion with repetitive motion testing.  Rotator cuff musculature was intact to motor testing with normal muscle strength.  She had a mildly positive cross arm adduction test and negative impingement signs.  Right shoulder x-rays showed mild AC joint arthritis without glenohumeral arthritis.  

The Veteran was afforded a VA shoulder examination in August 2012.  The Veteran was noted to have biceps tendonitis and rotator cuff tendonitis.  The Veteran reported flare-ups with overhead use and heavy lifting.  After these activities the Veteran would take medication and rest.  Range of motion testing displayed right shoulder flexion of 180 degrees, with painful motion at 110 degrees, and abduction of 170 degrees, with painful motion at 110 degrees.  After repetitive-use testing with three repetitions, the Veteran had right should flexion if 180 degrees and abduction of 170 degrees.  The Veteran did not have additional limitation in range of motion of the shoulder after repetitive-use testing, but she did show functional loss of the shoulder arm due to pain on movement.  The Veteran had localized tenderness or pain on palpation of the joint/soft tissue/biceps tendon, but had no guarding of the shoulder.  Muscle strength testing of shoulder abduction and forward flexion were normal.  The Veteran did not have ankylosis of the glenohumeral articulation (shoulder joint).  There was no history of mechanical symptoms or recurrent dislocation.  The Hawkins impingement test was positive for pain on internal rotation, and the empty-can test was positive for weakness.  The external rotation/infraspinatus strength test, lift-off subscapularis test, and crank apprehension and relocation test were all negative.  The Veteran did not have an AC joint condition or any other impairment of the clavicle or scapula.  There was tenderness on palpation of the AC joint.  The cross-body adduction test was positive.  The examiner stated that imagine studies of the shoulder showed no arthritis.  The Veteran's right shoulder disability impacts her ability to work due to the fact she was unable to perform activities that required heavy lifting or overhead use of the arms.  

a. Rating prior to January 28, 2008 

In light of the evidence, the Veteran is not entitled to an initial compensable disability rating for arthritis of the AC joint of the right shoulder.  The Veteran had full range of motion during the September 2005 VA examination and the examiner noted there was no objective evidence of pain on active motion.  Therefore, a 10 percent rating under Diagnostic Code 5003 prior to January 28, 2008, is not warranted for the Veteran's right shoulder disability as there is no limitation of motion documented. 

The Board has also considered whether the consideration of a higher rating is appropriate based on evidence of pain, weakened movement, excess fatigability, or incoordination. See 38 C.F.R. § 4.40; DeLuca, 8 Vet. App. 202.  Under 38 C.F.R. § 4.59, the intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  However, as discussed above, the VA examiner noted no objective evidence of pain in the examination report.  Further, the joint function was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use testing.

The Board has also considered whether the Veteran is entitled to an increased disability rating under Diagnostic Code 5200 to 5203 throughout the appeals period for her right shoulder disability, which is discussed in detail below.

For the reasons and bases provided above, the preponderance of the evidence in this case is against the Veteran's claim for an initial compensable disability rating for arthritis of the AC joint of the right shoulder.  See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997).  Accordingly, the Veteran's claim for an increased rating for arthritis of the AC joint of the right shoulder is denied.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable.  Ortiz v. Principi, 274 F. 3d. 1361, 1365 (Fed. Cir. 2001). 

b. Rating since January 28, 2008

In light of the evidence, the Veteran is not entitled to an increased disability rating in excess of 10 percent for arthritis of the AC joint of the right shoulder since January 28, 2008.   A 10 percent rating is for application because the limitation of motion of the specific joint or joints involved is non-compensable under Diagnostic Code 5201, showing no limitation of motion to shoulder level (90 degrees), and there is satisfactory evidence of painful motion.  38 C.F.R. §§ 4.31; 4.71a, Diagnostic Code 5003; see Hart, 21 Vet. App. 505.  Specifically, as reported in the VA examination reports, the Veteran's forward flexion and abduction has been limited to no less than 110 degrees with pain. 

The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca.  However, an increased evaluation for the Veteran's shoulders is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are supported by pathology consistent with the assigned ratings and no higher.  In this regard, the Veteran's VA examination reports note that the Veteran did not have additional limitation in range of motion of the shoulder after repetitive-use testing, but she did show functional loss of the shoulder arm due to pain on movement.  However, as noted above, painful motion was already considered in assigning a 10 percent for painful motion under DC 5003.  Therefore, the Board finds that the preponderance of the evidence is against an increased evaluation for the Veteran's shoulder disability beyond 10 percent.

Finally, the Board has considered whether there may be any other relevant Diagnostic Code that would allow for a higher disability rating throughout the appeals period.  However, there is no evidence of ankylosis of scapulohumeral articulation, impairment of the humerus, or impairment of the clavicle or scapula and as such, a higher disability rating is not available.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5200, 5202, 5203.  The August 2012 VA examiner stated that the Veteran did not have ankylosis of the glenohumeral articulation (shoulder joint), a history of mechanical symptoms or recurrent dislocation, or any impairment of the clavicle or scapula.  Therefore an increased 20 percent disability rating under Diagnostic Code 5202 is not warranted.

For the reasons and bases provided above, the preponderance of the evidence in this case is against the Veteran's claim for a disability rating in excess of 10 percent for arthritis of the AC joint of the right shoulder.  See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997).  Accordingly, the Veteran's claim for an increased rating for arthritis of the AC joint of the right shoulder is denied.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable.  Ortiz v. Principi, 274 F. 3d. 1361, 1365 (Fed. Cir. 2001). 

III. Extraschedular Consideration

The rating schedule represents, as far as is practicable, the average impairment of earning capacity.  Ratings will generally be based on average impairment.  38 C.F.R. § 3.321(a), (b).  To afford justice in exceptional situations, an extraschedular rating can be provided.  38 C.F.R. § 3.321(b).

In a recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted.  See Thun v. Peake, 22 Vet. App. 111 (2008).  First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

The symptoms associated with the Veteran's service-connected right knee disability include pain, weakness, swelling, limiting walking/standing, inability to run, and limitation of motion.  The symptoms associated with the Veteran's carpal tunnel of the left and right hands include pain, tingling, weakness, and numbness of the hands.  The symptoms associated with the Veteran's right shoulder disability include pain and limitation of motion.  The symptoms associated with the Veteran's right ankle disability include pain, instability, swelling, popping, and flare-ups with walking and standing.  However, these symptoms of the Veteran's right knee, right ankle, right shoulder, and carpal tunnel of the left and right hands are not shown to cause any impairment that is not already contemplated by the rating criteria, and the Board finds that the rating criteria reasonably describes her disabilities.  See 38 C.F.R. § 4.71a, DC 5003, 5200-5203, 5256-55263, 5270-5274; 38 C.F.R. § 4.124a, DC 8515.  For this reason, referrals for consideration of extraschedular ratings are not warranted for these claims.  


ORDER

Entitlement to an initial disability rating of 10 percent, but no higher, for status post Brostrom reconstruction of the lateral ligaments of the right ankle since November 1, 2005, is granted.

Entitlement to an initial disability rating in excess of 10 percent for chondromalacia of the right knee with arthritis is denied.

Entitlement to an initial disability rating of 30 percent, but no higher, for carpel tunnel syndrome of the right hand since November 1, 2005, is granted.

Entitlement to an initial disability rating of 10 percent, but no higher, for carpel tunnel syndrome of the left hand since November 1, 2005, is granted.

Entitlement to an initial noncompensable disability rating for arthritis of the AC joint of the right shoulder prior to January 28, 2008, is denied.

Entitlement to an increased disability rating in excess of 10 percent for arthritis of the AC joint of the right shoulder since January 28, 2008, is denied.


REMAND

Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims of increased ratings for hammertoe of the left and right little toes and status post plantar fasciotomy of the left foot with arthritis so that she is afforded every possible consideration.  38 U.S.C.A. § 5103A  (West 2002); 38 C.F.R. § 3.159 (2012). 

The Veteran was afforded a foot VA examination in August 2012.  The Veteran was diagnosed with Morton's neuroma, metatarsalgia, and plantar fasciitis, but no hammertoe was noted.   The examiner noted that imaging studies of the foot were performed, but that there were no abnormal findings.

The Veteran was afforded another foot VA examination in January 2013 to specifically discuss her hammertoe.  The Veteran was diagnosed with hammertoes and Morton's neuroma.  The Veteran was noted to have hammer toe of the second, third, fourth, and little toe of the left and right foot.  The Veteran did not have claw foot.  The examiner noted that imagining studies showed that the Veteran had traumatic arthritis of the right foot documented in multiple joints.  Additionally, the test results also showed claw toe deformity of the second through fifth toes with degenerative changes second through fifth metatarsophalangeal joint and first metatarsophalangeal joint.  An opinion was provided at that time in reference to the Veteran's hammertoe, which was already service connected.  

In light of the evidence of record, the Board finds the current severity and manifestations of the Veteran's service-connected hammertoe of the left and right little toes and plantar fasciotomy of the left foot with arthritis remain unclear.  The Board notes that the Veteran may be compensated only for a service-connected disability, and the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so.  Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam) (citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996)).  Here, there is a question as to which of the Veteran's foot disabilities and symptomatology are related to her service-connected hammertoe of the left and right little toes and status post plantar fasciotomy of the left foot with arthritis, and which symptoms are related to non-service connected disabilities.  On remand, the examiner should determine if the Veteran's foot diagnoses of Morton's neuroma and/or metatarsalgia are related to her service-connected connected hammertoe of the left and right little toes and plantar fasciotomy of the left foot with arthritis.  If the examiner determines that these disabilities are unrelated to the Veteran's service-connected hammertoe of the left and right little toes and/or plantar fasciotomy of the left foot with arthritis, the examiner, if practicable, should attempt to determine which symptoms are contributed to each of the Veteran's foot diagnoses.  See also 61 Fed. Reg. 52695 (Oct. 8, 1996) (VA responding to commenters by noting that, when it is not possible to separate the effects of conditions, VA regulations at 38 C.F.R. § 3.102, which require that reasonable doubt on any issue be resolved in the claimant's favor, clearly dictate that such signs and symptoms be attributed to the service-connected condition).

Accordingly, the case is REMANDED for the following action:

1) The Veteran should be scheduled for a new VA foot examination to determine the current level of severity of the Veteran's hammertoe of the left and right little toes and/or plantar fasciotomy of the left foot with arthritis.  The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination.  The examiner should note in the examination report that the claims folder and the remand have been reviewed.  

a. The examiner should state whether it is at least as likely as not that the Veteran's foot diagnoses of Morton's neuroma and/or metatarsalgia are caused by her service-connected connected hammertoe of the left and right little toes and/or plantar fasciotomy of the left foot with arthritis.

b. If not, the examiner should determine which of the Veteran's current left foot symptoms are related to her service-connected hammertoe of the left and right little toes, plantar fasciotomy of the left foot with arthritis, or any other cause.  

If the examiner is unable to separate the symptoms of the feet that are attributable to the service-connected hammertoe of the left and right little toes and/or plantar fasciotomy of the left foot with arthritis to those of any other cause, it must be so stated.

Additionally, in rendering this opinion, the examiner should consider and discuss the August 2012 and January 2013 VA examination reports, VA outpatient treatment records, private treatment records, and any other relevant information.  Further, the examiner should reconcile the conflicting examination findings found in the examination reports. 

All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached must be provided.  If any requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation.

2) Thereafter, the AMC must review the claims file to ensure that the foregoing requested development has been completed.  In particular, review the requested medical opinion to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures.  See Stegall v. West, 11 Vet. App. 268 (1998).
		
3) After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims should be readjudicated.  If a claim remains denied, a supplemental statement of the case should be provided to the Veteran and her representative.  After they have had an adequate opportunity to respond, this issue should be returned to the Board for further appellate review.  

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

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




______________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs