Citation Nr: 1333345 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 06-11 179A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUES 1. Entitlement to service connection for a sleep disorder. 2. Entitlement to an initial disability rating higher than 10 percent for radiculopathy of the left arm. 3. Entitlement to an initial compensable disability rating for bilateral flatfoot prior to May 6, 2010, and higher than 20 percent thereafter. 4. Entitlement to an initial disability rating higher than 20 percent for a cervical spine disability prior to December 20, 2011, and higher than 30 percent thereafter. 5. Entitlement to an initial disability rating higher than 10 percent for lumbar spine disability prior to December 15, 2006, and higher than 20 percent thereafter. 6. Entitlement to an initial 10 percent disability rating for a right shoulder disability prior to May 6, 2010, and higher than 20 percent thereafter. 7. Entitlement to an initial disability rating higher than 10 percent for a left shoulder disability prior to May 6, 2010, and higher than 20 percent thereafter. 8. Entitlement to an initial compensable disability rating for a left knee disability prior to December 15, 2006, and higher than 10 percent thereafter. 9. Entitlement to an initial compensable disability rating for a right knee disability prior to December 15, 2006, and higher than 10 percent thereafter. 10. Entitlement to total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to December 20, 2011. REPRESENTATION Appellant represented by: Penelope Gronbeck, Attorney At Law ATTORNEY FOR THE BOARD Cheryl E. Handy, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1972 to August 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in June 2005 of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine, which granted service connection for bilateral flat feet and assigned a disability rating of 0 percent (noncompensable); a subsequent rating decision in April 2011 granted a 10 percent rating, effective May 6, 2010. The Veteran has also appealed the November 2009 rating decision which granted service connection for radiculopathy of the left arm and assigned a 10 percent disability rating effective September 9, 2009, and denied service connection for a sleep disorder. Also on appeal is the November 2011 rating decision granting service connection for arthritis of the left shoulder and assigning a 10 percent disability rating effective June 16, 2004, and 20 percent effective May 6, 2010; granting service connection for arthritis of the right shoulder and assigning a 0 percent disability rating effective June 16, 2004, 10 percent effective December 5, 2006, and 20 percent effective May 6, 2010; granting service connection for left and right knee disabilities and assigning each a noncompensable rating effective June 16, 2004, and 10 percent effective December 15, 2006; and granting service connection for lumbar spine disability and assigning a 10 percent disability rating effective June 16, 2004, and 20 percent effective December 15, 2006. Additionally, the August 2012 rating decision which granted an increased disability rating for lumbosacral spine disability, effective December 20, 2011, and granted TDIU effective December 20, 2011 is also on appeal. Finally, a March 2013 rating decision assigned a 10 percent disability rating for the Veteran's right shoulder, effective June 16, 2004, and 20 percent effective May 6, 2010. A claimant is presumed to be seeking the maximum benefit allowed by law and regulation, and a claim remains in controversy where less than the maximum available benefit is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). Therefore, the claim for a higher disability rating as to each of the disabilities discussed herein remains on appeal. In February 2008, the Board issued a decision in this matter denying a compensable disability rating for bilateral pes planus. The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). Before the Court issued a decision, the Veteran and the Secretary of VA agreed to a Joint Motion to vacate the February 2008 Board decision and remand the issues to the Board for compliance with the remand instructions. The Court granted the Joint Motion in June 2009. The Board remanded the appeal in March 2010 for compliance with the June 2009 Joint Motion. In August 2011, this matter came before the Board again. At that time, the Board granted service connection for bilateral shoulder, bilateral knee, and lumbar spine disabilities, and remanded the claims for a higher initial rating for pes planus and TDIU. As the requested development has been completed with respect to the pes planus claim, no further action to ensure compliance with the remand directive is required on that issue. Stegall v. West, 11 Vet. App. 268 (1998). The issue of entitlement to TDIU prior to December 15, 2006, is REMANDED to the RO for further development. The Veteran will be notified if any further action on his part is required. FINDINGS OF FACT 1. Sleep disorder is not shown. 2. The Veteran's left upper extremity radiculopathy is manifested by moderate incomplete paralysis of the median nerves. 3. Prior to May 6, 2010, the Veteran's bilateral flat foot disability was characterized by complaints of pain but no objective evidence of pain on manipulation or of weight-bearing over or medial to the great toe on either foot. Since May 6, 2010 the Veteran's bilateral flat foot disability has been characterized by moderate disability with pain and tenderness on manipulation and weight-bearing medial to the great toe; marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities are not shown. 4. Prior to December 20, 2011 the Veteran's cervical spine disability was characterized by range of motion in his neck of at least 24 degrees of flexion and combined range of motion in the cervical spine of 128 degrees. Since December 20, 2011, the Veteran's cervical spine disability has been characterized by flexion to only 10 degrees; ankylosis of the cervical spine has not been shown. 5. As of June 16, 2004, the date of claim, the Veteran's lumbar spine disability has been characterized by flexion to no more than 85 degrees and combined range of motion of the thoracolumbar spine of no more than 225 degrees. As of December 15, 2006, the Veteran's lumbar spine disability has been characterized by flexion to no more than 60 degrees and combined range of motion to no more than 180 degrees; ankylosis of the entire spine has not been shown. 6. As of May 6, 2010, the Veteran's low back disability included manifestations of neurological impairment, specifically left leg radiculopathy, which were consistent with mild incomplete paralysis of the left sciatic nerve. 7. Prior to May 6, 2010, the Veteran's right shoulder disability was characterized by X-ray evidence of arthritis and objective evidence of pain but no compensable limitation of motion. Since May 6, 2010, the Veteran's right shoulder disability has been characterized by limitation of motion with flexion of 85 degrees and abduction to 90 degrees, approximately the range of motion of the arm at shoulder level; limitation of motion approximating 25 degrees or less from the side, has not been shown. 8. Prior to May 6, 2010, the Veteran's left shoulder disability was characterized by X-ray evidence of arthritis and objective evidence of pain but no compensable limitation of motion. Since May 6, 2010, the Veteran's left shoulder disability has been characterized by limitation of motion with flexion of 85 degrees and abduction to 90 degrees, approximately the range of motion of the arm at shoulder level; limitation of motion of the arm to only 25 degrees from the side, has not been shown. 9. Prior to December 15, 2006, the Veteran's left knee disability was asymptomatic, with no objective evidence of painful motion and no organic condition shown in either knee. Since December 15, 2006, the Veteran's left knee disability has been characterized by objective evidence of painful motion but no compensable limitation of flexion or extension and no evidence of instability, and no meniscus impairment. 10. Prior to December 15, 2006, the Veteran's right knee disability was characterized by no objective evidence of painful motion and no organic condition was shown in either knee. Since December 15, 2006, the Veteran's right knee disability has been characterized by objective evidence of painful motion but no compensable limitation of flexion or extension and no evidence of instability. 11. As of December 15, 2006, the Veteran's service connected disabilities met the percentage requirements for TDIU and precluded gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for a sleep disorder have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). 2. The criteria for a rating 20 percent for right upper extremity radiculopathy have been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8515 (2013). 3. The criteria for an initial compensable disability rating for bilateral flatfeet prior to May 6, 2010 and higher than 10 percent thereafter have not been met. 38 U.S.C.A §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5276 (2013). 4. The criteria for an initial disability rating higher than 20 percent for a cervical spine disability prior to December 20, 2011, and higher than 30 percent thereafter have not been met. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242 (2013). 5. The criteria for an initial disability rating of 20 percent as of June 16, 2004 for a lumbar spine disability, and 40 percent as of December 15, 2006, have been met. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. 6. The criteria for a separate 10 percent disability rating for left leg radiculopathy were met as of May 6, 2010. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 8520 (2013) 7. The criteria for an initial disability rating higher than 10 percent for a right shoulder disability prior to May 6, 2010, and higher than 20 percent thereafter have not been met. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5201 (2013). 8. The criteria for an initial disability rating higher than 10 percent for a left shoulder disability prior to May 6, 2010, and higher than 20 percent thereafter have not been met. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5203 (2013). 9. The criteria for an initial compensable disability rating for a left knee disability prior to December 15, 2006, and higher than 10 percent thereafter have not been met. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257 (2013). 10. The criteria for an initial compensable disability rating for a right knee disability prior to December 15, 2006, and higher than 10 percent thereafter have not been met. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260 (2013). 11. The criteria for an award of TDIU were met as of December 15, 2006. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) As provided by the 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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Duty to Notify Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran's appeals of the initial evaluation following the grant of service connection do not require additional notice. Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required as any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA with respect to the claims for higher initial ratings for left arm radiculopathy, bilateral flat feet, cervical spine disability, lumbar spine disability, bilateral shoulder disability, and bilateral knee disability. The Veteran was sent letter in July 2004, November 2004, March 2006, and April 2010 that provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. The Board acknowledges that, in the present case, complete notice was not issued prior to the adverse determination on appeal. However, fully compliant notice was later issued in the March 2006 communication, which explained what type of information and evidence was needed to establish a disability rating and effective date. The claims were readjudicated on several occasions thereafter, including in May 2007. Accordingly, any timing deficiency has here been appropriately cured. Mayfield, 444 F.3d 1328 (Fed. Cir. 2006). Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him 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 Veteran has been provided VA medical examinations on multiple occasions including October 2004, December 2006, October 2009, May 2010, and December 2011. The Board notes that the VA examination reports contain sufficiently specific clinical findings and informed discussion of the pertinent history and features of the disability on appeal to provide probative medical evidence adequate for rating purposes. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). All necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file. These files together comprise the claims file. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record, including testimony provided at a November 2007 hearing before the undersigned. The Board has carefully reviewed such statements and concludes that no available outstanding relevant evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding relevant evidence with respect to the Veteran's claim. In compliance with the Board's remand, VA provided the Veteran with a medical examination in December 2011, which specifically addressed the question of deformity in the Veteran's feet. In addition, this examination contained all information needed to rate the disability. Indeed, the examiner reviewed the objective evidence of record and documented the Veteran's current complaints. Moreover, the VA examiner performed a thorough clinical evaluation, considered an accurate history and offered opinions accompanied by a rationale. Therefore, this examination is adequate for VA purposes. Thus VA has complied with the August 2011 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). The United States Court of Appeals for Veterans Claims (Court) has held that the provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). At his hearing the undersigned identified the issue, sought information as to treatment to determine whether all relevant records had been obtained, and sought information as to any changes in the disability since the last examination. Ultimately the claim was remanded for a new examination. The Board thereby met the duties imposed by 38 C.F.R. § 3.103(c)(2) as interpreted in Bryant. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. 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). Sleep Disorder Claim Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131. Service connection requires evidence of: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In a service connection claim, a threshold question is whether the Veteran has a current disability for which service connection is sought. In the absence of proof of present disability, there can be no valid claim of service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement of a current disability may be met by evidence of symptomatology at the time of filing or at any point during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 323 (2007). Facts and Analysis In a statement submitted in September 2009, the Veteran wrote that he did not have a sleep disorder, per se, "what I do have is pain in my neck that wakes me throughout the night. If that is considered a sleep disorder than [sic] that is what I have." On an October 2009 VA examination, the Veteran reported that he had trouble sleeping and that his sleep was interrupted by neck pain, especially if he turned the wrong way. He had never been evaluated for any sleep disorder and had not been given a diagnosis of any sleep disorder. His sleep disruptions were related entirely to his neck pain. The examiner indicated that no diagnosis of sleep disorder could be rendered because the Veteran did not have a sleep disorder. The Veteran is service-connected for a neck, or cervical spine, disability and the propriety of the rating for this disability is addressed below. The Board will consider the Veteran's reported inability to sleep as a result of neck pain in determining the proper disability rating for cervical spine disability. The evidence is against a finding that the Veteran has a current sleep disorder. Reasonable doubt does not arise, this claim must be denied. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The benefit-of-the-doubt rule does not apply. 38 U.S.C.A. § 5107(b). Initial Ratings A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Hart v. Mansfield, 21 Vet. App. 505, 510 (2007); Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). In this instance, staged ratings have been assigned for the Veteran's bilateral flat foot, cervical spine disability, lumbar spine disability, shoulder disabilities, and knee disabilities; the propriety of such ratings will be discussed in detail below. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has 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, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997); 38 C.F.R. § 4.59 (2013). Pain without accompanying functional limitation cannot serve as the basis for a higher rating. Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). Left Arm Radiculopathy On VA examination in October 2009, the Veteran reported radiation of pain and tingling into his left arm. He had normal muscle function in both arms, with decreased sensitivity to pain and light touch in the left arm as compared with the right. His reflexes were normal on testing. On VA examination in December 2011, the Veteran reported radiating pain, numbness, and paresthesias in his left arm as a result of his neck disability. Neurological testing showed decreased sensation of pain and light touch in the left arm compared with the right. The examiner noted a diagnosis of radiculopathy of the left upper extremity with moderate effects on usual daily activities including chores, shopping, exercise, recreation, and traveling. The Veteran currently has a 10 percent disability rating assigned under Diagnostic Code 8515 for radiculopathy of the left arm, secondary to his service-connected cervical spine disability, effective as of September 9, 2009. Diagnostic Code 8515 addresses the median nerve, and authorizes a 10 percent rating for mild incomplete paralysis. For moderate incomplete paralysis, a 20 percent rating is authorized for the minor extremity, while a 30 percent rating is authorized for the major extremity. Severe incomplete paralysis warrants a 40 percent rating in the minor extremity, and a 50 percent rating in the major extremity. Where the evidence suggests that the Veteran has complete paralysis, a 60 percent rating is warranted for the minor extremity, and a 70 percent rating for the major extremity. In this case, the record indicates that the Veteran is right-hand dominant, and his left arm is therefore the minor extremity. Under Diagnostic Code 8515, "complete paralysis" of the median nerve is manifested by: the hand inclined to the ulnar side; the index and middle fingers more extended than normal; 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; an inability to make a fist; the index and middle fingers remain extended; an inability to flex the distal phalanx of thumb; defective opposition and abduction of the thumb, at right angles to palm; weakened wrist flexion; and pain with trophic disturbances. The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. See Note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124(a). When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree of disability. Id. The evidence set forth above demonstrates that the currently assigned 10 percent disability rating for the Veteran's left arm radiculopathy is not sufficient. Examination and testing have shown that he has decreased sensation in his arm and symptoms of pain, numbness, and paresthesias. Normal muscle function and reflexes are present. The VA examiner in December 2011 described the Veteran's disability as moderate, which is more consistent with a 20 percent disability rating. As the Veteran's symptoms have been consistent throughout the appeals period, the 20 percent disability rating should be assigned since the date of service connection. A still higher disability rating is not warranted because there is no evidence of severe incomplete paralysis. When compared with the full disability rating criteria, the involvement is wholly sensory, with no evidence of muscle atrophy, paralysis or positional fixation of the fingers or hand, inability to make a fist, defective opposition or weakened wrist flexion. Thus, the evaluation of a moderate degree of disability, with assignment of a 20 percent disability rating, is appropriate. Flatfoot On VA examination in October 2004, the Veteran reported pain in both feet after prolonged standing, as well as morning stiffness and fatigability at the end of the day. He denied redness, heat, or swelling and did not use corrective shoes or orthotics for his foot problems. Physical examination showed very obvious pes planus, left worse than right, but no swelling, overt palpable tenderness, abnormality of the Achilles tendon, abnormal gait, callosities, shoe wear, or skin changes. X-rays of both feet showed no obvious abnormalities. At the November 2007 VA hearing, the Veteran testified that although his pes planus was rated by VA as mild, he had severe cramps in his feet at night and had to get up and walk around the bedroom. He felt that the condition was more than mild based on the severity of his pain. On May 2010 VA examination, the Veteran reported increasing pain in both feet, particularly with prolonged standing, cramping at night, and morning stiffness. He denied heat, redness, fatigability, weakness, and lack of endurance, but said he was unable to stand for more than a few minutes and unable to walk more than a few yards. Physical examination showed no signs of abnormal weight bearing, painful motion, swelling, instability, deformity, muscle atrophy, or weakness. There was evidence of tenderness in the bottoms of the feet and they were tender to manipulation. Pes planus or flatfoot was seen bilaterally with normal Achilles alignment on both weight bearing and non-weight bearing. There was moderate pronation in both feet as well as 10 degrees of valgus in both heels, with weight bearing medial to the great toe on both feet. On VA examination in December 2011, the Veteran reported increasing pain in both feet, particularly with prolonged standing, and cramping and numbness in both feet at night. Physical examination showed tenderness to manipulation and tenderness along the bottom of the feet. There was no malalignment in the Achilles or midfoot and the Veteran's weight bearing was normal. He had moderate pronation and 10 degrees of valgus in the heels, correctible by manipulation. The examiner described the severity of the Veteran's bilateral pes planus as moderate, with no marked pronation or inward displacement and no objective evidence of marked deformity or marked pain on use and manipulation accentuated, and no indication of swelling on use or characteristic callosities. Diagnostic Code 5276 provides ratings for acquired flatfoot. Mild flatfoot with symptoms relieved by built-up shoe or arch support is rated as noncompensably (0 percent) disabling. Moderate flatfoot with weight-bearing line over or medial to the great toe, inward bowing of the atendo achillis, pain on manipulation and use of the feet, bilateral or unilateral, is rated as 10 percent disabling. Severe flatfoot, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, is rated as 20 percent disabling for unilateral disability, and 30 percent disabling for bilateral disability. Pronounced flatfoot, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendo achillis on manipulation, that is not improved by orthopedic shoes or appliances, is rated as 30 percent disabling for unilateral disability, and 50 percent disabling for bilateral disability. 38 C.F.R. § 4.71a. The Veteran's bilateral flat feet were rated as 0 percent or noncompensably disabling effective June 2004 and increased to 10 percent disabling effective May 2010. The Veteran seeks both an increased current disability rating and an earlier effective date for the award of the 10 percent disability rating. Prior to May 2010, the Veteran's primary symptom was pain, with some associated stiffness and fatigability. Although the Veteran contends that these symptoms were more than merely mild, on an objective basis they did not rise to the level of a compensable disability picture. Specifically, there was no evidence of the weight-bearing line being over or medial to the great toe, no evidence of pain on manipulation during examination, and no evidence of inward bowing of the Achilles tendon. As such, the noncompensable (0 percent) disability rating assigned was appropriate. At the December 2011 VA examination, the examiner specifically described the Veteran's disability as moderately disabling and specifically stated that the attributes of a higher disability rating, 20 percent for marked disability, i.e., marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities were not shown. Rather, the Veteran's disability picture is consistent with the assigned 10 percent disability rating, in that the weight-bearing in both feet is medial to the great toe, and pronation is described as only moderate. Thus, the Veteran's disability picture does not meet or more nearly approximate a still higher, or 20 percent, disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5276. Cervical Spine In February 2006, the Veteran was seen by a private physician for neck pain and a sense of grating when he turned his head to the left. He was having trouble doing any work over his head and X-rays showed significant arthritis. Range of motion of the cervical spine showed flexion to 50 degrees, extension to 30 degrees, left rotation to 60 degrees and right rotation to 70 degrees. On VA examination in December 2006, the Veteran reported constant neck pain ranging from 5 out of 10 to 8 or 9 out of 10 in intensity. He had flare-ups of pain twice a day lasting for several hours. He did not wear a neck brace. He reported pain radiating over the top of the shoulders and trapezius, but not down the upper extremities. Physical examination showed no deformities and a normal lordotic curve. There was no spasm or guarding, but there was tenderness in the left proximal trapezius. Cervical spine flexion was to 45 degrees with pain beginning at 30 degrees, extension to 35 degrees, lateral flexion to 30 degrees bilaterally and lateral rotation to 45 degrees bilaterally, all with pain at the end points. He had normal strength and sensation in his bilateral upper extremities. The examiner diagnosed cervical degenerative disc disease and degenerative joint disease at multiple levels. On VA examination in October 2009, the Veteran reported worsening neck pain for which he used muscle relaxers and heat. The pain awakened him at night and often radiated into the left arm. His pain was normally at 8 to 9 out of 10 in intensity, and got worse with driving, turning his neck, and shoveling snow. He experienced paresthesias and numbness, stiffness, and spasms. He described his neck pain as sharp, piercing, and stabbing, with radiation of pain and tingling to his left arm. He had weekly flare-ups lasting for hours when he moved wrong and stated he was unable to work when he had a flare-up. On physical examination he had normal posture and spinal curvatures, but with spasm, guarding, tenderness, and pain on motion in the cervical sacrospinalis muscles. Range of motion testing showed flexion to 24 degrees, extension to 26 degrees, left lateral flexion to 20 degrees, right lateral flexion to 18 degrees, and lateral rotation to 40 degrees bilaterally. There was objective evidence of pain on motion and following repetitive motion, with additional limitations of motion after repetition due to pain. After repetitive motion, the Veteran had only 20 degrees of flexion and extension and lateral flexion was limited to 10 degrees bilaterally. X-rays from December 2006 were reviewed and showed moderately severe multilevel intervertebral disc disease and degenerative involvement throughout the mid and lower cervical spine. A cervical spine MRI conducted in March 2010 showed some straightening of the cervical spine and diffuse disc degeneration with narrowing and desiccation of the discs. A small questionable left-sided herniation was observed at C7-T1, that could potentially impinge on the left C8 nerve root was noted. On VA examination in December 2011, the Veteran reported worsening neck pain for which he used muscle relaxers and heat. The pain awakened him at night and often radiated into the left arm. His pain was normally at 8 to 9 out of 10 in intensity, and got worse with driving, turning his neck, and shoveling snow. He experienced paresthesias and numbness, stiffness, and spasms. On physical examination he had normal spinal contours and normal posture, spasm and guarding in left and right sacrospinal muscles, and pain with motion. Range of motion testing showed flexion to 10 degrees, extension to 15 degrees, left lateral flexion to 10 degrees, right lateral flexion to 15 degrees, and lateral rotation to 40 degrees bilaterally. There was objective evidence of pain with motion and following repetitive motion, as well as additional limitation after repetitive motion due to pain. The examiner noted a diagnosis of cervical degenerative disc disease and joint disease, with moderate effects on usual daily activities of chores, shopping, exercise, recreation, and traveling. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has 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, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997); 38 C.F.R. § 4.59 (2013). Pain without accompanying functional limitation cannot serve as the basis for a higher rating. Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). Disabilities affecting the spine are rated either under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) or under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. For purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). As the record does not show and the Veteran has not alleged any incapacitating episodes, the IVDS Formula does not apply here. The General Rating Formula provides a 10 percent disability rating for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is assigned for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent disability rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent disability rating is assigned for unfavorable ankylosis of the entire cervical spine. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Prior to December 20, 2011, the Veteran had range of motion in his neck of at least 24 degrees of flexion (October 2009 examination) and combined range of motion in the cervical spine of 128 degrees (26+24+20+18+40+40=128). These findings are within the range assigned for a 20 percent disability rating. Moreover, there was no evidence of ankylosis, favorable or unfavorable, during that time period. Even when the additional limitation of motion resulting from increased pain is considered, the Veteran still had 20 degrees of flexion, which still places it within the criteria for a 20 percent disability rating. While the Veteran has reported severe pain, including pain which keeps him from sleeping at night, the pain has not been shown to cause additional limitation of motion that would warrant a higher rating. The Board has considered the implications of DeLuca and notes that the examinations showed no additional functional limitations other than pain resulting from movement, which is insufficient to warrant a higher disability rating. Mitchell, 25 Vet. App. at 43. The ratings take into account the additional limitations attributable to pain, but such limitation does not rise to the level required for a higher rating. As of December 20, 2011, the Veteran's cervical spine disability showed a demonstrable worsening, specifically with respect to decreased range of motion. At the December 2011 examination, the Veteran had flexion to only 10 degrees, which is consistent with the assigned increased disability rating of 30 percent. A still higher disability rating is not warranted, in that ankylosis of the cervical spine is not demonstrated. In addition, the Board has considered the question of neurological impairment resulting from the cervical spine disability. Other than the left arm radiculopathy, which is separately rated and separately considered in this decision, the Veteran has shown no evidence of neurological impairment due to his neck disability. Therefore, a separate or additional disability rating for neurological findings is not warranted. Lumbar Spine Disability At an October 2004 VA examination, the Veteran reported pain in his low back subsequent to a motor vehicle accident in 1983. He had daily discomfort and stiffness, which was aggravated by twisting, prolonged standing or sitting, bending, or lifting. He had not experienced any loss of control of his bowel or bladder. He did not use a cane, crutches, or walker nor did he use a back brace. He was able to perform the activities of daily living. On physical examination, there was slight palpable tenderness over L3-4, but the examiner did not feel that X-rays were warranted. Range of motion testing showed flexion to 85 degrees with mild discomfort, and extension to 25 degrees, left lateral flexion to 30 degrees, right lateral flexion to 25 degrees, and lateral rotation to 30 degrees bilaterally, all without discomfort. In February 2006, the Veteran was seen by a private physician for complaints of low back pain and stiffness, with no true sciatica. He reported that he often had to sit on his right versus his left buttock. On physical examination he had a normal gait and limited motion of the lumbosacral spine but adequate reversal of the lumbosacral curve. On a December 2006 VA examination, the Veteran reported chronic intermittent low back pain with radiation into the left buttock but not down the legs. Activities such as digging, lifting, transplanting trees and splitting firewood all increased his pain. His walking was limited to 400 feet before he needed to stop and rest. He did not use a brace or any assistive device and he denied experiencing any bowel, bladder, or erectile dysfunction. Physical examination showed no palpable tenderness, spasm, or guarding. Range of motion sowed flexion to 60 degrees with pain beginning at 40 degrees, extension to 30 degrees, left and right lateral flexion to 20 degrees, and left and right lateral rotation to 25 degrees, all with pain at the end points. Repetitive motion did not result in any weakness, fatigue, lack of endurance, or incoordination. The examiner diagnosed lumbar degenerative disc disease and degenerative joint disease at L4-5 and L5-S1. At a VA examination in May 2010, the Veteran reported continued chronic, intermittent low back pain, particularly in the morning. The pain increased with activities such as digging, lifting, and cutting firewood, as well as carrying a grocery bag. He had some numbness and paresthesias, but denied all other neurological symptoms. He reported additional symptoms of stiffness, spasms, pain, and decreased motion, as well as radiating burning pain into both buttocks. He reported that he was unable to walk for more than a few yards without needing to rest. Physical examination showed normal posture and gait with spasm in the left sacrospinalis, tenderness and pain bilaterally, but no evidence of weakness, atrophy, or guarding. Motor examination showed normal muscle function. There was evidence of sensory loss on the left side in the region of the sciatic nerve, and some of the Veteran's reflexes were diminished bilaterally. Range of motion testing showed flexion to 30 degrees, extension to 15 degrees, lateral flexion to 15 degrees on the left and 20 degrees on the right, with lateral rotation to 20 degrees bilaterally. There was evidence of increased pain with repetitive motion, but no additional functional impairment or limitation of motion due to weakness, incoordination, excess fatigability, flare-ups, or pain. On X-ray, there was evidence of intervertebral disc disease and moderate degenerative joint disease in the lumbar spine, as well as convex scoliosis. The examiner also noted that the Veteran had neurological complaints of numbness and tingling in the left leg which were attributable to sciatica. Disabilities affecting the spine are rated either under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) or under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. For purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). As the record does not show and the Veteran has not alleged any incapacitating episodes, the IVDS Formula does not apply here. The General Rating Formula provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. The criteria for rating a disability of the spine are to be applied regardless of the presence or absence of symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. 38 C.F.R. § 4.71a. The Veteran's lumbar spine disability was assigned a 10 percent disability rating effective June 16, 2004 and 20 percent effective December 15, 2006. He seeks both a higher current disability rating and an earlier effective date for the 20 percent disability rating. Based on the evidence set forth above, prior to December 15, 2006, the assigned disability rating of 10 percent was not sufficient. Rather, the October 2004 VA examination showed that the Veteran's range of motion was flexion to only 85 degrees and combined range of motion of only 225 degrees (85+25+30+25+30+30 = 225). These findings are consistent with the rating criteria for a 20 percent disability rating. A still higher disability rating was not warranted as there was no evidence of additional functional limitation other than pain. The evidence further shows that as of May 6, 2010, the Veteran's lumbar spine disability picture had worsened. At that time, his range of motion findings were flexion to only 30 degrees, which satisfies the rating criteria for a 40 percent disability rating. A still higher disability rating is not warranted as ankylosis of the thoracolumbar spine has not been shown. However, the question of higher disability rating for low back impairment includes both orthopedic and neurological impairments. A review of the evidence indicates that the Veteran had neurological symptoms due to his low back disability, specifically radiculopathy of the left leg, at the May 6, 2010 VA examination. Therefore, an earlier effective date should be assigned for this separate disability rating of the left leg resulting from the low back disability. The assigned effective date should be May 6, 2010, the date of the VA examination at which radicular symptoms in the left leg were first documented. No other neurological impairments have been demonstrated and this specific impairment (left leg radiculopathy) was not documented prior to May 6, 2010. Shoulder Disabilities At an October 2004 VA examination the Veteran reported a history of left shoulder strain, with continued dull aching pain after lifting, pushing, pulling, or using certain tools. He had morning stiffness but no subluxation, instability, giving way, or locking. Working with his hands above his head caused increased discomfort, although he was able to perform the tasks of everyday living. On physical examination there was slight palpable tenderness in the left mid-trapezius muscle, but no discomfort on shoulder shrug, no obvious muscle wasting, loss of grip, or neurological deficiency. Range of motion in the left shoulder was flexion to 165 degrees with mild discomfort, extension to 60 degrees, abduction to 165 degree, internal rotation to 70 degrees, and external rotation to 90 degrees, all without discomfort. X-rays of the left shoulder revealed no obvious abnormalities and the examiner diagnosed past left shoulder strain, now resolved. In August 2005, the Veteran was treated by a private provider for neck and shoulder pain related to his motor vehicle accident in service. He reported that his whole left arm and shoulder were less strong than previously. He did not describe numbness, tingling or true radicular-type components down his arm. He had significant crepitus in his shoulder as well as some stiffness and some tenderness on external rotation. The provider noted chronic arthritic and degenerative changes of the shoulder and neck, very likely related to the injuries sustained in service. On private examination in February 2006, the Veteran reported soreness in his shoulders. He had painful abduction but was able to manage 180 degrees and had had good external rotation. At the VA examination in December 2006, the Veteran reported continued pain in both shoulders, as well as weakness and stiffness, but no swelling, heat, redness, instability, or locking. He had increased pain with overhead reaching and dressing, and occasionally awakened at night with shoulder pain. Physical examination showed no evidence of asymmetry or atrophy. Range of motion was 0 to 110 degrees forward flexion with pain at 110 degrees, 0 to 120 degrees of abduction with pain at 90 degrees in the right shoulder and at 120 degrees in the left shoulder, external and internal rotation to 80 degrees on the right side with pain at 80 degrees, and external rotation to 90 degrees and internal rotation to 80 degrees on the left side with pain at the end points. The left shoulder showed weakness with abduction and forward flexion against resistance, as well as incoordination and lack of endurance and fatigue on repetitive motion. There was tenderness to palpation in both shoulders and a positive impingement test in both shoulders. X-rays of both shoulders were normal. On a May 2010 VA examination, the Veteran reported continuing pain in both shoulders as well as stiffness and weakness, but denied experiencing swelling, heat, redness, instability, or locking. He had flare-ups of pain every morning for three to four hours, and experienced increased pain with overhead reaching and dressing. Physical examination showed no deformity, giving way, weakness, or incoordination in his shoulders, but there was evidence of pain, stiffness, tenderness, and decreased range of motion. Range of motion in the left shoulder was flexion to 85 degrees, abduction to 90 degrees, and internal and external rotation to 45 degrees; in the right shoulder he had flexion to 90 degrees, abduction to 90 degrees, and internal and external rotation to 45 degrees. There was objective evidence of pain with repetitive motion, but no additional limitation of motion or function as a result of weakness, incoordination, excess fatigability, flare-ups, or pain. X-rays from 2006 were reviewed and noted to show no abnormality in either shoulder. The examiner noted that arthritis was not shown despite an earlier diagnosis. At the VA examination in December 2011, the Veteran reported continuing pain, weakness, and stiffness in both shoulders, with pain spiking in the morning for the first three to four hours. He had increased pain with overhead lifting and dressing, and he experienced earlier onset of arm fatigue. Physical examination showed evidence of tenderness, stiffness, and pain with decreased range of motion, but no dislocation, subluxation, or locking episodes. Range of motion testing showed flexion to 90 degrees in the left shoulder and 80 degrees in the right shoulder; abduction to 70 degrees in the left shoulder and 80 degrees in the right shoulder; left internal rotation to 45 degrees with 40 degrees in the right shoulder; and external rotation to 45 degrees bilaterally. There was no additional limitation of motion as a result of weakened movement, excess fatigability, flare-ups, incoordination, or pain. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Arthritis as a general disability is rated under Diagnostic Codes 5003 and 5010. Generally, disabilities involving joints are rated based on range of motion within the joint. However, when the limitation of motion of the specific joint is noncompensable, a rating of 10 percent is applicable for arthritis visible on X-ray and objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a. Disabilities of the shoulders are rated under Diagnostic Codes 5200 to 5203 and are largely based on limitation or impairment of movement in the shoulder. Normal ranges of motion of the shoulder are flexion (forward elevation) from 0 degrees to 180 degrees, abduction from 0 degrees to 180 degrees, external rotation from 0 degrees to 90 degrees, and internal rotation from 0 degrees to 90 degrees. 38 C.F.R. § 4.71, Plate I. Diagnostic Code 5200 provides disability ratings based on ankylosis of the scapulohumeral articulation. Inasmuch as ankylosis is not demonstrated here, these rating criteria are not applicable. Diagnostic Code 5202 provides ratings for other impairment of the humerus, specifically malunion, recurrent dislocation, fibrous union, nonunion or flail joint, and loss of humeral head or flail shoulder. As none of those impairments are reflected in this record, these criteria are likewise not applicable here. Diagnostic Code 5203 provides ratings for other impairment of the clavicle or scapula, including malunion, nonunion, and dislocation. Again, the record shows no evidence of any of these impairments and the rating criteria need not be considered. Diagnostic Code 5201 provides that limitation of motion of the arm at the shoulder level is rated 20 percent for the major shoulder and 20 percent for the minor shoulder; limitation of motion of the arm midway between the side and shoulder level is rated as 30 percent for the major shoulder and 20 percent for the minor shoulder; limitation of motion of the arm to 25 degrees from the side is rated as 40 percent for the major shoulder and 30 percent for the minor shoulder. 38 C.F.R. § 4.71a. The Veteran's shoulder disabilities have each been rated as 10 percent effective June 16, 2004 and 20 percent as of May 6, 2010. He seeks a higher current disability rating for each shoulder and an earlier effective for each 20 percent disability rating. Based on the evidence set forth above, the Veteran's shoulder disability picture were each consistent with the 10 percent disability rating assigned prior to May 6, 2010. Specifically, VA examinations showed evidence of arthritis in both shoulders and noncompensable limitation of motion, even when considering the additional functional limitations due to weakness, increased fatigability, incoordination, flare-ups, or pain. As such, a 10 percent rating for each shoulder under Diagnostic Code 5003 was appropriate. As of the May 6, 2010 VA examination, the Veteran's ranges of motion in each shoulder were reduced to a compensable level, that is, to flexion of 85 degrees and abduction to 90 degrees, approximately the range of motion of the arm at shoulder level. A more restricted range of motion, that is, limitation of motion of the arm to only 25 degrees from the side, has not been shown in either shoulder. There was no evidence of any additional limitation of motion as a result of weakness, excess fatigability, incoordination, flare-ups, or pain. Thus, a still higher disability rating is not warranted for either shoulder. Knee Disabilities On VA examination in October 2004, the Veteran reported pain in both knees, with no history of subluxation or dislocation. The pain was worse with squatting, using stairs, walking on uneven ground, and prolonged standing. On physical examination there was no effusion, ecchymosis, crepitus, or laxity of ligaments. Deep tendon reflexes were intact and stability testing was normal. Range of motion in both knees was from 0 to 135 without pain. The examination was "completely within normal limits" and the examiner stated that there was no organic condition in either knee. At a hearing before a Decision Review Officer in April 2006, the Veteran testified that since the accident in service, he had experienced knee pain, cracking and snapping, and that his knee caps slid across his knees. If he stood for too long or walked for long distances, he tended to have swelling as well. At the December 2006 VA examination, the Veteran reported continued pain in both knees, with weakness and morning stiffness, and occasional locking and swelling in the right knee. He had increased knee pain with kneeling, squatting, prolonged walking, or long driving. He did not use any assistive devices, but had stopped working in part due to knee pain and now used a riding mower and riding snow blower at home due to knee pain. On physical examination, there was no evidence of effusion, erythema, or increased warmth. Range of motion testing showed flexion to 110 degrees, with pain beginning at 100 degrees, and extension to 0 degrees on the right side and flexion to 100 degrees and extension to 0 degrees on the left side, with pain at the end points. There was no instability or patellofemoral crepitus, and repeated motion did not result in weakness, fatigue, lack of endurance, or incoordination. The examiner diagnosed mild medial joint space degenerative changes in both knees. On the May 2010 VA examination, the Veteran reported continuing pain in his knees, especially in the morning when there was stiffness and swelling on the right knee. He also had occasional locking of the right knee going up stairs, but had not had any episodes of giving way. Activities such as kneeling, squatting, prolonged walking, standing, climbing ladders, and prolonged driving tended to increase his pain. He did not wear knee braces or use any assistive devices. Physical examination showed no evidence of deformity, giving way, instability, or weakness. Pain and stiffness were present bilaterally, as was crepitus, and there was limitation of motion. Range of motion testing showed flexion to 90 degrees in the left knee and 100 degrees in the right knee, with extension to 0 degrees bilaterally. There was objective evidence of painful motion in both knees but no additional functional impairment or limitation of motion due to weakness, incoordination, excess fatigability, flare-ups, or pain. X-rays showed mildly diminished medial compartment joint space bilaterally. On December 2011 VA examination, the Veteran reported continued pain in both knees, particularly upon waking in the morning. He had weakness and morning stiffness in the right knee with possible morning swelling and occasional locking going up stairs. Pain was increased with kneeling, squatting, prolonged walking, standing, long driving, and climbing ladders. He reported that his pain often got worse later in the day. Physical examination showed evidence of pain, stiffness, crepitus, and decreased range of motion, with no evidence of weakness, instability, giving way, deformity, incoordinations, effusion, or dislocation, subluxation, or locking episodes. He had an antalgic gait and reported that he was unable to stand for more than a few minutes or walk for more than a few yards. Range of motion testing showed flexion to 90 degrees in the left knee and 90 degrees in the right knee, with normal extension to 0 degrees bilaterally. There was objective evidence of pain after repetitive motion, but no evidence of any additional limited function due to weakness, incoordination, increased fatigability, flare-ups, or pain. At present, the Veteran's knee disabilities are each rated as noncompensable (0 percent disabling) prior December 15, 2006, and 10 percent as of that date. He seeks both a current higher disability rating and an earlier effective date for the 10 percent rating for each knee. Diagnostic Codes applicable to knee disabilities include those for limitation of motion, Diagnostic Code 5260 (limitation of flexion) or Diagnostic Code 5261 (limitation of extension), and Diagnostic Code 5257 for instability. In this instance, no instability has been shown and these rating criteria need not be discussed. In addition, the considerations with respect to arthritis discussed above, including Diagnostic Codes 5003 and 5010, are applicable here. Under Diagnostic Code 5260, flexion limited to 45 degrees is 10 percent disabling and flexion limited to 30 degrees is 20 percent disabling. Under Diagnostic Code 5261, extension limited to 10 degrees is 10 percent disabling, extension limited to 15 degrees is 20 percent disabling. Separate ratings may be assigned for limitation of flexion and extension. 38 C.F.R. § 4.71a. Prior to December 15, 2006, the Veteran's knee disabilities were consistent with the assigned noncompensable (0 percent) disability ratings. Despite the fact that the Veteran reported experiencing pain in both knees, on examination he had nearly full range of motion, up to 135 degrees of flexion, and did not demonstrate any objective evidence of painful motion. There was no evidence of effusion, crepitus, or ligament laxity. Even under the rating criteria for arthritis or painful motion under 38 C.F.R. § 4.59, where the examiner in October 2004 stated that there was no objective evidence of painful motion and no organic condition was shown in either knee, a compensable rating was not warranted. There is no additional evidence of any private examination or treatment which documented objective evidence of painful motion or additional functional limitation due to weakness, incoordination, increased fatigability, flare-ups, or pain prior to the December 15, 2006 VA examination. As of December 15, 2006, the Veteran's disability pictures with respect to his knees had worsened, yielding objective evidence of painful motion, albeit no compensable limitation of motion in either knee. As such, the criteria were met for a 10 percent disability rating under the provisions of 38 C.F.R. § 4.59. However, without any evidence of instability, compensable limitation of motion, or other impairment of function, to include as due to weakness, incoordination, increased fatigability, flare-ups, or pain, a still higher disability rating for either knee is not warranted. TDIU Total disability ratings for compensation may be assigned, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). In this instance, the Veteran's service connected disabilities affect a single body system and are considered a single disability for purposes of determining if schedular criteria for TDIU are met. With the above grant of the 40 percent rating for lumbar spine disability as of December 15, 2006, the schedular criteria for TDIU are met as of that date. Specifically, the 40 percent for lumbar disability satisfies the single disability ratable at 40 percent or greater requirement, and this rating in addition to 20 percent for cervical spine disability, 10 percent for each shoulder and 10 percent for each knee, and a 10 percent rating for tinnitus result in a combined rating of 70 percent. The record shows that the Veteran stopped working in 2003. The December 15, 2006 VA examination provides evidence that the service connected disabilities caused unemployability. This is also the date his service-connected disabilities resulted in a combined disability rating of 70 percent. The requirements for TDIU were met as of December 15, 2006. 38 C.F.R. § 4.16. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for a sleep disorder is denied. Entitlement to an initial disability rating of 20 percent for left arm radiculopathy is granted, effective from the date of service connection. Entitlement to a compensable disability rating for bilateral flat feet prior to May 6, 2010, and higher than 10 percent thereafter is denied. Entitlement to a disability rating higher than 20 percent for a cervical spine disability prior to December 20, 2011, and higher than 30 percent thereafter is denied. Entitlement to a disability rating of 20 percent for a lumbar spine disability as of June 16, 2004 and 40 percent as of May 6, 2010, is granted. Entitlement to an earlier effective date of May 6, 2010, for the assigned 10 percent separate disability rating for left leg radiculopathy is granted. Entitlement to a disability rating higher than 10 percent for a left shoulder disability prior to May 6, 2010, and higher than 20 percent thereafter is denied. Entitlement to a disability rating higher than 10 percent for a right shoulder disability prior to May 6, 2010, and higher than 20 percent thereafter is denied. Entitlement to an initial compensable disability rating for a left knee disability prior to December 15, 2006, and higher than 10 percent thereafter is denied. Entitlement to an initial compensable disability rating for a right knee disability prior to December 15, 2006, and higher than 10 percent thereafter is denied. Entitlement to TDIU effective December 15, 2006 is granted. REMAND The Board's remand in August 2011 instructed that an opinion as to the Veteran's employability be included in the VA examinations provided. There is no explicit opinion as to whether any of the Veteran's service-connected disabilities, alone or in combination preclude gainful employment. The Board is prohibited from assigning a TDIU on the basis of 38 C.F.R. § 4.16(b) in the first instance without ensuring that the claim is referred to VA's Director of Compensation and Pension for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1 (2001). Accordingly, the matter is REMANDED for the following action: 1. Ask the examiner who provided the December 2011 provide an opinion as to whether, prior to December 15, 2006, his service connected disabilities (headaches, cervical arthritis, radiculopathy of the left arm, bilateral pes planus, left deviated nasal septum, bilateral shoulder condition, tinnitus, low back disability, and bilateral knee disability) combined to preclude gainful employment for which his education and occupational experience would otherwise have qualified him prior to December 15, 2006. The claims folder must be sent to the examiner(s) for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should provide a rationale for this opinion. If the Veteran would have been capable of gainful employment, the examiner should provide examples of the types of work that he would have been capable of performing. 2. The agency of original jurisdiction should review the examination reports to ensure that they contain the information requested in this remand and is otherwise complete. Stegall v. West, 11 Vet. App. 268, 271 (1998). 3. Refer the claim for TDIU prior to December 15, 2006 to VA's Director of Compensation and Pension for adjudication in accordance with 38 C.F.R. § 4.16(b). 3. If the benefit on appeal remains denied, issue a supplemental statement of the case. Thereafter, the case should be returned to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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. 2013). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs